United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION TO
J. Dlott Judge United States District Court.
matter is before die Court on Defendant Jerry Black's
Motion to Suppress (Doc. 93), and die responsive memoranda
(Docs. 99, 101). An evidentiary hearing was held on November
20, 2017. For the reasons that follow,
Defendant's Motion will be DENIED.
February 19, 2016, Cincinnati Police Officer Kerri Maloney
prepared and presented an affidavit to a Hamilton County
Magistrate Judge for a warrant to search 1821 Tuxworth
Avenue, #1, Cincinnati, Ohio 45238. (Doc. 93-1.) The warrant
was issued and, as a result of die evidence seized, Defendant
Jerry Black and Juanda Bankhead were indicted in the Hamilton
County, Ohio Court of Common Pleas. (See
Defendant's Exh. B.) Mr. Black was indicted on two counts
of trafficking in marijuana, two counts of possession of
marijuana, one count of receiving stolen property, and one
count of having weapons while under a disability.
(Id.) Ms. Bankhead was indicted on one count of
trafficking in marijuana and one count of possession of
marijuana. (Id.) On July 26, 2016, Mr. Black entered
a plea of guilty to two counts of trafficking (reduced) and
one count each of receiving stolen property and having
weapons under a disability; he was sentenced to 18 months in
state custody. (Defendant's Exhs. E, F.) On August 2,
2016, Ms. Bankhead pled guilty to an amended and reduced
charge of disorderly conduct; she simply was required to pay
a $100.00 fine. (Defendant's Exhs. C, D.)
21, 2017, Mr. Black was indicted by a federal grand jury with
one count of conspiracy to possess with intent to distribute
and to distribute marijuana, cocaine, and heroin, in
violation of 21 U.S.C. § 846. (Doc. 1, Count 1 at PagelD
1.) He has filed a Motion to Suppress with respect to any
evidence seized from Tuxworth Avenue, arguing that no facts
within the affidavit support probable cause to search the
property. The United States, of course, disagrees that the
warrant is insufficient and urges that, regardless, the
Leon good-faith rule would apply. But, as an initial
matter, the Government maintains that Mr. Black lacks
standing to contest the issuance of the search warrant. The
Court will address this question first, and finding it
dispositive, renders no opinion on whether Mr. Black's
guilty plea in state court acts as a waiver against
collateral attack of the warrant here, or whether-on its
merits-the affidavit establishes the kind of "fair
probability" the Fourth Amendment requires under
Illinois v. Gates, 462 U.S. 213, 238(1983).
claims a legitimate expectation of privacy at the Tuxworth
Avenue property, and thus protection under the Fourth
Amendment, based on his romantic relationship with Ms.
Bankhead. (Doc. 101 at PagelD 284.) As her boyfriend, he was
"a frequent and legitimate overnight guest of Ms.
Bankhead at her apartment" on Tuxworth Avenue and thus
"has standing to contest the validity of the search
Bankhead testified that she resides at the Tuxworth Avenue
property with four of her five children. The unit she rented
consisted of two floors and a basement where the washer and
dryer are located, as well as a garage. She is the only
tenant on her month-to-month lease that she signed on May 31,
2015 and occupancy is limited to herself and her four
children, who are specifically named. Ms. Bankhead further
testified that Defendant was "not on" the lease,
but was (and remains) her boyfriend, had a key to the unit,
occasionally stayed overnight on the weekends, and stored
clothing there. His contribution to the household was
"running errands" for her while she worked at
Citibank, which consisted largely of transporting her sons to
and from football practice three evenings a week.
hold that an overnight guest has a legitimate expectation of
privacy in his host's home merely recognizes the everyday
expectations of privacy that we all share."
Minnesota v. Olson, 495 U.S. 91, 98 (1990).
"Staying overnight in another's home is a
longstanding social custom that serves functions recognized
as valuable by society." Id. "From the
overnight guest's perspective, he seeks shelter in
another's home precisely because it provides him with
privacy, a place where he and his possessions will not be
disturbed by anyone but his host and those his host allows
inside." Id. at 99.
Court were to credit Ms. Bankhead's testimony-a textbook
recitation of what distinguishes a "casual" visitor
from one with a legitimate expectation of privacy-Defendant
plainly would have standing to contest the search at Tuxworth
Avenue. See United States v. Pollard, 215 F.3d 643,
647-48 (6th Cir. 2000) (standing found when defendant had
been friends with lessee for seven years, occasionally spent
the night at the residence, kept personal belongings in the
living room closet, and sometimes ate with the family during
his visits). However, the Court does not find Ms.
Bankhead's scripted testimony at all believable. Most
astonishing was her denial that she neither saw nor smelled
the 100 pounds of marijuana discovered in-and eventually
seized from-her basement at Tuxworth Avenue, even though she
testified that she did laundry in that space every
night. This Court has a clear recollection of presiding
at a previous criminal trial at which only 25 pounds of
marijuana was present in the courtroom as evidence, and the
smell was, in a word, overwhelming.
we question whether Ms. Bankhead actually resides at the
Tuxworth property. At the hearing, the Government produced a
"Residential Lease Agreement" for property located
at 3164 Gobel Avenue, Apt. 2, Cincinnati, Ohio 45211 between
Ms. Bankhead and a different landlord with a term
beginning February 1, 2015 and ending March 1, 2016.
(Government Exh. 2.) When asked about the overlap between
this lease and the one for Tuxworth Avenue, she said that the
dates "can't be right" because she "moved
into Gobel" with her mother in 2014. Common sense, of
course, undercuts this explanation. Surely a typical
landlord-always mindful of the need to protect his interests
in the event eviction proceedings become necessary- would not
be so careless as to list incorrect start and end dates on a
lease, particularly by a whole year in the future.
The Court is not so gullible as to believe that both landlord
and tenant failed to catch this mistake.
offers no evidence other than Ms. Bankhead's improbable
testimony in support of his contention that he is entitled to
Fourth Amendment protection vis-a-vis the Tuxworth Avenue
property. The Court consequently finds that Defendant lacks
standing to contest the validity of the search warrant, and
hence his Motion to Suppress must be DENIED.
reasons set forth above. Defendant Jerry Black's Motion