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United States v. Elmore

United States District Court, W.D. Kentucky, Louisville

October 29, 2018



          Charles R. Simpson III, Senior Judge United States District Court

         I. Introduction

         This matter is before the court on Defendant William Dallas Elmore's (1) ex parte request to represent himself (DN 56), the magistrate's report on that request (DN 61) (“Pro Se Report”), and objections filed thereto (DN 62) and (2) motion to suppress (DN 42), the magistrate's report on that motion (DN 47) (“Suppression Report”), and objections filed thereto (DN 54). For the following reasons, Elmore's request to represent himself and motion to suppress will be denied and the magistrate's reports will be accepted.


         Factual Background and Procedural History

         Elmore makes limited objections to the factual findings of the magistrate. Therefore, the Court adopts and repeats the factual findings of the magistrate in whole, noting Elmore's objections as it proceeds.

On May 23, 2012, Elmore pled guilty to two counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). (No. 3:11-CR-54-JHM, DN 42).[1] The District Judge sentenced Elmore to 51 months in prison to be followed by 10 years of supervised release. (Id., DN 66).
Around February 2, 2016, Elmore violated the terms of his supervised release by using a computer to view Spanish videos of physicians performing exams on young naked girls and to view autopsy videos of young rape victims. (Id., at DN 93). As a result of these violations, United States Probation Officers and law enforcement officials executed a search on Elmore's residence and recovered adult pornography magazines, unauthorized cell phones, an unauthorized external hard drive, and a duffel bag filled with approximately 30 pairs of little girls' underwear. (Id.). Elmore's Probation Officer also testified that he had received a call from the University of Louisville Police Department reporting that Elmore was using a school library computer to view child pornography. (Id.). The District Judge revoked Elmore's term of supervised release and imposed a sentence of six months custody to be followed by ten years of supervised release. (Id., at DN 95).
While Elmore was serving the revocation sentence, law enforcement officials obtained and executed the three state search warrants at issue in Elmore's present motion to suppress. Detective Joseph Wilkins of the Louisville Metro Police Department, who has been a law enforcement officer for seventeen years, sought the first search warrant on June 21, 2016, in Jefferson County Circuit Court, seeking to remove a “2004 Green Ford Mustange [sic] covertabe [sic] two door KY Plate 805-VFK and VIN 1FAFP45X64FK238964[2] . . . registered to William Dallas Elmore” from 10019 Morgan Ave., Fairdale, KY 40118 to be towed to the Louisville Metro Police tow lot to be searched for a USB thumb drive. (DN 42-1, at p. 1). The application for search warrant included an affidavit setting forth the following probable cause for issuance of the warrant. Detective Joseph Wilkins indicated that he, along with Detective Shutte interviewed an inmate at the Marion Federal Prison in Marion, Illinois, after being told by Correctional Officer Mark Steinmetz that the inmate interviewed had information regarding Elmore's case. (Id. at p. 2). The inmate indicated he was housed with Elmore and that Elmore described to him how he has sexually abused a seven year old victim in Louisville, Kentucky, and described the family of the victim as told to him by Elmore. (Id.). All of the information matched Detective Wilkins's case against Elmore and matched the information provided by the victim. (Id.). The sexual abuse described by the inmate also matched information provided “by another inmate in Kentucky who also claims was disclosed to him by Elmore.” (Id.). The inmate further stated that Elmore disclosed that he took naked photos of the victim and had them on a thumb drive, which he hid in a Ford Mustang in some type of LED lights on the vehicle. (Id.). Detective Wilkins noted that the inmate providing this information did not seek any special treatment or consideration. (Id.).
Acting on this information, Detective Wilkins located a Ford Mustang at 10019 Morgan Ave, Fairdale, Kentucky, 40118, ran the plates and found the vehicle was registered to William Dallas Elmore. (Id. at p. 3). Detective Wilkins also spoke with Detective Jeff Jewell of the University of Louisville Police, who investigated and charged Elmore in the case he is presently serving time for, and Detective Jewell advised that possession of child porn on a thumb drive is a known behavior of Elmore's. (Id.). On June 22, 2016, Detective Wilkins executed the first search warrant and seized “1 CD and 1 charger component”. (Id. at p. 5).
On June 29, 2016, Detective Joseph Wilkins sought a second search warrant, this time for “the premises known and numbered as 8601 National Turnpike, Fairdale, KY 40118, Unit number 291” to locate any electronic devices that could be used to record, store, transport, play, produce, and/or disseminate child pornography. (DN 42-2, at pp. 1-2). The affidavit for the second search warrant is identical to that of the first search warrant but adds that the unnamed inmate housed with Elmore also stated that Elmore “told him that he has a phone that his parole officer did not know about that contains possible child porn” and that “his phone was in a storage unit.” (Id. at p. 3).[3] Detective Wilkins's second affidavit also states that while executing the first search warrant and specifically while recovering Elmore's vehicle, he was able to confirm that Elmore had personal items in a storage unit located on National Turnpike. (Id. at p. 4). Detective Wilkins indicated that on June 21, 2016, he made contact with the employees at the “Storage Express” and confirmed that there was a unit 291 that was rented to Carolyn Elmore, Defendant Elmore's step-mother. (Id.). By June 23, 2016, Detective Wilkins had confirmed that Carolyn Elmore was renting the discussed storage unit to hold Defendant Elmore's belongings while he was in prison and Carolyn Elmore advised that she had the keys for the storage unit. (Id.). Five days later, Detective Wilkins executed the second search warrant and seized “1 Microsoft CD, 1 McAfee CD, 3 Dell CDs, 1 Roxio CD, 1 Thumb Drive, 1 Sim Card (AT&T)[.]” (Id. at p. 6). Then, on August 19, 2016, Detective Joseph Wilkins sought a third search warrant from the Jefferson County Circuit Court. (DN 42-3). This third warrant was for the search of the following described personal property:
Three Electronic keyless entry devices. The first is a Viper, model #7654V and is attached to a single Ford key that fits the above vehicle. The second is a Viper, model # 7941V and is attached to multiple key rings with one moven [sic] store key, multiple rewards cards, an elf key chain, and an the third keyless entry device. The third keyless entry device is made by Ford Motor Co. and is model # 1788104575.
(Id. at p. 2). The warrant sought to search the contents and/or inside of the above listed devices to locate any electronic devices that could be used to record, store, transport, play, produce, and/or disseminate child pornography. (Id.). Detective Wilkins's affidavit incorporated all of the information from the first two affidavits and included the following additional, new information. (Id. at pp. 3-4). On August 18, 2016, Detective Wilkins was contacted by Carolyn Elmore, Defendant Elmore's step-mother, and she advised that she picked up Elmore from prison and told him about the search warrants for his vehicle and storage unit. (Id. at p. 4).[4]
Carolyn Elmore explained that Defendant Elmore's attitude changed when she told him about the car and that he became “overly concerned about the keyless entry devices and wanted to know if the police had all keyless entry devices.” (Id.). She advised him that the police had all of the devices. (Id.). She was very concerned by Defendant Elmore's reaction and “checked to be sure she turned over all the devices.” (Id.). After checking she realized there were “two other keyless entry devices that she removed from the one that was specifically for the above vehicle” and that only one was turned over to Detective Wilkins when he conducted the search warrant on the vehicle. (Id.). Carolyn Elmore advised that she wanted Detective Wilkins to come get the other two keyless entry devices “because of [Defendant] Elmore's behavior when they were discussing the keyless entry devices.” (Id.). She stated she was concerned and thought Detective Wilkins should know about them and have them. (Id.).
On August 18, 2016, Detective Wilkins retrieved the two additional keyless entry devices from Carolyn Elmore at 11019 Morgan Ave., Louisville, Ky, 40118. (Id.). Detective Wilkins indicated that “[b]ased on his training and experience as a detective it is not uncommon for suspect's [sic] to hide SIM cards and S.D. cards in other electronic devices to prevent them from being discovered. As listed above, William Elmore also has a history of possessing child pornography and using electronic devices to store it.” (Id.). Detective Wilkins executed the third search warrant on August 19, 2016, and recovered “1 Toshiba 26B Micro S.D. 0752R34254V - Black.” (Id. at p. 7).
Based on the recovery of the Toshiba Micro S.D. card, as well as witness information, a federal grand jury sitting in the Western District of Kentucky returned a single-count Indictment charging Elmore with possession of child pornography in violation of 18 U.S.C. § 2256A(a)(5)(B) and 2252A(b)(2). (DN 1).

DN 47 at 1-5.

         Elmore filed a motion to suppress on February 16, 2018. DN 42. The United States responded. DN 44. On March 28, 2018, this Court referred the motion to the magistrate. DN 46. The magistrate issued his Suppression Report on April 23, 2018. DN 47. Elmore filed his objections to that report on June 5, 2018. DN 54. Meanwhile, on August 20, 2018, Elmore filed a motion for an ex parte hearing as to the status of counsel, requesting to represent himself pro se. DN 56. On August 23, 2018, this Court referred the motion to the magistrate and ordered ruling on the objections to the Suppression Report held in abeyance pending a ruling on the defendant's request to proceed pro se. DN 57. The magistrate issued his Pro Se Report on September 18, 2018. DN 61 (sealed). Elmore, responding pro se, filed his objections to that report on October 1, 2018. DN 62 (sealed). His counsel did not file an objection for herself or Elmore.

         III. Legal Standard

         The Court makes a de novo determination of the proposed findings or recommendations to which the parties have objected. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(3). To the extent that no objection is filed, the arguments are waived. Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff'd, 474 U.S. 140, 147-48 (1985).

         IV. Discussion

         A. Request to Proceed Pro Se

          “[A] person accused of a felony has a constitutional right to be represented by counsel and to have counsel appointed for him if he cannot afford one, or, alternatively, to represent himself in such proceedings.” United States v. Mosley,810 F.2d 93, 97 (6th Cir. 1987). There is no constitutional right to a “hybrid representation” involving both. Id. Such hybrid representation may be granted, within the discretion of the district court, but is generally disfavored because it increases the risk of undue delay, jury confusion, and conflicts as to trial strategy. Id. at 97-98. When counsel has “performed in a highly competent and ...

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