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United States v. Austin

United States District Court, D. New Hampshire

January 16, 2019

United States of America
v.
Damon Austin

          Georgiana L. Konesky, Esq., Paul A. Maggiotto, Esq., Debra M. Walsh, Esq., U.S. Probation, U.S. Marshal

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

         Damon Austin is charged with two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He moves to suppress evidence discovered during a search of his home, pursuant to a search warrant, and requests a hearing on his motion. The government objects.

         Background[1]

         On April 14, 2018, the Somersworth (New Hampshire) Police Department was notified by a radio call that a man had pulled a gun and pointed it at another person on Union Street in Somersworth. Doc. 22-1 at *1. The police were told that the man with the gun left the scene of the incident in a blue SUV driven by a woman. The police determined that the SUV was registered to Tanya Phillips.

         Officers Geary and Mulcahey responded to the area and stopped the SUV. Geary arrested the passenger in the SUV, Damon Austin, and Mulcahey arrested the driver, Tanya Phillips. In his search of Austin, Geary found “an extended magazine for a Glock .40 caliber pistol” in Austin's pants pocket.

         Officer Anthony DeFrancesco arrived during the arrest process. As he approached, DeFrancesco asked Geary and Mulcahey where the gun was. Austin yelled that the gun was in the front seat of the SUV. DeFrancesco looked in the passenger side front window and saw a Glock pistol on the floor. An infant child and two dogs were also in the SUV. DeFrancesco removed the gun and secured it.

         The officers arranged for the SUV to be towed and for relatives to take the infant and dogs. Geary and Mulcahey took Phillips and Austin to the Somersworth Police Department for booking.

         DeFrancesco went to 18 Union Street in Somersworth where the reported gun threatening incident had occurred. He talked to Christopher and Elisa Brown, who lived there. Christopher Brown told DeFrancesco that Damon Austin was his cocaine supplier and that he had been “hanging out” with Austin for three months. He also said that Austin had been staying at the Browns' house for three days and that he and Austin had been getting high in the basement.

         Brown further explained that Elisa, his wife, told them that morning that they had to leave the house. Austin refused to go, which caused an issue between Elisa and Christopher. Christopher believed that Elisa was leaving him. Later he had multiple phone conversations with Austin, which included Brown threatening to kill Austin.

         Elisa told DeFrancesco that her husband and Austin had been hanging out in the basement a lot. She said that they just talked. That morning, however, Elisa woke up at 3:00 am and discovered that Austin was in the basement with a woman, whom she identified as Jess. Elisa told them all that they had to leave her house and argued with Austin about leaving.[2] Austin threatened to punch her in the face. Elisa said she also argued with her husband and demanded that he get Austin and Jess to leave.

         Christopher Brown went to work and then walked home, finding the house empty. He was standing outside smoking when Tanya Phillips drove up in her blue SUV. Austin jumped out of the passenger side of the SUV, and Brown and Austin got into a heated argument.[3] During the argument, Austin walked toward Brown and pulled a gun and magazine out of his right front pocket. Brown said the gun was a Glock, which he knew because he had been with Austin when he bought it in exchange for crack cocaine. Austin put the magazine in the gun, chambered a round, and pointed the gun at Brown's face. Brown got a knife from the porch. Austin went back to the SUV and said he would be back after dark, which Brown interpreted to mean that Austin would come back to shoot the house up. Brown also said that Phillips was there during the incident, yelling at both of them.

         Brown told DeFrancesco that Austin did not have a gun when he was at his house that morning. He also said that he knew Austin stored the gun at his home at 17B High Street in Somersworth. Brown said that Austin sold crack, cocaine, and marijuana, and that he made crack at that house. Brown described the process for making crack and where he had seen Austin's cooking items and crack in the kitchen at that house.

         Brown said he was last at Austin's home two days before the incident, when he bought a gram of cocaine. He said that ninety percent of his drug purchases from Austin were done there and that he had seen crack and cocaine at the house in the last two days. Brown said that there were two black safes in the house, one in the dining room and one in the bedroom. He said that Austin kept drugs, guns, and money in the safes. He also said that he estimated there were ten more guns in the dining room closet and that Austin had told him that he hid guns and money all over the house.

         At the police department, officers checked the serial No. of the Glock gun on the “NCIC” and discovered it had been stolen during a burglary in Saco, Maine. Phillips was read her Miranda rights, waived them, and gave a statement to DeFrancesco. She confirmed that she drove Austin to the Browns' house, where he was supposed to pick up a gaming system, but denied any other involvement in the incident. She said she did not know Austin had a gun with him and denied that there were any guns in the house. She confirmed that there was ...


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