Free Complaint - District Court of Delaware - Delaware

Case 1:08-mj—OOOO6—UNA Document 1 Filed O1/08/2008 Page 1 of 4
AO 91 (Rev. 12/93) C1C:i.mj.nal Corrplainl; _
In United States District Court .
For the District 0fDe1a.wa1·e
UNITED STATES OF AMERICA .
Criminal Complaint y
V. CASE NUMBER: 08- U6 ·· M
Thomas J. Smith
Defendant
I, the undersigned complainant, being duly sworn, state the following is true and correct to the best of
my knowledge and belief. On or about January 8, 2008 inthe District of Delaware, Defendant
Thomas J. Smith did knowingly:
1) possess in and affecting interstate commerce, a firearm, after having been convicted of a felony crime
punishable by imprisonment for a term exceeding one year,
in violation of Title 18 United States Code, Section(s) 922(g)[1) and 924(a){2)·, and
2) possess Cocaine Base,
in violation of Title 21 United States Code, Section(s) 844la).
I further state that I am a(n) Special Agent, ATF and that this complaint is based
on the following facts: `
See attached Affidavit
Continued on the attached sheet and made a part hereof: Yes
M
l ..··' QM all 1
Patrick W. Fyock Special Agent, ATF
Sworn to before me and subscribed in my presence, I
l) l*"‘·’§¥ [QD `°E at Wilmington, DE
Date City and State -
Honorable Leonard P. Stark 1 ` Q (E!
United States Magistrate Judge sl/\*’ ’
Name & Title of Judicial Officer Signature of Judicial Officer

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AFFIDAVIT OF PATRICK FYOCK
1. Your affiant is Patrick Fyock. Your affiant has been a Special Agent for over five and a
half years with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). l
During that time, my duties have included the investigation of federal and state firearms 1
offenses. Prior to being hired by ATF, I was employed as a Police Officer for seven years V
with the Nationally Accredited New Castle County Police Department in Delaware. .
During the course of yoru affiant’s law enforcement career, your affiant has received law
enforcement training on the investigation of firearmsoffenses on numerous occasions, 1
including but not limited to the ATF Academy, New Castle County Police Academy,
Firearms identification classes, Firearms Nomenclature classes, and Firearms
identification classes at the Federal Law Enforcement Training Center. During the course
of your affiant’s law enforcement career, your affiant has participated in over 80 seizures _
of firearms and well over 120 investigations of firearms offenses, as well as numerous
conversations about the facts and circumstances of firearms offenses with the
investigating officers of those firearms offenses. Your affiant has also received training
on drug investigations and drug trafficking characteristics during my time as a New
Castle County Police Officer, including but not limited to a DEA 40 hour drug
investigator class. Your affrant has participated in approximately 6-S drug investigations
resulting in drug seizures and convictions since joining ATF. You affiant has contact with
DEA agents, state and local drug investigators on a regular basis and possesses a working i
` knowledge ofthe drug trends for this area.
2. Unless otherwise stated, the information in this affidavit is based upon your affiant’s
personal knowledge and conversations with Wilmington Police Officers. A
3. The seizure of all of the below listed evidence occurred on 01/08/08, in the City of i
Wilmington, State and District of Delaware, as stated to me by one or more Wilmington ‘
Police Officers with personal knowledge of the seizure of the below items. =
1
4. Your affiant reviewed the computer criminal history information for the Defendant
Thomas I. Smith from the Delaware Justice Information System (DEL] IS) and the E
National Crime lnfonnation Center (N CIC) and learned that the defendant has prior l
felony conviction for Possession With Intent to Distribute a Non-Narcotic Schedule I
Controlled Substance in the Superior Court of the State of Delaware, a felony crime
punishable by imprisomnent for a term exceeding one year. `
5. A Wilmington Police Officer with personal knowledge of the events stated to your affiant A
that he and his partner were on patrol in a high crime area, and were directed to this area l
as a response to recent criminal activity. The approximate time was 3:00 am. The officers 1
were in uniform and driving fully marked Wilmington Police Vehicle. Shortly after 3:00 1
am officers observed the subject walking on the sidewalk with his hands in his pockets.
Officers stated that trough training and experience they know this is a technique used to
1

Case 1 :08-mj—OOOO6—UNA Document 1 Filed O1/08/2008 Page 3 of 4
hold onto concealed weapons and or illegal narcotics through clothing. The officers ;
contacted this subject while sitting in the police vehicle. An officer asked the subject if he i
had identification and upon recieving a “no” answer an officer asked where the subject g
was going. The subject did not provide an address and stated he "was heading over to his
girls housc". As officers instructed the subject to place his hands on the fully marked
police vehicle in an attempt to further investigate this subjects identification, the subject
turned and began nm. Officers activated the vehicle’s emergency equipment and began to
pursue the fleeing subject. Officers did not lose sight of the fleeing subject. The subject i
attempted to scale a chain link fence, but was unable to do so. A uniformed officer exited ·
the vehicle and gave chase. Vlfhile the subject was fleeing he was rumring with his right
arm close to his body and grasping at an object in has waistband with his right hand. An
officer observed a dark object fall out of the subjects right pant leg and onto the E
sidewalk. The subject then dropped to the ground on the sidewalk approximately 5 yards _ I
from the object and was taken into custody. A Glock model 19 9mm serni—automatic i
handgun serial number AUFSZOUS, loaded with l2 Winchester 9mm rounds in the {
magazine was recovered from the location on the ground where the officer observed the
dark object fall from the suspects pant leg. }
6. While at police headquarters the subject stated he was in possession of crack cocaine. l
Inside the subject’s front left pants pocket officers located a clear zip-lock bag containing
2 small pink zip—lock baggies. Both baggies contained an off white color rock like a
substance that was field tested by a Wilmington Police Officer and provided a positive
result for cocaine. Due to the appearance of the substance, as well as the field test, the
Wilmington Police Officer knew from his experience and training that the substance was
crack cocaine. The total weight was approximately l gram.
7. From my training and experience, and prior discussion with an ATF Agent who is
expertly trained and experienced in determining the interstate nexus of firearms, your
affiant knows that the Glock model 19 9mm semi-automatic handgun serial number
AUFSZOUS, loaded with 12 Winchester 9mm rounds in the magazine is a firearm as
defined in 18 U.S.C., Chapter 44, Section 92l(a)(3) and was manufactured in a state other
than Delaware such that its possession in Delaware would have necessarily required that
the firearm had crossed state lines prior to its possession in Delaware and such that the
possession of that firearm in Delaware affected interstate commerce.

Case 1 :08-mj—OOOO6—UNA Document 1 Filed O1/08/2008 Page 4 of 4
Wherefore, based upon your affianfs training and experience, your affiant believes that there is
probable cause to believe that the defendant violated:(l) 18 U.S.C-. 922(g)( 1) and 924(a)(2), by
possessing in and affecting interstate commerce a firearm, after having previously been convicted _
of a felony crime punishable by imprisonment for a term exceeding one year, and (2) 21 U.S.C.
844(a), by Possessing a Controlled Substance, Cocaine Base, and respectfully requests that the
Court issue a Criminal Complaint chmginwse offenses.
V;/Q ... .,2%
Patrick Fyock
Special Agent, ATF
Sworn to and subscribed in my presence ·
thisi? day of So.»·0¤nQ 2008
Honorable Leonard P. Stark
United States Magistrate Judge A
District of Delaware
l
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