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United States v. McCoy

United States District Court, S.D. Ohio, Western Division

November 10, 2017

United States of America,
v.
Erik McCoy - 1, Derrick Heard - 2, Defendants.

          ORDER

          Hon. Michael R. Barrett, United States District Court.

         This matter is before the Court following hearings conducted on July 6, 2017 and July 11, 2017 regarding Defendant Erik McCoy's Motion to Suppress (Doc. 31), Defendant Derrick Heard's Motion to Suppress (Doc. 32), and Defendant Erik McCoy's Motion for Franks Hearing (Doc. 33). The motions are fully briefed, and ripe for disposition.

         I. BACKGROUND

         On October 14, 2016, officers with the Cincinnati Police Department applied for, obtained and executed two separate search warrants. The first warrant was for a building at 4403 Glenway Avenue, which is a two-story, brick structure housing a barbershop on the right and a connected apparel store on the left (D1; D6). The first warrant was authorized at 5:42 p.m. The second warrant was for a residence at 10515 Hadley Road. The second warrant was authorized 9:26 p.m. The affidavits in support of both warrant applications are the product of the same investigation.

         The Defendants challenge both the veracity of, and probable cause for, the affidavits submitted in support of the applications for the relevant search warrants.[1] The first affidavit indicates that Officer Longworth was contacted by an “informant.” The informant claimed that an individual known as “Derrick” sold marijuana from the Glenway Avenue establishment. According to the informant, Erik McCoy runs the barbershop and apparel store on Glenway Avenue, and also sells marijuana from those locations. The informant also indicated that Heard and McCoy shared a residence on Hadley Road. While the affidavit claims that Heard and McCoy sell drugs from 4403 Glenway Avenue, the affidavit is silent on whether the informant ever saw a drug sale take place at either the Glenway Avenue location or Hadley Road residence. However, the informant claims to have seen marijuana and guns at the Hadley Road residence.

         According to the affidavit, Vincent Brown (whose real name was unknown at the time) also sells marijuana from the stores (P1). Heard, McCoy and Brown all have criminal records, according to the affidavit. McCoy and Brown's records were known prior to October 14, 2016, while Heard's record was confirmed while he was being detained (P1). Brown was on bond for an alleged felony and under investigation for robbery. However, as of the time of the initial receipt of this information, Officer Longworth did not know Brown or Heard's last names.[2]

         Officer Longworth acknowledges the above-described information was insufficient to establish probable cause for search warrant, as the informant lacked a previous track record of reliability (Tr. 69). He testified that, without more, this information was insufficient for further action (Tr. 50 and 51). To gather additional information in support of a search warrant, Officer Longworth began surveillance of the Glenway Avenue address. He does not remember seeing McCoy or Heard at the location prior to the day of the search. He was focused on Brown (Tr. 64). Officer Longworth indicated in the affidavit that the establishment had the type of foot traffic he considered consistent with drug trafficking, and inconsistent with an athletic apparel shop or barbershop (P1). He further indicated that, on October 14, 2016, Brown and Heard arrived together in a black Honda with tinted windows and illegally parked at a bus stop. Brown was arrested outside of the barbershop for investigation of robbery and taken to District 3.[3] While officers were arresting Brown outside of the establishment, multiple officers entered the store to question Heard about the traffic violations (Tr. 42, 75-76). At that time, Heard had “probably a couple of ounces” on his person in plain view (Tr. 43-48), which Officer Longworth describes as a large bag (Tr. 73). This “plain view” testimony is supported by the cell phone video recording supplied by Defendants. In describing the marijuana on Heard's person, the affidavit states: “the affiant stopped Derrick Heard and noticed he had a large bag of marijuana hanging from his pants in ‘plain view'” (P1; P2).[4] Heard also had several hundred dollars on his person, which was reflected in the affidavit (P1; P2).

         Citing Heard's possession of marijuana as evidence corroborating the informant's tip about Heard and McCoy's alleged drug sales at the barbershop and athletic apparel store, law enforcement obtained a warrant to search all of the Glenway Avenue establishment. Law enforcement found an electronic scale, packaging material, a handgun box, handgun ammunition, and a handgun magazine (P1;P2). Law enforcement also found mail to McCoy at the Glenway Avenue establishment, although the affidavit does not state which address the mail listed (Glenway Avenue, Hadley Road, or a different address). Law enforcement used the fruits of the Glenway Avenue search to obtain a second warrant to search the home on Hadley Road, where Heard and McCoy were said to reside.

         II. ANALYSIS

         A. Search 1-4403 Glenway Avenue

         First, the Court will address the sufficiency of the information supplied by the confidential informant, which depends on the informant's reliability.

         An informant's reliability is assessed as part of the “totality of the circumstances” test used to determine whether probable cause exists. United States v. Allen, 211 F.3d 970, 972 (6th Cir. 2000). When a court is assessing information from a confidential informant, the court must consider the informant's veracity, reliability, and basis of information as part of the totality of the circumstances analysis. United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). An informant's statements may be treated as trustworthy and reliable, even without corroboration, when the informant has a previous track record of reliability: “[I]f the prior track record of an informant adequately substantiates his credibility, other indicia of reliability are not necessarily required.” Id. at 820 (quoting United States v. Smith, 182 F.3d 473, 483 (6th Cir. 1999)). Otherwise, an informant's statements are akin to an “anonymous tip” requiring corroboration. Id. “Anonymous tips . . . demand more stringent scrutiny of their veracity, reliability, and basis of knowledge than reports from confidential informants.” Id.

         Here, the affidavit includes none of the above-described indicia of reliability regarding the informant. Indeed, there is nothing in the affidavit that describes a basis for reliability of the informant's information. The Court must therefore look to whether the tipster's information was corroborated.

         1. Corroboration

         Absent the reliability addressed in Section II.A above, an anonymous tip must be accompanied by “substantial independent police corroboration” to support a finding of probable cause. Allen, 211 F.3d at 976. When attempting to obtain a warrant based on an anonymous tip, the accompanying affidavit “must contain a statement about some of the underlying circumstances indicating that the informant's information was credible or that his information was reliable.” Helton, 314 F.3d at 822. A tip can take on an increased level of significance if corroborated, even in part, by later investigation. Id. at 823.

         Beyond the information provided by the anonymous tipster, law enforcement cited the following information to obtain a warrant: (1) excessive “foot traffic” at 4403 Glenway Avenue; and (2) marijuana found on Heard's person. As further discussed below, the affidavit also corroborates the alleged association between Heard and Brown, who each have drug-related criminal histories.

         a. Foot Traffic

         Courts have considered “foot traffic” when making probable cause determinations. Specifically, excess foot traffic coming to and from a residence may help support a search warrant for drug-related activity. United States v. Perry, 864 F.3d 412, 415 (6th Cir. 2017); United States v. Williams, 272 Fed.Appx. 473, 476 (6th Cir. 2008). However, the Court is not persuaded that “foot traffic” coming to and from a business establishment is sufficient to corroborate an anonymous tipster's information regarding alleged drug sales. Cf. United States v. Serrano, 450 F.Supp.2d 227, 234 (S.D.N.Y. 2006) (“[S]urveillance of East Coast Customs was of limited use given the foot traffic into and out of the establishment, which made it difficult to differentiate legitimate customers from those involved with Serrano's drug trade.”). It appears that Officer Longworth attempted to provide context for his observations when he stated the following in his affidavit: “On several occasions, the affiant observed a large amount of foot traffic consistent with drug trafficking and not consistent with the type of business operating there.” (P1; P2). Still, the foregoing conclusory statement is insufficient to corroborate the tipster's information. Indeed, Officer Longworth conceded at the hearing that the foot traffic, even combined with information from the anonymous tipster, was insufficient to obtain a search warrant for 4403 Glenway Avenue (Tr. 69).

         Absent additional information regarding why the volume of foot traffic at 4403 Glenway Avenue was inconsistent with the nature of the business, the Court finds that observations regarding foot traffic to and from a business to be insufficient corroboration of drug trafficking. Otherwise, an anonymous tip plus observations of “foot traffic” could ...


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