United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE AND STATEMENTS
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
criminal case is before the Court on Defendant's motion
to suppress evidence and statements (Doc. 16), and the
Government's response in opposition (Doc. 21).
Court held an evidentiary hearing on October 20, 2017, and
heard testimony from Hamilton County Heroin Task Force
Officer Carrie Heuser of the Cincinnati Police Department
Narcotics Unit (“TFO Heuser”). (Doc.
November 2, 2016, Defendant Martin McCrackin was charged by
way of a federal indictment with four counts, including:
distribution of heroin mixtures, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Counts 1 and 2); possession of a
firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (Count 3); and
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 4). The
charges arise from a Hamilton County Heroin Task Force (the
“HCH Task Force”) investigation, in conjunction
with the Fairfax, Ohio Police Department (the “Fairfax
PD”). The investigation ultimately resulted in a stop
of Defendant's vehicle, a search of Defendant's
person, car, and home, and a police interview subsequent to
Defendant's arrest. (Doc. 16 at 6-7; Doc. 21 at 3).
moves for suppression of the evidence obtained and any
statements he made. (Doc. 16). Defendant argues that his
vehicle was stopped without the benefit of a warrant and in
violation of his constitutional rights, and that any
derivative evidence and statements obtained as a result
should be excluded as fruit of the poisonous tree.
purposes of this Order, the Court will rely upon the facts as
set forth in the parties' briefs (Docs. 16 and 21), as
well as the testimony and evidence proffered at the October
20, 2017 suppression hearing (Doc. 24).
October 20, 2016, the Fairfax PD called the HCH Task Force to
the scene of a potential heroin overdose, located in an
office building at 5725 Dragon Way in Fairfax,
Ohio. (Doc. 16 at 3). TFO Heuser and two other
HCH Task Force Officers arrived at the scene to find a white
female lying on the floor, deceased. (Id.) Among the
items collected from the scene were the victim's cell
phone, as well as a paper-fold containing suspected heroin,
which was found in the victim's pocket. (Doc. 24 at
Task Force began investigating the presumed overdose
fatality, in an effort to determine who sold the narcotics to
the deceased. (Doc. 21 at 2). As part of its investigation,
the HCH Task Force searched the deceased's cell phone,
looking through her text messages and contacts.
(Id.) In doing so, the HCH Task Force discovered a
contact in the deceased phone, identified only as “Zee,
” whom the deceased had sent text messages to before
her death, asking to buy heroin. (Doc. 16 at 3-4).
Accordingly, the HCH Task Force believed that the contact
known as “Zee” was the individual who sold the
fatal dose of heroin to the deceased. (Doc. 21 at 2).
However, at that time, no law enforcement officer involved in
the investigation had knowledge of “Zee's”
the next few days, TFO Heuser maintained custody of the
deceased's cell phone. (Doc. 24 at 10). At some point, on
or before October 25, 2016, the deceased cell phone received
a text message from Zee. (Id. at 10-11; Doc. 21).
TFO Heuser had not prompted or initiated the communication.
(Doc. 24 at 12:6-11). Based on the text message, TFO Heuser
concluded that Zee believed the deceased was still alive.
(Id. at 12:25-13:3). The text message from Zee
inquired whether the deceased had liked the narcotics
previously provided and whether the deceased wished to
purchase more. (Id. at 12:18-21).
that Zee was unaware the deceased had died, TFO Heuser
effectively assumed the identity of the deceased by text
message and attempted to arrange another sale of narcotics.
(Id. at 13). TFO Heuser initially arranged the
“buy bust” for October 25, 2016. (Doc. 16 at 4).
However, Zee did not appear on that date. (Doc. 24 at 14).
TFO Heuser arranged to meet Zee the following day to purchase
TFO Heuser, still posing as the deceased, arranged to meet
Zee on October 26, 2016, in the parking lot of a Frisch's
restaurant, located on Wooster Pike in Cincinnati, Ohio, to
purchase $40 worth of heroin. (Doc. 16 at 4). TFO Heuser
specifically selected the Frisch's parking lot because it
was an open area, and it was close to the location where Zee
met the deceased on the day she died (i.e., it was
familiar to both Zee and the deceased). (Doc. 24 at 15).
October 26, 2016, the Fairfax PD, in marked vehicles, set up
surveillance around the Frisch's parking lot. (Doc. 16 at
5). Additionally, the HCH Task Force set up covert
surveillance in the parking lot, where TFO Heuser was
operating in a plain clothes capacity. (Id.) TFO
Heuser was on foot in the parking lot, and wore a recording
device on a lanyard around her neck. (Gov. Ex. 2; Def. Ex.
approximately 1:34 p.m., TFO Heuser sent a text message to
Zee from the deceased's phone, and asked Zee if he was
close. (Doc. 16 at 5). Zee replied, “Yea.”
(Id.) Shortly thereafter, at 1:39 p.m., the HCH Task
Force observed a grey four-door Ford Taurus pulling into the
Frisch's parking lot. (Id.)
Taurus parked in a spot near the Frisch's building,
facing the street. (Id.) At the time, there were
approximately five cars parked in the same row as the Taurus.
(Doc. 24 at 19). But for the covert officers, however, none
of the other cars were occupied. (Id.) Moreover,
while other cars pulled into the parking lot within the same
time frame, none of those other vehicles parked in the same
row as the Taurus. (Id.)
Force Officers observed that the Taurus had temporary license
plates and heavily tinted windows. (Id. at 20). TFO
Heuser also noted that the windows of the Taurus were open
approximately an inch or two, and the smell of marijuana was
emanating from the car. (Id. at 20-21).
approximately 1:41 p.m., Zee called the deceased's cell
phone, which TFO Heuser answered. (Doc. 16 at 5). Speaking to
Zee by telephone was TFO Heuser's first confirmation that
Zee was male. (Doc. 24 at 55-56). Beyond that, TFO Heuser
still had no knowledge as to Zee's identity or
however, recognized that TFO Heuser was not the deceased and
asked her to identify herself. (Doc. 16 at 5-6). TFO Heuser
maintained a conversation with Zee as she approached the
Taurus from behind. (Id. at 6; Doc. 24 at 21-22).
Specifically, TFO Heuser told Zee that the deceased had gone
to the building across the street from Frisch's to get
another set of keys. (Doc. 24 at 22). Zee then spotted a
woman walking in the parking lot of the building across the
street (i.e., where TFO Heuser told Zee the deceased
had gone). (Id.) Zee asked TFO Heuser whether the
woman across the street was the deceased. ...