Defendant Mario A. Taylor seeks to revoke the magistrate judge's July 18, 2017 order directing that Taylor remain in custody pending trial. Dkt. 57. Taylor was arrested during an eviction conducted at 2547 Elvans Road SE # 102, Washington, D.C., on June 1, 2017, which resulted in the seizure of two handguns, an AR-15 rifle, ammunition for all three weapons, and two vials that the government alleges contain Phencyclidine ("PCP"). Dkt. 59 at 2-4. He was charged by indictment with Unlawful Possession with Intent to Distribute a Mixture and Substance Containing a Detectable Amount of PCP, in violation of
In light of several developments since his detention hearing, Taylor now moves to revoke that pretrial detention order. Dkt. 57. The Court finds that Taylor has rebutted the statutory presumption in favor of detention triggered by the charges in this case and that the government has failed to show by clear and convincing evidence that no set of conditions exists that would reasonably assure the safety of the community. Reaching that result requires that the Court resolve two questions of first impression in this Circuit regarding the meaning of the Bail Reform Act of 1984,
Applying the factors set forth in the Bail Reform Act and these legal conclusions, the Court will revoke the order of the magistrate judge and direct that Taylor be *60released subject to the conditions set out below.
I. BACKGROUND
On March 31, 2017, the Superior Court of the District of Columbia issued a writ of restitution to evict Taylor from his residence at 2547 Elvans Road SE # 102, Washington, D.C. Dkt. 14-1 at 3. The writ was executed on June 1, 2017. As required in the District of Columbia, the United States Marshals Service effected the eviction, with the assistance of an eviction team retained by the property owner. At the time the Deputy Marshals arrived at the residence, it was occupied by three men (including Taylor), one woman, and one infant. The Deputy Marshals directed all of the occupants to leave the apartment, but the adults were subsequently allowed briefly to return to retrieve valuables, such as cell phones and wallets.
After approximately forty-five minutes, one of the Deputy Marshals discovered two loaded rifle magazines (for an AR-15 rifle) under a table in the dining area. Dkt. 18 (64:4-9). Although the magazines were left on the floor, they were initially obscured by clothing and other "debris." Dkt. 48 (22:10-18). Very shortly after the Deputy Marshal discovered the magazines, the eviction crew discovered two loaded, semi-automatic handguns, ammunition, and two vials in shoeboxes in one of the bedrooms. At least one of the vials contained a "brownish[,] yellowish" liquid.
After officers from the GRU arrived, the officers inspected the items discovered in the course of the eviction. Of particular relevance here, Officer Casey Logan examined and smelled the vials and concluded that they contained PCP. He also examined the rifle magazines, handguns, and ammunition. While the GRU remained present, moreover, a member of the eviction crew discovered a soft bag in a closet located just off of the communal living area, which he brought to Officer Logan's attention. Officer Logan entered the closet, examined the bag, felt what seemed to be a rifle, and opened the bag. Inside, he discovered an AR-15, a type of semi-automatic rifle. According to Officer Logan, he asked Taylor-who remained handcuffed-"about the illegal items recovered from his home," and Taylor responded "that everything recovered from the residence belong[ed] to him." Dkt. 61 at 2 (MPD Arrest Form (June 1, 2017)); see also Dkt. 49 (25:9-23) (quoting grand jury testimony). Taylor's counsel denies that he made this statement, but the defense has yet to offer any evidence or to make a proffer in support of that contention. According to the government, the liquid contained in the vials later tested positive for PCP at a Drug Enforcement Agency ("DEA") laboratory located in Northern Virginia.
Taylor was indicted on June 29, 2017, and arraigned on July 11, 2017. After a detention hearing, the magistrate judge found "by clear and convincing evidence that no condition or combination of conditions exist that would reasonably assure the safety of any other person or the community if [Taylor] were released," and he accordingly granted the government's motion for pretrial detention. Dkt. 5 at 9.
*61Taylor did not, at that time, challenge that order under
First , at the initial detention hearing, the government relied extensively on Officer's Logan's assertion that Taylor admitted that the guns and drugs belonged to him. Dkt. 3 at 5; Dkt. 5 at 7. The government has now conceded, however, that the statements made by Taylor in response to Officer Logan's questions must be suppressed at least for purposes of trial because he was in custody and not advised of his Miranda rights. Dkt. 18 (11:1-12:14); Minute Entry (Dec. 8, 2017).
Second , Taylor also moved to suppress the physical evidence found in the apartment-that is, the guns, magazines, ammunition, and vials of "brownish[,] yellowish" liquid. Although the Court denied that motion, additional evidence arguably relevant to the present motion came to light in the course of the suppression hearing. For example, although the magistrate judge concluded, based on Officer Logan's grand jury testimony, that the handguns, ammunition, and purported PCP were recovered from the "main bedroom" of a two-bedroom apartment, Dkt. 5 at 2, testimony of multiple law enforcement officers established that the apartment had three bedrooms, and the government has not made any further suggestion that a one of the bedrooms was the "main bedroom." The Deputy Marshal supervising the eviction crew, moreover, testified that when Taylor was allowed to retrieve personal items from the apartment, he did not enter the bedroom where the shoeboxes containing contraband were discovered. Dkt. 48 (12:15-22). Instead, he entered a bedroom on the other side of the hallway and "grabbed ... [a] cellphone, cellphone charger, [and] ... a wallet."
Third , after the jury was selected, but before it was sworn, Taylor's counsel notified the Court of potentially exculpatory information regarding misconduct by employees of the DEA lab where the substance that the government contends is a mixture of PCP and a precursor chemical was tested. Dkt. 57 at 5-6. According to Taylor's counsel, two chemists have been "charged with criminal offenses including embezzlement and possession of controlled substances."
That investigation has, as of yet, been inconclusive. According to the government, one of the DEA chemists identified by Taylor's counsel was arrested on August 30, 2017, and charged under Virginia law with two counts of felony possession of oxycodone and two counts of embezzlement for purportedly obtaining oxycodone from the DEA lab's "reference materials" without authorization. Dkt. 62 at 1. She pleaded guilty to misdemeanor embezzlement on November 27, 2017.
The Court held a hearing on the motion to revoke the magistrate judge's detention order on December 21, 2017, and took the motion under advisement. Trial is currently scheduled to commence on January 29, 2018.
II. LEGAL STANDARD
Under the Bail Reform Act of 1984,
"That default is modified, however, for certain[ ] particularly dangerous defendants."
Once triggered, "the presumption operate[s] at a minimum to impose a burden of production on the defendant to offer some credible evidence contrary to the statutory presumption." United States v. Alatishe ,
As then-Judge Breyer explained in an opinion that the D.C. Circuit has described as "scholarly" and "extremely compelling it its rationale," Alatishe ,
The Bail Reform Act also specifies the factors that the judicial officer must "take into account" in determining whether any conditions of release "will reasonably assure ... the safety of any other person and the community."
Taylor has moved to revoke the magistrate judge's detention order under 18 U.S.C. 3145(b), which states that when "a person is ordered detained by a magistrate judge, ... the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." 18 U.S.C. 3145(b) ; Dkt. 57. Although the D.C. Circuit has not decided the issue, those courts considering the question have held that a magistrate judge's detention order is subject to de novo review by the district court. See United States v. Hunt ,
*64III. ANALYSIS
A. Probable Cause and Presumption
As an initial matter, the Court agrees with the magistrate judge's conclusion that the presumption that no pretrial release conditions will reasonably assure the safety of the community was triggered by Taylor's indictment. Dkt. 5 at 4. Count One of the indictment charges Taylor with unlawful possession with intent to distribute PCP, which carries a maximum sentence of twenty years, and Count Three charges him with using, carrying, or possessing a firearm during a drug trafficking offense. Dkt. 1. Both of these charges fall within the list of crimes that trigger the presumption,
Unlike the magistrate judge, however, the Court finds that Taylor has now come forward with sufficient evidence to meet his burden of production, overcoming but not "bursting" the presumption. He has offered evidence that, if released on high intensity supervision, he could live with his sister and that his previous employer would offer him work. He stresses that he has not previously been convicted of a crime of violence. And, most notably, he points to evidence offered during the suppression hearing that calls into question the connection between him and much, if not all, of the contraband at issue and that establishes a plausible link between the contraband and a third party. Although the government points to Officer Logan's report indicating that Taylor admitted that the contraband was his, see Dkt. 61 at 2-3 (MPD Arrest Form (June 1, 2017)), the relevant question-at least for purposes of the presumption-is not who is correct, but simply whether Taylor has met his burden of production. The Court concludes that he has met that modest burden and that, as a result, "the Court must ... consider all of the factors set forth in section 3142(g)" to determine whether detention is warranted. Hunt ,
B. Section 3142(g) Factors
1. Nature and Circumstances of the Offense Charged
The first factor requires the Court to consider "the nature and circumstances of the offense charged," in general, and, in specific, whether "the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device."
2. Weight of the Evidence
Taylor's principal argument is that the weight of the evidence has shifted since the magistrate judge found that pretrial detention was warranted. The magistrate judge's detention memorandum noted, for *65example, that Taylor told Officer Logan "that he had resided at the apartment since 1994, [that he] had taken over the lease in 2013," and "that everything recovered from the apartment was his." Dkt. 5 at 2. Taylor's counsel disputes that he made the latter admission. See, e.g. , Dkt. 49 (22:17-39:24). There is no dispute, however, that the statement, if made, occurred while Taylor was in custody and before he received his Miranda warnings, and the government has now conceded that the statement must therefore be suppressed for purposes of trial. This has removed one building block of the government's case. At the same time, moreover, Taylor contends that the evidence presented at a hearing regarding the suppression of the recovered contraband affirmatively undercuts the government's contention that the guns, ammunition, and drugs were his. According to the defense, that evidence shows that others-including Veandre Purvis-lived in the apartment; the two handguns, much of the ammunition, and the two vials of "brownish[,] yellowish" liquid were found in the bedroom on the right side of the hallway; the name "Veandre" was written on the wall of that bedroom; when allowed to retrieve certain personal items from the apartment, Taylor went to the bedroom on the other side of the hallway while another adult (perhaps Purvis) went to the bedroom on the right side; and Purvis was overheard asking Taylor why he "had not told him that he was being evicted and was behind on his rent," Dkt. 44-1 at 1. Taylor contends that these developments substantially weaken the government's case and that, as a result, the second factor now weighs in favor of release.
When asked at oral argument how it intended to establish that Taylor possessed the guns, ammunition, and drugs, the government responded that it will rely on a theory of "joint, constructive possession," Motion Hearing Tr. (Rough at 32:2-33:16) (Dec. 21, 2017); that Taylor was the lessee, the "head of the household," and was responsible for all of the items found during the eviction; that the magazines for the AR-15 were found underneath the table in the common dining area; and that those magazines fit into the AR-15 found in the common closet. The government, in addition, contends that, for purposes of determining whether pretrial detention is warranted, the Court should consider Taylor's alleged, un-Mirandized admission that all of the seized contraband belonged to him.
The parties' respective positions raise a host of issues. The first question is how the second Bail Reform Act factor should be applied when evaluating the danger that Taylor's release would pose to the community. At least one court has held that the "weight of the evidence" factor "goes to the weight of the evidence of dangerousness, not the weight of the evidence of the defendant's guilt." Stone ,
*66In the Court's view, the correct approach lies somewhere between these poles. The Court is unconvinced that the "weight of the evidence" factor focuses on the defendant's danger to the community (or risk of flight) to the exclusion of any consideration of the strength of the government's case. The relevant statutory language does not focus on the evidence of danger to the community or the evidence of risk of flight; rather, it requires that the judicial officer consider "the weight of the evidence against the person ."
At the same time, however, the Court recognizes that the Bail Reform Act does not purport to-nor could it, consistent with due process-authorize pretrial detention based simply on a preliminary assessment of the defendant's guilt. In sustaining the constitutionality of the Bail Reform Act, the Supreme Court emphasized that it "narrowly focuses on a particularly acute problem in which the Government interests are overwhelming"-as applied here, "the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person." United States v. Salerno ,
Determining how this factor applies to suppressed evidence-which might support the conclusion that the defendant committed the alleged crime but not the conclusion that the government is likely to prevail at trial-is less clear. The "weight of the evidence" factor dates back to the statutory predecessor to the Bail Reform Act of 1984, which permitted pretrial detention where "conditions of release [would] not reasonably assure appearance," Bail Reform Act of 1966, Pub. L. No. 89-465,
At the pretrial detention hearing, which can normally be expected to occur immediately or shortly after arrest, the judicial officer would not be expected to make formal rulings on the legality of such matters as searches, seizures, and eyewitness identification since at that time in the proceedings, such rulings would be premature. Should, however, a defendant succeed in suppressing substantial evidence by appropriate motion following a hearing, this might well provide a basis for the court to reconsider its earlier ruling . This procedure, it should be observed, is no different from that which exists under the Bail Reform Act.
H.R. Rep. No. 91-907, at 184-85 (1970) (emphasis added). The D.C. Court of Appeals relied on this Report language in rejecting a constitutional challenge to the updated D.C. pretrial detention law. See United States v. Edwards ,
This history supports the conclusion that, notwithstanding the Bail Reform Act's admonition that "[t]he rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at [a detention] hearing,"
One might reasonably respond by noting that the link between the strength of the government's case and the risk of flight is far easier to discern than the link between what the government may be able to show at trial and the danger to community. Where the government's case has been substantially weakened by a suppression order, the defendant is less likely to flee. By contrast, the suppression of the evidence says little about whether the defendant, in fact, poses a danger to the community. None of the materials discussed above, however, draw this distinction. To the contrary, the D.C. Court of Appeals' decision in Edwards dealt with pretrial detention aimed at protecting the safety of the community, see
The significance of the suppression of this statement is bolstered by evidence offered at the hearing on the suppression of the physical evidence, which casts some doubt on whether Taylor possessed the contraband found in the bedroom. As noted above, a motion to revoke a pretrial detention order is not the occasion to adjudicate a defendant's guilt or innocence, see United States v. Gebro ,
Although the nuances of the government's constructive possession theory have yet to be presented, there is no doubt that it will be required to prove beyond a reasonable doubt that Taylor "knew of, and was in a position to exercise dominion and control over, the contraband." United States v. Littlejohn ,
Recognizing that the government has yet to present its case, the evidence produced to date (excluding the suppressed admission) at least suggests that Taylor was not the sole occupant of the apartment and that the handguns, some of the ammunition, and the two vials of "brownish[,] yellowish" liquid were found in another occupant's bedroom. That same evidence also suggests that those items were not in plain view-they were found in shoeboxes kept in a closet. The AR-15 rifle and associated magazines, in contrast, were found in shared spaces; the magazines *69were found under a table in the dining area, and the rifle was found in a closet off of a common area. The rifle, however, was not in plain view, and the question whether the magazines were in plain view may be subject to dispute. When asked at the suppression hearing whether the magazines were "in plain view," one of the Deputy Marshal's present at the eviction testified: "In plain view. There was some debris and some clothes on the floor. Once they were moved, the clips were there on the floor." Dkt. 48 (22:15-18). Although the government might plausibly argue that "plain view" encompasses circumstances in which the contraband would be "readily visible" to an occupant in the course of everyday activity-like "opening the [kitchen] freezer or kitchen cabinet," United States v. Harris ,
The Court, accordingly, finds that the second factor weighs against continued pretrial detention.
3. History and Characteristics of the Defendant
The third factor requires the Court to consider (1) the defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (2) whether, at the time of the current offense or arrest, the defendant was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law.
Consideration of these factors does not weigh definitively in either direction. On the one hand, Taylor has been convicted of at least two serious felonies: possession of cocaine with intent to distribute, and possession of a firearm by a felon. Even more significantly, both convictions parallel the current charges, suggesting that Taylor was not previously deterred by his prior, lengthy sentences. But, on the other hand, Taylor's prior convictions are dated. His conviction for possession with intent to distribute occurred almost a quarter century ago, and his conviction for possession of a firearm by felon occurred well over a decade ago. Furthermore, the government has not presented evidence that the underlying conduct giving rise to those convictions involved violence. In the related context of determining when the presumption in favor of detention applies, the D.C. Circuit declined to treat felon-in-possession charges, standing alone, as crimes of violence. See United States v. Singleton ,
In sum, Taylor's criminal history involves the same type of conduct at issue in the present case, and that history involves both drug trafficking and the illegal possession of a firearm. This, then, at least raises the specter that he might, if released, commit just the type of offense that Congress concluded poses a unique danger *70to the community. See
The Court, accordingly, finds that the third factor does not tip decidedly in either direction.
4. Nature and Seriousness of the Danger to Any Person or the Community that Would Be Posed by the Defendant's Release
The final factor the Court must consider is the "nature and seriousness of the danger to ... the community that would be posed by [Taylor's] release."
Nor do Miranda v. Arizona ,
*71United States v. Graham-Wright ,
As the Fourth Circuit has explained, although "statements obtained in violation of Miranda are inadmissible in the government's case-in-chief," this rule does not inexorably apply in other contexts. Nichols ,
The same reasoning applies to use of otherwise voluntary, un-Mirandized statements in assessing the "nature and seriousness of the danger" to the community that would be posed by a defendant's pretrial release. The public interest in minimizing the danger to the community posed by a defendant under indictment for committing one of the limited offenses for which the Bail Reform Act permits pretrial detention is compelling. See Salerno ,
With that admission is mind, the Court concludes that the fourth factor weighs in favor of pretrial detention. Congress intended that the concern for community safety reflected in the Bail Reform Act "be given a broader construction than merely danger of harm involving physical violation," and, in particular, that it encompass "the risk that a defendant will continue to engage in drug trafficking." 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 766 (4th ed. 2013). In addition, although the mere fact that the defendant possessed a firearm does not constitute evidence of a danger to the community, possession of a firearm by a convicted felon who is allegedly engaged in illegal drug distribution is a different matter. Cf. Singleton ,
Accepting Officer Logan's version of events, the evidence suggests that Taylor *72was involved in the distribution of PCP, a particularly dangerous illegal drug; that he possessed three firearms, including an AR-15 semi-automatic rifle; and that he had scores of rounds of ammunition in his apartment. The evidence also suggests that Taylor knew that he was taking a substantial risk by possessing those firearms, but was undeterred by the fact that he had previously served thirty-seven month sentence for possession of a firearm by a felon. These facts, along with the (non-bursting) presumption that those charged with drug offenses carrying sentences of ten years or more or with the use of a gun in the commission of a drug offense pose a danger to the community,
The Court, accordingly, finds that the fourth factor weighs in favor of pretrial detention.
C. Weighing the Bail Reform Act Factors
As explained above, two of the four factors weigh in favor of continued detention, one factor weighs in favor of release, and third factor does not tip decidedly in either direction. Taylor's motion, accordingly, presents a close question. On balance, however, the Court concludes that the government has not met its burden of establishing by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community."
CONCLUSION
For the reasons explained above, Defendant's Motion to Revoke Order of Detention, Dkt. 57, is hereby GRANTED , subject to the conditions set forth in an order to issue following a hearing before Magistrate Judge Deborah A. Robinson on January 3, 2018, at 1:30 p.m. in Courtroom Four. Those conditions shall include entry into the High Intensity Supervision Program; confinement to his sister's home until further order of the Court, except for meetings with counsel, to attend court proceedings, to meet with Pretrial Services, and as otherwise provided by Pretrial Services; meeting with Pretrial Services no less than once per week; no contact with Veandre Purvis or any other potential witness in this case; no possession of firearms or ammunition; no possession or use of any illegal drug; regular drug testing as directed by Pretrial Services; and such further conditions that the magistrate *73judge conducting the hearing finds appropriate.
Taylor also argues that the potential Brady violation that occurred when the government failed to disclose the asserted misconduct at the DEA lab gives rise to an independent ground for revoking the detention order. Dkt. 57 at 7. The Court cannot conclude on the existing and undeveloped record, however, that a Brady violation occurred or what, if any, remedy would be appropriate. The Court, accordingly, will defer consideration of the Brady issue for a later date.