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United States v. McCrackin

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

March 28, 2018




         This 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).

         The 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. 24).[1]

         I. BACKGROUND

         On 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).

         Defendant 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.

         For 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).[2]

         II. FACTS

         On 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.[3] (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 9:1-3).

         The HCH 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” identity.

         Over 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).

         Recognizing 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 narcotics. (Id.)

         Specifically, 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).

         On 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. 1).

         At 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.)

         The 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.)

         Task 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).

         At 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 appearance.

         Zee, 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. ...

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