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United States v. Cannon

United States District Court, E.D. Michigan, Southern Division

December 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DMARIO DWAYNE CANNON, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, (DOC. 21), MOTION FOR A FRANKS HEARING, (DOC. 22), AND MOTION TO SUPPRESS STATEMENTS, (DOC. 23).

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Defendant 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 DENIED.

         I. Background

         Cannon 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.

         Witnesses 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. (Id.).

         Clinton 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 221).

         Officers 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.).

         Officers 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.

         Detective 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. 21-2).

         The 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 PageID 64).

         The 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 64).

         The 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 Administration.

         The ninth paragraph summarizes the investigation. (Doc. 21-2 at PageID 65).

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).

         The 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 20, 2017.

         Officers 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.

         A 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.

         Officers 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 ...


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