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United States v. Elmore

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

December 3, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
WILLIAM DALLAS ELMORE DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         I. Introduction

         This matter is before the court on Defendant William Dallas Elmore's (“Elmore”) motion to suppress, (DN 85), the report and recommendation of Magistrate Judge Lanny King on that motion (the “Report”), (DN 106), and objections filed thereto (DN 110). Elmore objects to the magistrate judge's decision not to suppress the S.D. card found in a keyless entry device. First, Elmore argues that the third search warrant was not sufficiently attenuated from the first two, allegedly, unconstitutional searches and is therefore fruit of the poisonous tree. Second, Elmore argues that the third search warrant was not supported by probable cause. Third, Elmore argues that the affidavit in support of the third search warrant was false and false by omission and he is therefore entitled to a Franks hearing. Fourth, in his motion to suppress, Elmore argues that the Louisville Metro Police's (“LMP”) continued possession of his Ford Mustang (“Mustang”) constitutes an illegal seizure and the third search warrant was the fruit of that illegal seizure.

         In response to Elmore's first argument, the magistrate judge found that the attenuation doctrine exception to the exclusionary rule applied to the third search. Second, the magistrate judge concluded that the third affidavit was supported by probable cause. Third, the magistrate judge concluded that Elmore was not entitled to a Franks hearing. Fourth, the magistrate judge did not reach the question of whether the LMP's possession of Elmore's mustang constituted an illegal seizure.

         As to the first argument, the Court disagrees with the magistrate judge's conclusion that the attenuation doctrine applies to the third search warrant. But, on the merits, the Court agrees that the S.D. card should not be suppressed since the third search warrant was not the product of any illegal government activity. As for the second argument, the Court finds that the third search warrant was supported by probable cause. As to the third argument, the Court finds that Elmore is not entitled to a Franks hearing. As to the fourth argument, the Court finds that the LMP's continued possession of Elmore's Mustang did not constitute an illegal seizure under the Fourth Amendment. Therefore, the Court will accept and adopt the Report as supplemented by this opinion and overrule Elmore's objections. As a result, the Court will deny the motion to suppress.

         II. Factual Background and Procedural History

         Elmore filed a motion to suppress on February 16, 2018. DN 42. On March 28, 2018, this Court referred the motion to Magistrate Judge Dave Whalin. DN 46. The magistrate judge issued his report and recommendation on April 23, 2018. DN 47. On October 30, 2018, this Court accepted the report and recommendation of the magistrate judge and issued a Memorandum Opinion denying Elmore's motion to suppress. DN 66. On November 21, 2018, Elmore's counsel filed a motion to withdraw from her representation of Elmore, DN 72, which was granted on December 17, 2018. DN 78. On December 20, 2018, Elmore's current counsel was appointed. DN 79.

         On May 17, 2019, Elmore filed a second motion to suppress. DN 85. On August 7, 2019, this Court referred the motion to suppress to Magistrate Judge Lanny King. DN 102. The magistrate judge issued his report and recommendation on August 27, 2019. DN 106. On October 4, 2019, Elmore filed objections to the magistrate's Report and Recommendations. DN 110.

         Elmore makes limited objections to the factual findings of the magistrate judge's Report. DN 110 at 2-3. Therefore, the Court adopts and repeats the factual findings of the magistrate judge in whole, noting Elmore's objections as it proceeds.

The Jefferson Circuit Court issued three search warrants. (Copies of warrants and supporting affidavits at Dockets # 42-1, 42-2, 42-3.[1]) The warrants authorized the affiant, Detective Joseph Wilkins, to search Defendant's Ford Mustang, his storage unit, and three keyless entry devices (key fobs). At the time of execution of the warrants, Defendant was in custody[2], and Detective Wilkins interacted with Mrs. Elmore for purposes of execution of the warrants. Mrs. Elmore gave Detective Wilkins (on three separate occasions) the key fob to the Mustang, the key to the storage unit, and two additional key fobs. The first and second searches did not result in discovery of any incriminating evidence. The third search resulted in discovery of incriminating images on a Toshiba 2GB Micro S.D. Card, found inside one of three key fobs. (Docket # 42-3 at PageID # 95.)
Detective Wilkins executed the first search warrant on June 22, 2016, and the second one on June 28, 2016. Sometime between June 28, 2016 and August 18, 2016, Mrs. Elmore contacted Detective Wilkins to discuss certain suspicions she had regarding the key fob to the Mustang. On May 20, 2019, Defendant filed a DVD copy of this phone conversation between Mrs. Elmore and Detective Wilkins.
In the conversation, Mrs. Elmore reminded Detective Wilkins that Defendant was scheduled to be released from custody soon and that Defendant would be reclaiming his Mustang.[3] Mrs. Elmore indicated that she had her suspicions about the key fob to the Mustang and suggested that Detective Wilkins might want to search inside to see if it contained child pornography while Detective Wilkins still had a “hold” on it (9:12).[4] Mrs. Elmore repeated several times that it had been “laying” on her conscience (1:40, 1:58, 2:11, 6:47) and that she had been “praying that it's not anything” (2:14, 2:40, 3:53). “It was a concern of mine, and I just wanted you to be aware before he gets … the car back, to maybe at least check it [i.e., the key fob] and see” (5:47-57). Mrs. Elmore explained that, while she cared for Defendant, her primary concern was that other little girls not be put in “harm's way” (4:36). “I felt like, if I didn't say anything and if there was something, then that … makes me just as guilty” as Defendant might be (7:41-52).
On August 18, 2016, a subsequent conversation occurred between Mrs. Elmore and Detective Wilkins in which Mrs. Elmore reported that she had located two additional key fobs and that she wanted Detective Wilkins to retrieve them. According to the affidavit in support of the third search warrant:
On August 18, 2016 I was contacted by Carolyn Elmore and she advised me that she picked up Williams (sic) Elmore from prison and told him about the search warrant on his vehicle as well as the search warrant on the storage unit. She advised me that when she told him about the car his attitude changed and he became overly concerned about the keyless entry devices and wanted to know if the police had all keyless entry devices. She advised him that the police did have all the devices. She stated his reaction was very concerning to her and she checked to be sure she turned over all the devices. She stated she then realized there were two other keyless entry devices that she removed from the one that was specifically for the above vehicle and the only one that was turned over to me when I conducted the search warrant for the vehicle. She advised me she wanted me to come and get the other two keyless entry devices because of William Elmore's behavior when they were discussing the keyless entry devices. She stated she was concerned and thought I should know about them and have them. … On August 18, 2016 I retrieved the two additional keyless entry devices from Carolyn Elmore.

         (Docket # 42-3 at PageID # 92.) The third search warrant on three key fobs was executed on August 19, 2016. (Id. at PageID # 95.) It resulted in discovery of incriminating images on a Toshiba 2GB ...


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