USA v. Cherry

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Roy Lee Cherry, Jr.,
Defendant.
No. CR-25-00604-001-TUC-JGZ (LCK)
REPORT AND
RECOMMENDATION
Before the Court is Defendant Roy Lee Cherry Jr.’s Motion to Suppress. (Doc. 53.)
Under Local Rule of Criminal Procedure 57.6, this matter was referred to a Magistrate
Judge for an evidentiary hearing and a report and recommendation. (Doc. 52 at 1; Doc. 69.)
Upon review of the parties’ briefs and testimony from the evidentiary hearing, the
Magistrate Judge recommends that the District Judge, after her independent review, deny
Defendant’s motion and allow this case to proceed to trial.
BACKGROUND1
On January 11, 2023, special agents with the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) were conducting an undercover investigation at John’s Guns &
1 Except for the last paragraph, information in the Background section is taken from
Agent Manoogian’s Affidavit in Support of a Search Warrant, which was part of the
Application for Search Warrant admitted as Exhibit 1 at the evidentiary hearing (see Doc.
61). See United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971) (“[A]ll data necessary
to show probable cause for the issuance of a search warrant must be contained within the
four corners of a written affidavit given under oath.”).
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Ammo in Tucson, Arizona. (Ex. 1, Affidavit ¶ 13.) While waiting for a suspect’s arrival,
agents became aware of a gun purchaser who made suspicious comments while completing
registration paperwork. (Id.) Based on the purchaser’s comments, agents suspected the
purchaser was a straw buyer (SB1) and initiated an investigation. (Id. ¶¶ 14-15.)
On or around April 17, 2023, further investigation into SB1 led agents to inspect the
registration forms of other gun purchasers at John’s Guns & Ammo. (Id. ¶ 19.) Upon
inspection of the forms, agents identified two potential straw purchases by a separate straw
buyer (SB2). (Id.) SB2 made individual gun purchases on March 16 and March 21, 2023.
(Id. ¶¶ 20, 22.)
On April 19, 2023, agents were able to track down SB2’s mobile phone number.
(Id. ¶ 25.) Close to that time, agents also learned that SB2 had purchased both March 2023
firearms for a man named “Roy,” who went by the alias “Memphis.” (Id. ¶ 26.) SB2
described Memphis as a short, black male with a short fade haircut, who had good teeth,
drove a white Mercedes Benz, and lived in the Tucson Foothills. (Id. ¶ 27.) SB2 told agents
that Memphis was present when she made one of her March 2023 gun purchases and that
he took possession of the firearm and put it in his car. (Id.) SB2 said that Memphis’s phone
number started with a 619 or 614 area code. (Id.) After interviewing SB2, agents returned
to John’s Guns & Ammo, where they questioned the owner about SB2’s story. (Id. ¶ 28.)
The owner confirmed that a black male of shorter stature with a fade type haircut came into
his store shortly before SB2 arrived, and he gave the owner money for the firearm that SB2
ultimately would purchase. (Id.)
On April 20, 2023, agents obtained call records for SB2’s mobile phone number (id.
¶ 29) and, one day later, the gun shop owner gave them a photograph from his shop’s March
21, 2023, surveillance footage (id. ¶ 31). The surveillance footage was time stamped 3:40
p.m. and depicted an unidentified black male entering the store. (Id.) The footage also
captured the man’s white BMW sedan. (Id.) Based on the time stamp, agents cross-
referenced the call records from SB2’s mobile phone. (Id. ¶¶ 32-33.) The agents identified
seven contacts between SB2 and a 615 phone number between 3:55 p.m. and 4:23 p.m. on
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March 21, 2023. (Id. ¶ 33.) The records documented forty-three additional contacts
between SB2 and the 615 number between March 10, 2023, and April 12, 2023. (Id. ¶ 36.)
Between April 21, 2023, and April 24, 2023, agents tracked the 615 phone number
to Defendant Roy Lee Cherry Jr. (Id. ¶ 38.) They ultimately learned that Defendant’s
mother was the registered owner of a white 2016 BMW sedan, with an Arizona license
plate of FSA1GG. (Id. ¶ 41.) On April 27, 2023, agents received law enforcement database
photographs of a white BMW, with Arizona license plate number FSA1GG, which had a
similar exterior appearance to the white BMW sedan depicted in the March 21, 2023,
surveillance footage from John’s Guns & Ammo. (Id. ¶ 47.) Agents also learned that
Defendant had more than one criminal conviction (id. ¶ 44); he was on felony probation,
which had been transferred from Tennessee to Pima County (id. ¶ 45); and SB1 also had
extensive phone contact with Defendant (id. ¶ 46).
On June 2, 2023, ATF Agent Matthew Manoogian applied for a warrant to search
the white BMW driven by Defendant (Ex. 1); and, on June 5, 2023, the warrant was
executed (Doc. 53 at 4). Upon search of the vehicle, agents seized a semi-automatic pistol,
one magazine, thirteen rounds of ammunition, clear baggies with suspected narcotics and
marijuana, and a digital scale, among other items. (Id.) The search warrant is at the heart
of the motion at hand.
FACTUAL FINDINGS2
On March 25, 2026, Magistrate Judge Bruce G. Macdonald held an evidentiary
hearing on Defendant’s Motion to Suppress.3 (Doc. 59.) Agent Manoogian testified on the
government’s behalf. (Doc. 66.) No other witnesses testified. (See id.)
2 Evidence presented at a suppression hearing is viewed in the light most favorable
to the government. United States v. Sherman, 430 F.2d 1402, 1404 (9th Cir. 1970).
3 After the evidentiary hearing, the referral of this criminal case was reassigned to
Magistrate Judge Lynnette C. Kimmins, due to the impending retirement of Magistrate
Judge Macdonald. (Docs. 68, 69.)
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Agent Manoogian has been employed as an ATF field agent since September 2010.
(Tr. at 9:3-4.4) Prior to entering the field in Tucson, Arizona, he underwent six months of
training in Brunswick, Georgia. (Id. at 9:17-18.) His subsequent on-the-job training in
Tucson covered investigations, firearms trafficking, narcotics, National Firearms Act
violations, and prohibited possessor cases. (Id. at 10:12-14.) Agent Manoogian has also
participated in training on search warrants. (Id. at 15:1-3.)
During search warrant training, Agent Manoogian learned how to draft the body of
a warrant, how to articulate the probable cause statement, and how to support an affidavit
with statements about his training and experience. (Id. at 15:7-14.) He is currently part of
the Operation Southbound Firearms Trafficking Task Force, which focuses on interstate
and international firearms trafficking, including the criminal possession and use of
firearms. 	(Id. 	at 	11:6-9.) 	Agent 	Manoogian 	has 	been 	involved 	in 	more 	than 	50
investigations involving prohibited gun possessors. (Id. at 14:23-24.) He estimates that he
has applied for approximately 75 to 80 federal search warrants. (Id. at 15:17-22.)
Agent Manoogian prepared the search warrant at issue in this case. (Id. at 16:24-
17:1.) At the hearing, he reiterated several statements that he included in the search warrant
based on his training and experience. He stated that prohibited possessors tend to retain
their firearms for an extended period. (Id. at 20:3-5; Ex. 1, Affidavit ¶ 9.) Agent Manoogian
testified that, in his sixteen years of service, he has seen prohibited possessors keep
firearms in vehicles registered to other people, sometimes in the names of friends and
family. (Tr. at 21:1-3; Ex. 1, Affidavit ¶¶ 11, 12.) In his experience, a straw purchaser is
someone who acquires firearms for or on behalf of another person. (Tr. at 21:18-21; Ex. 1,
Affidavit ¶ 8.) Agent Manoogian stated that prohibited possessors usually communicate
with straw purchasers via cell phone (Tr. at 22:11-14; Ex. 1, Affidavit ¶ 10).
On cross-examination, Agent Manoogian testified that he did not witness Defendant
engaged in a continuing pattern of illegal firearms activity. (Tr. at 49:4-20). Also, Agent
Manoogian spent time after April 19, 2023, trying to locate the owner of the suspect
4 “Tr.” refers to the official suppression hearing transcript. (See Doc. 66.)
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vehicle. (Id. at 48:2-5.) Agent Manoogian’s search warrant application was admitted into
evidence without objection after his direct examination. (Id. at 40:6-11; Doc. 61.)
PROCEDURAL HISTORY
On January 29, 2025, Defendant Roy Lee Cherry Jr. was indicted by a grand jury
on two felony counts of aiding and abetting in making false statements in connection with
the acquisition of firearms, in violation of 18 U.S.C. §§ 2, 922(a)(6), 924(a)(2); one felony
count of possession of a firearm and ammunition by a prohibited possessor, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(8); and one felony count of possession with intent to
distribute fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Doc. 1.) On
January 29, 2026, Defendant filed a Motion to Suppress (Doc. 53), to which the
government filed a response (Doc. 57). On March 25, 2026, the Court held an evidentiary
hearing and heard oral argument on the motion. (Doc. 59.) On April 2, 2026, Defendant
filed a Supplemental Briefing to Defendant’s Motion to Suppress (Doc. 64); and, on
April 3, 2026, the government filed a Supplemental Response to Defendant’s Motion to
Suppress (Doc. 65). On April 6, 2026, an official suppression hearing transcript was filed
on the case docket. (Doc. 66.)
LEGAL STANDARD
The Fourth Amendment requires that search warrants be supported by probable
cause to be valid. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006). In
determining whether probable cause exists, “[t]he task of the issuing magistrate is simply
to make a practical, common-sense decision whether, given all the circumstances set forth
in the affidavit … there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). A fair probability
does not amount to “certainty or even a preponderance of the evidence,” and a reviewing
court must not “flyspeck” the warrant affidavit through de novo review. Gourde, 440 F.3d
at 1069. The duty of the reviewing court is simply to “ensure that the magistrate had a
substantial basis for concluding that probable cause existed.” Gates, 462 U.S. at 238-39
(cleaned up). A magistrate judge’s probable cause determination is accorded “great
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deference,” id. at 236, and suppression is an appropriate remedy only “when a warrant is
based on an affidavit so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable,” United States v. Grant, 682 F.3d 827, 836 (9th Cir.
2012) (internal quotation marks and citation omitted). “The burden is on a defendant who
seeks to suppress evidence obtained under a regularly issued search warrant to show the
want of probable cause.” Chin Kay v. United States, 311 F.2d 317, 321 (9th Cir. 1962).
DISCUSSION
Defendant argues that the search warrant was invalid because the information upon
which the Government relied to establish probable cause was stale at the time of the warrant
application. (Doc. 53 at 5-9.) The Court disagrees.
“The passage of time is not necessarily a controlling factor in determining the
existence of probable cause.” United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983).
A search warrant is not stale where “there is sufficient basis to believe, based on a
continuing pattern or other good reasons, that the items to be seized are still on the
premises.” United States v. Gann, 732 F.2d 714, 722 (9th Cir. 1984). “Staleness must be
evaluated in light of the particular facts of the case and the nature of the criminal activity
and property sought.” United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991). “One
may properly infer that equipment acquired to accomplish the crime and records of the
criminal activity will be kept for some period of time.” Id.
A. 	Probable Cause Established
The information contained in Agent Manoogian’s affidavit is sufficient to establish
a fair probability that contraband would be found in the BMW at the time the warrant was
issued. The affidavit established that ATF agents conducted an ongoing investigation that
did not result in sufficient information to support a warrant application until late April
2023, and Agent Manoogian filed an application approximately five weeks later. (Tr. at
48; Ex. 1.) While the application relied on information that Defendant placed a firearm in
the BMW on March 21, 2023 (Ex. 1, Affidavit ¶¶ 27, 31), when viewed within the totality
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of the circumstances, the affidavit is more than sufficient to establish a fair probability that
a firearm would be found in the car in early June 2023.
The affidavit explains that ATF agents discovered two suspected firearm buyers at
a local gun shop (id. ¶¶ 14-15, 19); one of the suspects admitted she purchased firearms for
a man named Roy, who went by the alias “Memphis” (id. ¶ 26); Memphis accompanied
the suspect on one of the days she purchased a gun for him (id. ¶ 27); the gun shop owner
verified the suspect’s story (id. ¶ 28); the owner sent a photograph of video surveillance
footage depicting Memphis’s visit to the gun store (id. ¶ 31); the photograph included a
clear image of Memphis’s car (id. ¶¶ 31-32); phone records from the suspect’s mobile
phone indicated frequent contact with a 615 area code the day of the surveillance footage
(id. ¶¶ 32-33); it was discovered that Roy Cherry was the owner of the phone number with
the 615 area code and a white 2016 BMW with Arizona license plates was registered to his
mother (id. ¶¶ 38, 41); his mother’s BMW closely resembled the one depicted in
surveillance footage (id. ¶¶ 31, 47); and the sedan, including license plate number, was
listed in the search warrant affidavit and application (id. ¶ 41; Ex. 1, Attach. A).
Agent Manoogian’s affidavit also includes statements concerning his training and
experience as a seasoned ATF field agent (Ex. 1, Affidavit ¶¶ 1-4, 7-12); his experience
with prohibited possessors (id. ¶ 3); his professional opinion that prohibited possessors use
straw purchasers to acquire firearms on their behalf (id. ¶ 8); and his opinion that prohibited
possessors tend to retain their firearms for long periods of time (id. ¶ 9). 5 Additionally,
Agent Manoogian’s affidavit contains information from which a reasonable inference can
be drawn that the car would contain one or more firearms, as the affidavit indicates both
suspect straw buyers had extensive contact with Defendant at his mobile number. (Id.
¶¶ 33-36, 46.) This information, when viewed holistically, is more than sufficient to
establish a fair probability that the BMW contained a firearm in June 2023.
5 A magistrate judge may depend on an ATF agent’s professional experience and
perspective in a probable cause determination. See United States v. Parks, 285 F.3d 1133,
1142 (9th Cir. 2002) (cleaned up) (“In making its determination, the court issuing the
warrant is entitled to rely on the training and experience of police officers.”).
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B. 	Counterarguments Unavailing
Defendant’s arguments in opposition to the probable cause determination are
unavailing. Defendant asserts that the 73-day gap between March 21, 2023, when he was
seen placing a gun in his car, and the June 2, 2023, search warrant application was too long
for the information in the affidavit to be actionable. (Doc. 53 at 5.) He provides analogies
to the timeliness inquiry in United States v. Grant, 682 F.3d 827 (9th Cir. 2012), and urges
the Court to arrive at the same conclusion. (Doc. 53 at 6.) Defendant then insinuates it is
the Government’s burden to demonstrate that the information in the affidavit “details a
pattern of similar conduct” to be valid and that the Government fails to do so. (Id. at 7.)
Defendant next asserts that affidavit information is less likely to become stale if the
evidence at issue cannot be disposed of easily (id.); and finally argues that a good faith
exception to the exclusionary rule should not apply if there was insufficient probable cause
to issue the warrant in question (id. at 9). These arguments fail for several reasons.
First, Defendant’s staleness argument has little impact as to whether, given all the
circumstances set forth in the affidavit, there was a fair probability that a firearm would be
found in the car. The argument is myopic in that it ignores the “great deference” a
reviewing court accords to a magistrate’s probable cause determination and focuses only
on a limited time lapse between the warrant application date and the alleged date of
contraband possession. Both the Supreme Court and Ninth Circuit have counseled against
this approach. See Gates, 462 U.S. at 236 (cleaned up) (“[C]ourts should not invalidate
warrants by interpreting affidavits in a hypertechnical, rather than a commonsense,
manner”); Foster, 711 F.2d at 878 (“The passage of time is not necessarily a controlling
factor in determining the existence of probable cause.”).
Second, the facts presented in United States v. Grant are inapposite to the case at
hand, which requires its own analysis. In Grant, the Ninth Circuit ruled that an August
2009 search warrant was unsupported by probable cause where the affidavit failed to
establish a “fair probability” that the gun from a January 2009 homicide would be found in
the defendant’s home nearly nine months after the murder. 682 F.3d at 835. The court
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formed its conclusion based on a set of attenuated circumstances tying the defendant to the
murder weapon, see id. at 828-32, and observed that the affidavit provided “no evidence
suggesting that [the defendant] was involved” in the homicide, id. at 832. Notably, the
defendant’s connection to the alleged perpetrator(s) was based on a string of inferences too
long to summarize here. See id. at 829-32. There are no such circumstances in the case at
hand. Defendant was implicated directly by a suspect straw buyer who relayed accurate
information about the circumstances surrounding his alleged illegal firearm possession, the
information was corroborated and verified, and a search warrant was issued.
Third, assuming arguendo that the Ninth Circuit’s “test for judging the timeliness
of a search warrant is whether there is sufficient basis to believe, based upon a continuing
pattern of conduct or other good reasons, that the items to be seized are still on the
premises,” United States v. Collins, 559 F.2d 561, 564 (9th Cir. 1977) (citing Sgro v. United
States, 287 U.S. 206, 207 (1932)), is controlling, there are “other good reasons” to believe
a gun would be found in the vehicle in June 2023. Those good reasons form the basis of
Agent Manoogian’s affidavit and include the fact that Defendant was contacted by two
separate straw purchasers in the short time span of the ATF’s investigation. That fact,
viewed in a totality of the circumstances, provides a sufficient basis to believe that one or
more firearms would be in the car two months after he was seen possessing a firearm. See
United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (instructing that the magistrate
judge could authorize a search so long as there were “good reasons” to believe 19
pornographic images were still in the defendant’s computer); cf. United States v. Angulo-
Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (“Direct evidence that contraband or evidence
is at a particular location is not essential to establish probable cause to search the
location.”).
Fourth, even if the search warrant was not supported by probable cause, the good
faith exception to the exclusionary rule would apply because agents relied on the warrant
in an objectively reasonable manner to search the BMW and the affidavit established “at
least a colorable argument for probable cause for the exception to apply.” United States v.
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Crews, 502 F.3d 1130, 1136 (9th Cir. 2007) (cleaned up). Because there is a colorable
argument that the search of the car was supported by probable cause, the agents’ reliance
on the search warrant was objectively reasonable.
Defendant fails to carry his burden of demonstrating the absence of probable cause
to issue the search warrant, and his motion to suppress should be denied.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Judge,
after her independent review, deny Defendant’s Motion to Suppress Evidence (Doc. 53).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file
written 	objections 	within 	14 	days 	of 	being 	served 	a 	copy 	of 	this 	Report 	and
Recommendation. A party may respond to the other party’s objections within 14 days.
LRCiv 7.2(c). No reply shall be filed unless leave is granted by the District Judge. If
objections are not timely filed, they may be deemed waived.
Dated this 26th day of May, 2026.
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