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The Journal Gazette

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Tuesday, August 07, 2018 1:00 am

Man facing bomb charge wants evidence tossed

MATTHEW LEBLANC | The Journal Gazette

A Fort Wayne man who police say sold drugs and kept bombs and guns inside his High Street apartment wants a federal judge to exclude that evidence from his trial.

Shawn M. Bacon, 37, argues in documents filed in U.S. District Court in Fort Wayne that police used questionable tactics to find probable cause to obtain a warrant to search the apartment.

At issue are separate “controlled buys” in late 2017 in which police used confidential informants and other unidentified sources to buy drugs from Bacon. In both cases, according to court documents, drugs were bought after police received tips he was selling methamphetamine, heroin and cocaine there and kept guns and other weapons inside the home.

“However, during each of these controlled buys the confidential informant was not the person who bought the drugs,” court documents say.

Instead, the people who bought the drugs were “not pre-buy searched nor post-buy searched,” raising questions about how the items were found as well as information sent to a judge to get a search warrant, according to a motion to suppress the evidence.

“Since the warrant was not based upon probable cause it was therefore violative of Bacon's Fourth Amendment right to privacy,” state documents signed by his lawyer, Thomas N. O'Malley.

Bacon was arrested in December, after callers told police about the weapons and drugs. Investigators said they found at least three bombs, 22 guns, a Taser, a ballistics vest and thousands of rounds of ammunition.

Police also found marijuana, heroin, methamphetamine, cocaine, ledgers, scales, plastic bags and other paraphernalia in the apartment, a probable cause affidavit alleges.

Federal prosecutors filed a 10-count indictment in January.

U.S. Attorney Thomas L. Kirsch II argues in a 20-page response to Bacon's motion that paperwork used to secure the warrant established probable cause. The response, filed Friday by Assistant U.S. Attorney Leslie J. Miller Lowery, discounts an implication from Bacon that “the drugs could have come from someone else or even the third parties themselves.”

Evidence shouldn't be excluded because “a practical, common sense reading of the December 17, 2017, affidavit established probable cause to issue a search warrant for Bacon's High Street residence,” prosecutors argue in court documents.

“Bacon's arguments are without merit,” the response states.

He must reply to prosecutors by Sept. 4, according to an order from Magistrate Paul R. Cherry.

A trial not been scheduled.