United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE, (DOC. 21), MOTION FOR A FRANKS HEARING, (DOC. 22),
AND MOTION TO SUPPRESS STATEMENTS, (DOC. 23).
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Dmario Dwayne Cannon is charged with being a felon in
possession of a firearm in violation of 19 U.S.C. §
922(g). This matter is presently before the Court on
Cannon's Motion to Suppress Evidence under the Fourth
Amendment, (Doc. 21), Motion for a Franks Hearing,
(Doc. 22), and Motion to Suppress Statements under the Fifth
Amendment, (Doc. 23). Oral argument was held on October 19,
2017. For the reasons stated below, Cannon's motions are
lived in Apartment 101 of the Newport Apartments on Lotus
Street in Clinton Township, MI, with his girlfriend, his
daughter, and three year old stepson. On June 20, 2017,
Cannon's stepson shot himself while playing with other
children outside the Newport Apartment complex. He died
shortly thereafter at McLaren Hospital.
reported the shooting to 911 around 1:00pm. (Doc. 23-9). They
stated that a child shot himself and was being rushed to the
hospital. (Id.). They could not locate the gun.
Township Police Department (CTPD) officers responded by to
McLaren Hospital and the Newport Apartment complex around
1:00pm. Officers at McLaren Hospital interviewed the
child's family. Cannon stated that he was asleep inside
the apartment and woke to his girlfriend screaming that their
child had been shot. (Doc. 29-2 at PageID 221). She entered
their apartment and Cannon saw a neighbor holding the child
by the front door. (Doc. 29-2 at PageID 221). Cannon got
dressed and drove them to the hospital. (Doc. 29-2 at PageID
at the apartment complex interviewed multiple witnesses. Some
indicated that the child was carried to Apartment 101, where
he lived with his family, before departing for the hospital.
(Doc. 22-3 at PageID 96). Witnesses did not know if anyone
else had been injured. (Id.). They also reported
that the child may have shot himself with a gun belonging to
Lamonte Odell Johnson, also known as “Bop.” One
witness reported that Johnson probably took the gun after the
shooting. Johnson was arrested around 7:45pm that evening.
(Doc. 21-4 at PageID 69). Johnson stated that he saw the
injured child, panicked, and fled. (Doc. 22-5 at PageID 104).
He asserted that he did not have a gun. (Id.).
observed a blood trail progressing from the front of the
apartment complex to Cannon's building. (Id.;
Doc. 22-4 at PageID 100). There was a small blood smear in
the center of the front door of Apartment 101. (Doc. 22-4 at
PageID 100). Officers entered the apartment to search for
injured parties. Officer Christopher Smith entered first
after finding that apartment door open. (Doc. 22-3 at PageID
96). Officer Michael Vasilovski and Sergeant Coppola later
performed a secondary sweep. (Doc. 22-4 at PageID 100). Both
searches were negative.
J. Hertel allegedly arrived at the apartment complex 15-20
minutes after the shooting. About a dozen officers were
already on the scene. Sergeant Coppola updated Hertel on the
investigation and stated that a warrant was needed to search
the child's apartment. Approximately 15-20 minutes after
arriving on the scene, Hertel purportedly returned to the
police station to prepare the warrant and affidavit. (Doc.
affidavit was faxed to a Macomb County magistrate judge
around 3:05pm on June 20, 2017. The affidavit states the
place to be searched as the entire contents of XXXX Lotus,
Apartment 101 in the Newport Apartment complex. (Doc. 21-2 at
property searched for is specifically described as “any
firearms, firearm ammunition, spent firearm ammunition,
blood, fibers, clothing, any and all evidence of a firearm
shooting / death investigation. Any and all cell phones and
contents within the cell phones. Any and all computers and
contents within the computers.” (Doc. 21-2 at PageID
section listing “facts establishing probable
cause” includes nine short paragraphs. (Doc. 21-2 at
PageID 64). The first eight paragraphs discuss Detective
Hertel's training and experience. He was hired as a CTPD
officer in 1996 and promoted to detective in 2010. He was
involved with numerous investigations including crimes
against children, shots fired, and homicide/death. He had
over 800 hours of advanced police training courses as well as
an Associate Degree in Law Enforcement, a Bachelor's
Degree in Criminal Justice, and a Master's Degree in
ninth paragraph summarizes the investigation. (Doc. 21-2 at
Affiant was called to assist in the investigation of a
shooting / death investigation (Clinton Township Police
report number 17-23545). It was reported to the Clinton
Township Police Department that [redacted] (date of birth
XX/2014) was playing in the area in front of [redacted] Lotus
with other children. [Redacted] lives at [redacted] Lotus,
Apartment [redacted] with his parents. [Redacted] (three
years old) was apparently shot in the chest with an unknown
firearm. Calls to dispatch reported that the child may have
possibly shot himself with a silver revolver with wooden
grips. After being shot, [redacted] may have been taken back
to [redacted] Lotus, apartment [redacted] before going to the
hospital. [Redacted] was transported to McLaren Hospital by
his parents where he has been pronounced dead. Officers have
not been able to recover a firearm at this time.
(Doc. 21-2 at PageID 65).
magistrate judge signed the search warrant and listed the
date and time as June 22, 2017, 3:35pm. The parties agree
that the date is incorrect - it was actually signed on June
searched Cannon's apartment on the afternoon of June 20,
2017. They found a Kimber .45 caliber pistol loaded with
seven rounds, a bag of marijuana, scales, a black ski mask, a
Blue Cross insurance card belonging to Cannon, and court
papers belonging to Cannon. This firearm was not the weapon
used by the deceased child. Officers purportedly still have
not located that gun.
criminal complaint was filed on July 19, 2017. Cannon was
arrested on July 20, 2017. Two officers, Agents Herrara and
CTPD Detective Gilbert, interrogated Cannon. The officers
stated that Cannon was being charged as a felon in possession
of a firearm. The officers read Cannon his Miranda
rights. Cannon stated that he understood his rights. Officers
then discussed a waiver, noting that, even after signing a
waiver, Cannon could stop talking at any point.
then discussed Cannon's options. First, they could book
Cannon at that moment. Officers advised that Cannon would
likely be detained, then indicted. They confirmed that this
was Cannon's first federal case and stated that he would
face mandatory minimums. Cannon asked if this meant a maximum
of five years. (Doc. 30-3 at PageID 279). The officers
clarified that only state charges used that approached. Agent
Herrara stated that federal cases had a mandatory minimum of
five years and that there is no parole in the federal system.
Cannon said he did not want to ...