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United States v. Black

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

February 14, 2018

JERRY BLACK, Defendant.


          Susan J. Dlott Judge United States District Court

         Before the Court is Defendant Jerry Black's Motion to Reconsider this Court's Order Denying his Motion to Suppress (Doc. 121), and the responsive memoranda (Docs. 123-25).

         I. FACTS[1]

         On 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 the evidence seized, Defendant Jerry Black and non-party Juanda Bankhead were indicted in the Hamilton County, Ohio Court of Common Pleas. 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. Ms. Bankhead was indicted on one count of trafficking in marijuana and one count of possession of marijuana. 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. 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.

         On June 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 PageID 1.) On September 29, 2017, he filed a Motion to Suppress with respect to any evidence seized from Tuxworth Avenue, arguing that no facts within the affidavit supported probable cause to search the property. (Doc. 93.) The Government opposed his Motion, arguing that the warrant was sufficient and, regardless, the Leon good-faith rule[2] would apply. (Doc. 99 at PageID 269-72.) As an initial matter, however, the Government maintained that Mr. Black lacked standing to contest the issuance of the search warrant (id. at PageID 266-68) and that his previous guilty plea in the state criminal proceeding acts as a waiver against collateral attack of the warrant in the federal case (id. at PageID 268- 69).

         On the question of standing, Mr. Black claimed a legitimate expectation of privacy at the Tuxworth Avenue property, and thus protection under the Fourth Amendment, based on his romantic relationship with tenant Juanda Bankhead. (Doc. 101 at PageID 284.) As her boyfriend, he was “a frequent and legitimate overnight guest of Ms. Bankhead at her apartment” on Tuxworth Avenue and thus “ha[d] standing to contest the validity of the search warrant.” (Id.) To this end an evidentiary hearing was held on November 20, 2017, at which Ms. Bankhead testified. Thereafter, the Court took the Motion under submission.

         Finding the standing issue dispositive, on December 20, 2017, the Court denied Mr. Black's Motion to Suppress:

“To 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.
If the 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.
Moreover, 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.

(Doc. 115 at PageID 412-13 (italic emphasis in original, bold emphasis added).) In its Order, the Court expressly did not render an opinion on the issue of “waiver” or on the merits of Mr. Black's Motion. (Id. at PageID 411.)


         Defendant urges the Court to reconsider its credibility assessment of Ms. Bankhead for two reasons. First, it was improper for the Court to doubt her testimony that she neither “saw nor smelled” the 100 pounds of marijuana found in her basement based on its own experience-in a prior trial-“at which only 25 pounds of marijuana was present in the courtroom as evidence, and the smell was, in a word, overwhelming.” (Motion to Reconsider, Doc. 121 at at PageID 432 (quoting Order Denying Motion to Suppress, Doc. 115 at PageID 413).) Inasmuch as the Government introduced no evidence of how the marijuana seized from Tuxworth Avenue “was packaged, in what form it existed, where in the basement it was located, or for how long it had been stored there, ” the Court's conclusion was impermissibly grounded in “speculation and evidence outside the record.” (Id. at PageID 432-33.)

         Second, regarding the lease agreement for the Gobel Avenue apartment, the Court should have believed Ms. Bankhead's statement that the dates on it were wrong and that she indeed resided at Tuxworth on the day the search warrant was executed. In support of that testimony, Defendant now tenders the Affidavit of George Marshall, who avers that he owns the rental property at 3164 Goebel Avenue.[3] (Marshall Aff., Doc. 121-1 at PageID 436 (¶ 4).) Mr. Marshall confirms that Ms. Bankhead is a former tenant who, at his request, vacated the property because she was behind in her rent. (Id. (¶¶ 5-8).) And she vacated that property “by the end of February 2015, ” essentially a year prior to the search of Tuxworth Avenue. (Id. (¶¶ 9, 10).)

         These reasons aside, Defendant independently maintains that the Government should be estopped from arguing that Defendant lacks standing to contest the search warrant because, in a “separate but related matter, ” it has “determined and asserted [that] Mr. Black resides at 1821 Tuxworth, #1.” (Supplement to Motion to Reconsider, Doc. 123 at PageID 458.) Regarding co-Defendant Samuel Washington, on March 20, 2017, the very same Officer Maloney prepared and presented an affidavit to Hamilton County Magistrate Judge Brad Greenberg for a warrant to search 3213 Mayridge Court, #4, Cincinnati, Ohio 45211 (hereinafter, the “Mayridge Court” affidavit). (Doc. 123-1 at PageID 462-67.) Her application was made in connection with the ongoing investigation into the felony offenses (including assault, murder, and drug trafficking) committed by members of a group known as FDD (Focus Dedication and Discipline). (Id. at PageID 463.)

         Although not the target of the warrant, Defendant was mentioned several times throughout four discrete paragraphs in Officer Maloney's supporting affidavit. For example, she states that, on November 11, 2015, a source of information to Task Force Officer Stratmann referred to Defendant as the “leader” of FDD and the “weed man” in the West End neighborhood of Cincinnati who would sell “ounces to pounds” of marijuana. (Id. at PageID 464.) Also according to Officer Maloney, “TFO Stratmann identified 1821 Tuxworth Avenue as an address associated with Jerry BLACK and other members of FDD.” (Id. (emphasis added).) Continuing, she testified:

On February 19, 2016 officers executed a search warrant at the residence of Jerry BLACK at 1821 Tuxworth Ave #1. During the search of the residence officers recovered approximately 49, 700 grams of marijuana in the basement, $142, 210 in the master bedroom closet, and 3 handguns in the master bedroom closet. Jerry BLACK told officers that FDD was not a gang. BLACK stated that FDD was a record label with artists all throughout Cincinnati and he was the CEO. Jerry BLACK pled guilty to Trafficking in Marijuana and Having Weapons Under Disability and was sentenced to the Ohio Department of Corrections. Your Affiant learned that FDD members continue to be involved in illegal activities to include drug trafficking throughout the city.

(Id. at PageID 464-65 (emphasis added).)[4] The position taken by Officer Maloney in support of the Maybridge warrant-Tuxworth Avenue is Jerry Black's residence-is “clearly inconsistent” with the position now taken by the Government-Tuxworth Avenue is not Jerry Black's residence-in response to Defendant's Motion to Suppress. (Doc. 123 at PageID 459.) This contradiction unfairly advantages the Government, and is a “perversion” of the judicial process. (Id. at PageID 458-59.) Accordingly, Defendant urges the Court to exercise its discretion, apply the doctrine of judicial estoppel, and prohibit the Government from arguing that he lacks standing to challenge the Tuxworth Avenue search warrant. (Id. at PageID 459-60.)

         III. ANALYSIS

         A. The Government may not contest Defendant's standing to challenge the Tuxworth Avenue search warrant.

         The Court concludes that application of the doctrine of “judicial estoppel” is appropriate here, which, in turn, necessitates a finding that the Government may not contest ...

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