Byron double-homicide: Defense questions police tactics to obtain search warrant

OREGON – Based on information included in a deputy’s sworn affidavit, the evidence against Duane C. Meyer, accused of killing his ex-wife and their 3-year-old son, seems to appear pretty solid.

Some – or all – of that evidence, which is coming to light in public court documents, however, could evaporate if the defense successfully argues that investigators lied to get it.

Defense attorney Christopher DeRango filed a motion Monday in Ogle County Court seeking a Franks hearing in which a judge would decide whether a law enforcement officer knowingly, or with reckless disregard for the truth, used false information to obtain a search warrant.

Meyer, 39, is in Ogle County jail on $10 million bond, charged with four counts of first-degree murder, two counts of aggravated arson, and one count of concealment of a homicidal death in connection with the Oct. 9, 2016, house fire in which Maggie Meyer, 31, was found dead and their son, Amos Meyer, died.

Maggie’s body was found on a couch on the first floor, while Amos, whom Duane Meyer pulled from the burning home and tried to resuscitate on the front lawn, was pronounced dead a short time later at a Rockford hospital.

At the heart of the issue is the five-page affidavit from Ogle County Deputy Chad Gallick on Oct. 28, 2016, to Ogle County Judge Robert Hanson, to support investigators’ assertion that they had probable cause to search Meyer’s phone.

Hanson OK’d a search warrant based on the affidavit.

According to the affidavit:

Maggie Meyer’s body was found around 7 a.m. the morning of Oct. 19, 2016, lying on the couch in her burning home at 2020 Silverthorn Drive in Byron.

A state fire marshal’s dog indicated accelerant in the living room, the kitchen and both bedrooms.

Duane Meyer said he arrived at the house around 6:30 a.m. to pick up Amos, saw the smoke, tried to find Amos and Maggie but couldn’t get through the thick smoke and went back outside.

He said he entered the house a second time and tried to get up the stairs, but again was turned back by smoke.

Meyer called 911, then went back in again, this time with a T-shirt around his face, retrieved Amos from his upstairs bedroom and brought him outside. The boy later died at a Rockford hospital.

An Oct. 20 autopsy found no soot in Maggie’s lungs or windpipe — she was dead before the fire began, forensic pathologist Dr. Mark Peters said.

Her death was not the result of natural causes, he said.

In a second autopsy done five days later, Dr. Hilary McElligott also found discoloration to the skin around Maggie’s neck, and bruises on her back.

Because of the court proceedings, the cause of her death has not been released.

According to a witness, a maroon vehicle, which she said was an SUV, was parked behind Maggie’s house the night before the fire. Duane Meyer arrived that morning in a 1997 maroon Ford F150 pickup truck. The witness later was shown a photo of Meyer’s truck and identified it as the vehicle she saw.

Blood was found on a paver in a brick walkway and on a large rock in the backyard, near where the vehicle was parked.

A bloody “round, ball-type” earring was found inside the truck, on the driver’s side floorboard, between the door and the seat.

The blood on the paver and the earring was Maggie’s, DNA tests revealed.

The blood on the rock came from a woman and couldn’t be ruled out as Maggie’s.

Another “round, ball-type” earring was found in the fire rubble in the basement, “directly below where the fire started” in the living room.

The data on Meyer’s phone — which was obtained from Verizon two days after the fire in an exigent circumstances request, without a normal warrant — showed that it was hitting off the cell tower on Barker Road in Byron from 5 p.m. to about 10:30 p.m. on Oct. 18.

After that, it was sending a signal to the cell tower on East Hales Corner Road in Stillman Valley.

At 11 a.m. the next day, on Oct. 19, a detective spoke to Meyer at his parents’ house on East Hales Corner Road in Byron. Meyer told the detective that he was at his family’s farm in Chana until 11 a.m. on Oct. 18, then went to his home in Stillman Valley. He said he left around 5 p.m. to go bow-hunting on the farm.

He was in Chana until about 9 p.m., then went back to his Stillman Valley home, were he stayed until about 6 a.m. the next morning, when he left to pick up Amos.

Chana is outside the Barker Road tower coverage area.

At the request of the state fire marshal investigator, the detective also told Meyer he needed his clothing; Meyer said it was in the washing machine at his Stillman Valley home.

Defense’s court motion

“The affiant for the warrant (Gallick) materially misrepresented the facts in three critical instances within his affidavit to the issuing judge,” DeRango said in his motion seeking a Franks hearing.

One: Despite the implication drawn by the wording in the affidavit, there’s no indication the two ball earrings are a pair, or that the earring found in the basement, which was damaged by the fire, even was a ball-type earring,” according to the motion.

“The item ... purported to be a round ball-type earring could much more accurately be described as a blob of unidentified, possibly metallic material, embedded in a larger blob of unidentified material, possibly concrete. The item possesses no visible characteristics of a round ball-type earring ... it has no post, backing, mounting or marking of any kind.”

The affidavit does not mention that an “indisputable earring” found adjacent to the couch “was not in any respect similar” to the one found in the truck, the motion says.

By trying to make it look like the earrings found in the truck and in the fire rubble were obviously similar, “the affidavit was deliberately false and misleading,” it says.

Two: The motion also argues that in his notes regarding their Oct. 26 interview, Ogle County Sheriff’s Lt. Brian Ketter wrote that the witness said she saw an SUV parked near the rear of the Silverthorn home the night before the fire, that she saw only the front of the vehicle, and that she identified it as Meyer’s pickup after he showed her a photo of the truck.

Given the direction her vehicle was traveling, however, she would have had an unobstructed view, in daylight, of the vehicle, and the affidavit fails to mention that her husband, who was driving, described the vehicle as a red sedan, DeRango said in his motion.

The affiant “was intentionally misleading the magistrate as to the reliability of [the witness’] ability to later identify the vehicle in question as belonging to the defendant, thereby attempting to place him at the scene prior to the discovery of the fire,” the motion says.

Three: The defense also argues that the distance from Chana to the Barker Road cell tower is less than 11 miles, “and there is no credible authority to support the proposition that 11 miles is outside the range of a properly functioning cellphone.”

“By including the false assertion that the defendant’s claimed location was impossible because it was ‘outside the tower coverage area’ for the tower which they allege his cellphone was ‘hitting off of,’ the affiant intentionally mislead the issuing magistrate by falsely swearing that the defendant must have lied about his whereabouts at and around the time leading up to the fire.”

State’s Attorney Mike Rock, who has until Dec. 3 to respond to DeRango’s motion for a Franks hearing, declined to comment Wednesday ahead of its filing.

If Ogle County Court Judge Ben Roe agrees that investigators intentionally mislead Hanson to obtain the search warrant, he could reject some or all of its results.

The motion was filed Monday during a hearing on whether the cellphone information used in the affidavit was itself unlawfully obtained.

DeRango is calling into question the method Illinois State Police Special Agent Nate Macklin used to obtain Meyer’s cellphone records: Macklin submitted his request directly to Verizon — via an “emergency situation disclosure” form — on Oct. 20, without obtaining a warrant signed by a judge.

Under federal law, Verizon, or any other cellphone carrier, is authorized to make its own decision whether exigent circumstances exist and phone records can be released sans warrant.

The form asks:

“Does this request potentially involve the danger of death or serious injury to a person, necessitating the immediate release of information relating to that emergency?”

It is only under those specific circumstances that the law allows those records to be released.

Macklin marked an X in the “yes” box. He requested subscriber information, location information, incoming and outgoing calls and text messages, including times, dates, and the associated phone numbers, and the phone’s internet activity.

That X was not accurate DeRango said Monday. There was no immediate threat of death or physical harm to anyone, DeRango said. Maggie and Amos already were dead, and there was nothing to indicate anyone else was in danger, he argued.

“Law enforcement used [the emergency disclosure] as an end-run to illegally access the defendant’s cellphone so that they could use the information gained in an effort to later meet the normal warrant requirements,” DeRango said.

Prosecutors stand behind Macklin’s use of the emergency situation disclosure form, citing the legal authority Verizon has to release records if it decides an emergency exists, and case law it says supports Macklin going directly to the carrier.

At the time Macklin’s request was made, exigent circumstances did exist, the prosecution said.

“It would be logical for the police to fear that if the defendant were the suspect, that people could also be in danger, such as his own family, like Maggie Meyer’s family, Maggie Meyer’s boyfriend ... and even the defendant’s girlfriend ...” Assistant State’s Attorney Matthew Leisten said Monday.

“It would also be logical for the police to believe that if the defendant were not the perpetrator, then other citizens would be at risk and therefore it would be imperative to determine if the defendant was a suspect.”

In addition, “Detective Gallick had a good-faith belief that the warrant he obtained was valid because his search warrant relied on the exigent circumstances records that he reasonably believed were lawfully obtained by Agent Macklin.”

Rango has filed a motion to quash Gallick’s search warrant and supress any evidence obtained as a result. A hearing on the motion to suppress depends on Roe’s ruling on whether the Verizon records were lawfully obtained.

That ruling is expected Dec. 6.