United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 13]
JAMES
S. GWIN, UNITED STATES DISTRICT JUDGE
In this
case, the United States charges Defendant Curtis E. Tucker,
Jr., with possession with intent to distribute
methamphetamine and being a felon in possession of a
firearm.[1] On April 24, 2017, Defendant Tucker filed
a motion to suppress evidence.[2] The Court held a suppression
hearing on May 4, 2017. For the reasons stated below, the
Court GRANTS Defendant's motion to suppress.
I.
Background
Defendant
Tucker argues that in March 2017, police executed two search
warrants that were not supported by probable cause and were
so lacking in probable cause that a reasonable officer could
not rely upon the warrants. Specifically, Tucker argues that
the affidavits submitted to support the search warrants gave
no evidence showing any nexus between the searched residences
and any drug activity.[3] Thus, Defendant Tucker claims that all
evidence seized from the searches is inadmissible.
Saxon
Avenue Affidavit
Respectively,
one affidavit supported each search warrant. The United
States and Defendant agree that this Court should examine
those affidavits and that other evidence is unimportant to
the motion to suppress.
On
March 8, 2017, Akron Police Detective M.V. Gilbride applied
for and obtained a search warrant for a house owned by
Defendant Tucker at 791 Saxon Avenue, Akron,
Ohio.[4] The supporting affidavit (“Saxon
Affidavit”) was based on surveillance of suspected drug
dealer Camiolo Rocha-Ayon, Jr. and upon limited surveillance
of Defendant Tucker.
The
Saxon Affidavit said that the “affidavit is submitted
for the limited purpose of securing a records and document
search warrant for the above-described
premises.”[5]
In
support of the application to search the Saxon house, the
Saxon Affidavit gave almost no discussion of suspicious
activities at the Saxon house. Instead, the Saxon Affidavit
described highly suspicious activity by drug dealer
Rocha-Ayon away from the Saxon house. The affidavit then
described one occasion when Rocha-Ayon came to the Saxon
house for limited time. Apart from Rocha-Ayon's one trip
to the Saxon house, the affidavit said nothing about the
Saxon location and little about Defendant.
The
Saxon Affidavit begins with a statement that from July 2016
to February 2017, electronic surveillance showed that
Rocha-Ayon's white lnfiniti drove to the Akron area seven
times.[6] The affidavit gave no specific information
regarding any of the trips. The Affidavit did not describe
any end locations for the Akron trips. The Affidavit does not
say Rocha-Ayon came to the Saxon Avenue location during those
trips.
Without
any specific support, the Saxon Affidavit alleges that
Rocha-Ayon typically drove a Chrysler but used the white
Infiniti for drug deals.[7] The Saxon Affidavit then gives
Detective Gilbride's opinion that drug traffickers often
avoid using their typical car when involved with drug
trafficking deals.[8]
The
Saxon Affidavit then describes a January 15, 2017, event. On
that day, Rocha-Ayon met with an unidentified male at a truck
stop near US-42 and I-270.[9] Surveillance footage showed the man
removed a bag from the trunk of Rocha-Ayon's vehicle and
walked away.[10]Affiant Gilbride testified that he
believed the January 15, 2017, incident was a drug
sale.[11] No arrests were made after the January
15 truck stop incident and the affidavit gave no follow-up
with regard to the January 15 incident.
The
Saxon Affidavit then does not give any additional information
until more than a month later. More than a month after the
January truck stop incident, on February 17, 2017, Rocha-Ayon
exchanged his Chrysler for the Infiniti.[12] He made the
exchange at his Canal Winchester home near Columbus. The
affidavit then describes Rocha-Ayon driving the Infiniti to
Cabela's Outdoor Store at the northern edge of Columbus
and describes him as buying a vacuum sealer and sealing
bags.[13]
From
the Cabela's store, the Affidavit says Rocha-Ayon then
traveled north to 791 Saxon Avenue, Akron,
Ohio.[14] DEA investigators followed. With the
Cabela's store opening at 9:00 AM, Rocha-Ayon presumably
arrived at Defendant Tucker's 791 Saxon Avenue, Akron
house sometime near 11:30 AM.[15]
The
affidavit then described that a white Chevrolet van
registered to Defendant Tucker arrived to the Saxon house at
11:38 AM; the van departed shortly thereafter, and the van
then returned to the house at 12:07 PM.[16] The Saxon
Affidavit says Rocha-Ayon left the Saxon house at 12:59 PM,
drove to an outlet mall, and then returned to Canal
Winchester in the Columbus area, where Rocha-Ayon switched
out the Infiniti for the Chrysler.[17]
The
Saxon Affidavit does not describe any specific conduct during
the time the white Infiniti and the Chevrolet van were
present at the Saxon Avenue location. The Affidavit does not
say that Defendant Tucker was the driver of the Chevrolet van
or that either Rocha-Ayon or the van driver went into the 791
Saxon Avenue house.[18]
The
Saxon Affidavit then describes Rocha-Ayon's arrest two
days later. On February 19, 2017, Rocha-Ayon drove the
Infiniti to a Grove City, Ohio Walmart parking lot, where
officers saw him place a tan duffel bag in his trunk before
leaving.[19] After Highway Patrol officers stopped
Rocha-Ayon for a moving violation, they searched his vehicle
and seized approximately eleven kilograms of cocaine from the
tan duffel bag, as well as a receipt for a vacuum sealer and
bulk plastic bags.[20] Grove City is roughly 135 miles from the
Saxon Avenue, Akron location.
The
Saxon Affidavit then says that officers executed a search
warrant at Rocha-Ayon's two Canal Winchester homes near
Columbus.[21] Officers discovered a vacuum sealer,
scales, wire transfer receipts, empty kilo-wrappers, eight
firearms, and approximately $223, 000 in cash.[22]
Detective
Gilbride prepared the Saxon Affidavit in support of a search
warrant for 791 Saxon Avenue. As discussed above, the
affidavit describes Rocha-Ayon's suspicious activity,
Rocha-Ayon's brief contact with the Saxon Avenue property
and a van owned by Defendant Tucker, and Rocha-Ayon's
arrest. The affidavit also mentioned that Akron Police
received an anonymous tip in October 2016 of suspected drug
dealing at 791 Saxon Avenue.[23] The affidavit also referenced
Defendant Tucker's 2000 conviction for possession of
crack-cocaine with intent to distribute.[24]
On
March 8, 2017, Akron Municipal Judge Jon Oldham signed the
search warrant. The next day, officers searched the Saxon
house and recovered a loaded 9mm handgun, a hydraulic press,
money, documents, and drug packaging materials.[25] Officers also
found Defendant Tucker's birth certificate, vehicle
registrations, and a Summit County Fiscal Office record
identifying Tucker as the owner of a property located at 2123
Penguin Avenue in Barberton, Ohio.[26]
Penguin
Avenue Affidavit
Barberton
City Detective Antenucci then applied for an additional
search warrant at 2123 Penguin Avenue, Akron,
Ohio.[27] The supporting affidavit (“Penguin
Affidavit”) included the information set forth in the
Saxon Affidavit and described the items seized during the
Saxon search.[28]
Additionally,
the Penguin Affidavit identified evidence linking Defendant
Tucker to the Penguin address. This evidence included (1) a
Saxon house utility bill that was forwarded to the Penguin
house, and (2) a call to the Summit County Sheriff about a
domestic dispute at the Penguin address in which Defendant
Tucker participated.[29]
Barberton
Municipal Judge Jill Lanzinger signed the Penguin Avenue
warrant on March 9, 2017, and officers executed it the same
day.[30] Officers recovered large amounts of
cash, methamphetamine, handguns, and various
documents.[31]
Procedural
History
On
April 24, 2017, Defendant Tucker filed a motion to suppress
all evidence seized at the Saxon and Penguin
houses.[32] Tucker argues that all evidence seized
from the properties is inadmissible because the underlying
affidavits, and therefore the search warrants, lack probable
cause.[33] Specifically, Defendant Tucker argues
that each affidavit failed to establish a nexus between the
searched residences and drug activity[34]
The
Government responds that sufficient evidence connects the
drug activity to Tucker's residences.[35] The
Government points to Rocha-Ayon's presence at the Saxon
house two days before Rocha-Ayon was arrested with a
substantial quantity of illegal drugs. The Government also
says Tucker had a previous drug conviction.[36] In addition,
the government argues that even if the affidavits fail to
establish probable cause, the officers still acted in good
faith by executing search warrants approved by neutral state
court judges.[37]
The
Court held a suppression hearing on May 4, 2017.
II.
Legal Standard
The
Fourth Amendment guarantees that “no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be
seized.”[38] Probable cause is a fair probability
that evidence of a crime will be found.
An
affidavit used to establish probable cause must provide the
issuing magistrate a substantial basis for determining the
existence of probable cause.[39] The circumstances detailed in
the affidavit should demonstrate a “nexus between the
place to be searched and the evidence
sought.”[40]
“When
making a probable cause determination, a court is limited to
the four corners of the affidavit.”[41] Accordingly,
an affidavit is “judged on the adequacy of what it does
contain, not on what it lacks, or on what a critic might say
should have been added.”[42]
Generally,
courts exclude evidence obtained in violation of the Fourth
Amendment.[43]However, if law enforcement officers
acted in good faith and reasonably relied on the warrant, the
evidence obtained is still admissible.[44]
In
Leon v. United States, the Supreme Court identified
four scenarios where an officer's reliance on the warrant
is not objectively reasonable: (1) when the
affidavit contains false information that the affiant either
knew or should have known was false; (2) when the issuing
magistrate abandons neutrality and serves as a rubber stamp
for police activities; (3) when the affidavit is bare-bones
and severely lacks in indicia of probable cause; and (4) when
the warrant is so “facially deficient” that it
cannot be presumed to be valid.[45]
Here,
Defendant Tucker argues that the affidavits severely lacked
in indicia of probable cause to believe the Saxon Avenue or
Penguin Avenue locations had evidence of drug activity.
Because the affidavits say almost nothing regarding Tucker,
the Saxon Avenue location, or the Penguin Avenue location,
Defendant Tucker argues that the affidavit gives no
“fair probability that contraband or evidence of a
crime will be found” at the Saxon Avenue or Penguin
Avenue locations.[46]
III.
Discussion
A.
The Saxon and Penguin Affidavits failed to establish probable
cause.
Defendant
Tucker argues that the Saxon and Penguin Affidavits lacked
evidence linking his residences to drug
trafficking.[47] Without this nexus, Tucker argues that
both search warrants lack probable cause.[48] The Court
agrees.
1.
Saxon Affidavit
A
common-sense reading of the Saxon Affidavit shows that no
nexus existed between the residence and any drug activity.
Detective Gilbride's statement that Rocha-Ayon
“traveled to 791 Saxon Avenue on February 16, 2017 to
collect drug proceeds from TUCKER to pay for the upcoming
delivery of cocaine”[49] is unsubstantiated. “An
affidavit must provide the magistrate with a substantial
basis for determining the existence of probable cause, and .
. . [a] wholly conclusory statement . . . fail[s] to meet
this requirement.”[50] “Under the Fourth Amendment, an
officer may not properly issue a warrant to search a private
dwelling unless he can find probable cause therefore from
facts or circumstances presented to him under oath or
affirmation. Mere affirmance of belief or suspicion is not
enough.”[51]
To
summarize, the Saxon Affidavit says law enforcement suspected
Columbus-area resident Rocha-Ayon of drug dealing. On January
15, 2017, Rocha-Ayon engaged in a suspected, but never
confirmed, drug transaction at a truck stop near Columbus
while using his white Infiniti.[52] The Saxon Affidavit also
says Rocha-Ayon had earlier come to Akron seven times over
seven months, [53] but the Affidavit gives no testimony
that he engaged in drug transactions in those seven trips and
gives no testimony that Rocha-Ayon had contact with Tucker or
the Saxon location in those trips. The Saxon Affidavit is
then limited to saying that Rocha-Ayon traveled to Saxon
Avenue on February 17, 2017; that a van associated with
Defendant Tucker came into the driveway after Rocha-Ayon
arrived; that the van associated with Defendant Tucker left
the Saxon Avenue house and then returned a short time later;
and that Rocha-Ayon's white Infiniti then left the
driveway and returned to the Columbus area.[54]
The
Saxon Affidavit does not say that Rocha-Ayon or Tucker ever
went into the Saxon Avenue location on February 17, 2017.
The
government argues that the affidavit is sufficient to support
the search of Tucker's Saxon house. The Government argues
support from Tucker's 2000 drug possession
conviction.[55]Obviously, a seventeen-year-old
conviction gives almost no support to search a house,
especially when the supporting affidavit says almost nothing
about criminal activity at the house other than that
Rocha-Ayon had parked in the house's driveway.
The
Saxon Affidavit also describes a 2016 anonymous tip reporting
drug activity at the Saxon house.[56] But without supporting
corroborating information, the tip gives nothing. And the
vague and unsubstantiated 2016 tip is stale. “A warrant
must be supported by ‘facts so closely related to the
time of the issue of the warrant as to justify a finding of
probable cause at that time.'”[57]
And
officers observed drug dealer Camilo Rocha-Ayon drive his
white Infiniti-the car allegedly he uses for drug trafficking
activities-to Tucker's Saxon house in February
2017.[58]
But
“the search warrant affidavit contained no evidence
that [Tucker] distributed narcotics from the Saxon Avenue
location, that he used the Saxon Avenue location to store
narcotics, or that any suspicious activity had taken place
there.”[59] The affidavit's evidence “did
not establish a fair probability that evidence of drug
trafficking would be found at [Tucker's] residence. A
more direct connection was required.”[60]
For
example, too much time passed between Rocha-Ayon's
suspected January 15, 2017, drug trafficking at the Columbus
area truck stop and his visit to Defendant Tucker's Saxon
house for the affidavit to establish a link between the Saxon
house and any drug activity that took place on January 15,
2017. Electronic surveillance showed Rocha-Ayon delivering a
duffel bag to an unidentified man-a narcotics transaction,
the affidavit alleged-near Columbus on January 15,
2017.[61] More than a month passed before
Rocha-Ayon drove to Tucker's Saxon house in February.
Likewise,
several days passed between Rocha-Ayon's visit to
Tucker's Saxon house and officers' later February 19,
2017, seizure of Rocha-Ayon's duffel bag of
cocaine.[62] These significant gaps in time undercut
the Government's argument that Rocha-Ayon's drug
activity was linked to Tucker's house.
The
fact that Rocha-Ayon drove to Tucker's Saxon house after
purchasing a vacuum sealer and plastic bags also fails to
establish probable cause. The affidavit only states that
Rocha-Ayon drove to the Saxon house and stayed there for an
hour or so.[63] There is no mention of Rocha-Ayon
carrying anything-the vacuum sealer, drugs, a duffel bag,
money-into or out of Tucker's house. The mere presence of
a drug dealer like Rocha-Ayon at Tucker's house does not
establish probable cause that the Saxon Avenue house had
evidence of illicit activity.
The
affidavit places significant weight on the fact that
Rocha-Ayon drove his Infiniti to Defendant Tucker's Saxon
house. Officers arrested Rocha-Ayon on February 19, 2017 with
large amounts of cocaine. He was driving the white Infiniti
when arrested. The Saxon Affidavit gives the opinion that
Rocha-Ayon used the Infiniti for drug activity, but used a
Chrysler for day-today driving.[64] The Saxon Affidavit then
gave the opinion that “narcotic traffickers are known
to use a different vehicle for traveling with contraband than
they use for everyday transportation.”[65]The Government
argues that Rocha-Ayon's use of the Infiniti to visit the
Saxon Avenue property gave probable cause to search that
property.[66]
The
Infiniti distinction is far too tenuous to justify searching
Tucker's Saxon house. The affidavit documents just a few
instances where Rocha-Ayon drove the Infiniti for
drug-related purposes.[67] These few instances do not establish
that Rocha-Ayon used the Infiniti exclusively for
drug-related purposes. More important, although the Infiniti
drove to the Saxon Avenue property, the Affidavit says
nothing about Rocha-Ayon ever entering the Saxon Avenue
property. The search warrant authorized searching the house,
not the Infiniti automobile.
In
fact, the affidavit itself seems to contradict that
presumption: the affidavit notes that Rocha-Ayon's
Infiniti “made a stop at the outlet malls on
I-71” after visiting Tucker's Saxon
house.[68] Because the affidavit fails to
demonstrate that Rocha-Ayon only used his Infiniti for
drug-related purposes and fails to demonstrate that the
Infiniti had anything to do with the Saxon ...