United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT DAMONDO BLACK'S MOTION TO
J. Dlott, United States District Court Judge
Damondo Black is charged with conspiracy to distribute
narcotics (marijuana, cocaine, and heroin) in violation of 21
U.S.C. § 846 (Count 1) and possession of a firearm in
connection therewith in violation of 18 U.S.C. §§
924(c)(1) and (2) (Count 2), as well as possession of a
firearm by a prohibited person in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 2 (Count 5). (Doc. 1.)
This matter is before the Court on Defendant's Motion for
Reconsideration of Magistrate's Order Denying Motion to
Suppress, (Doc. 133), and the United States' response.
(Doc. 134.) For the reasons that follow, Defendant's
Motion is hereby DENIED.
April 10, 2017, a Special Agent with the Bureau of Alcohol,
Tobacco, and Firearms prepared and presented an affidavit to
a United States Magistrate Judge for a search warrant for
three Cincinnati properties, including 6581 Golfway Drive.
(Doc. 106-1 at PageID 304, 306 (¶ 1).) The search
warrant for the Golfway Drive property, believed to be
Defendant Damondo Black's residence, was executed in the
early morning hours of April 11, 2017. (Id. at
PageID 306 (¶ 1(c)); see Doc. 106-2 at PageID
388 (¶ 70).) Later that day, another Special Agent
with ATF prepared and presented a separate affidavit for a
warrant to search a fourth Cincinnati property, 1746 Dale
Street, Apartment 3. (See Doc. 106-2 at PageID 351,
Damondo Black moved to suppress evidence seized from both the
Golfway Drive and Dale Street addresses. The Court conducted
a hearing on Defendant Damondo Black's Motion to Suppress
on November 21, 2017, and-after careful consideration-denied
the Motion by written Order on January 17, 2018. (Doc. 122.)
Defendant now moves for Reconsideration of that Order. (Doc.
RELATED PROCEDURAL MATTERS
addition to Defendant Damondo Black, four others are charged
in the instant indictment: Ricardo Maxwell, Darrell
Allsbrook, Samuel Washington, and Damondo Black's
brother, Jerry Black. (Doc. 1.) Defendant Jerry Black
previously moved to suppress evidence seized from another
property-1821 Tuxworth Avenue, #1-not at issue in the instant
motion. (Doc. 93.) The affidavit supporting the Tuxworth
Avenue search warrant (“Tuxworth Avenue
Affidavit”) was prepared by Cincinnati Police Officer
Maloney and presented to a Hamilton County, Ohio Municipal
Judge on February 19, 2016. See Doc. 93-1. In
responding to Defendant Jerry Black's Motion to Suppress,
the United States maintained that Defendant Jerry Black did
not live at the Tuxworth Avenue address so he lacked standing
to contest the issuance of the Tuxworth Avenue search
warrant. (Doc. 99 at PageID 266-68.) The Court conducted a
hearing on Defendant Jerry Black's Motion to Suppress on
November 20, 2017, and-finding the standing issue
dispositive-denied Defendant Jerry Black's Motion by
written Order on December 20, 2017. (Doc. 115.)
Jerry Black then filed a Motion for Reconsideration of the
Court's December 20, 2017 Order. (Doc. 121.) In his
Motion for Reconsideration, Defendant Jerry Black claimed
that the United States should be estopped from arguing that
he lacked standing to contest the search warrant for the
Tuxworth Avenue property because the same Officer Maloney who
provided the Tuxworth Avenue Affidavit swore in another
affidavit before the same Hamilton County Municipal Judge-for
a search warrant not at issue here-that the Tuxworth Avenue
address was in fact Jerry Black's residence. (Doc. 128 at
PageID 508-511.) This Court agreed that the Government should
be estopped from taking inconsistent positions that Defendant
Jerry Black resides at the Tuxworth Avenue address (in
seeking a search warrant) but does not
reside at the Tuxworth Avenue address (when contesting Jerry
Black's Motion to Suppress evidence found there). (Doc.
128.) The Court then examined the affidavit underlying the
Tuxworth Avenue search warrant, found it lacking, and granted
Defendant Jerry Black's Motion for Reconsideration.
Id. Defendant Damondo Black now asks this Court to
reconsider its Order Denying Defendant Damondo Black's
Motion to Suppress. (Doc. 133.)
STANDARD OF LAW
determining whether a search warrant is supported by probable
cause, a court may consider only the “four-corners of
the affidavit.” United States v. Frazier, 423
F.3d 526, 531 (6th Cir. 2005) (citing Whiteley v. Warden,
Wyo. State Penitentiary, 401 U.S. 560, 565 n.8 (1971)).
Thus, “information known to the officer but not
conveyed to the magistrate is irrelevant.” United
States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016)
(quoting United States v. Brooks, 594 F.3d 488, 492
(6th Cir. 2010) (citation omitted)).
affidavit must show a “likelihood of two things”
to establish probable cause for a search. Id.
(internal quotations and citations omitted). They are:
“first, that the items sought are seizable by virtue of
being connected with criminal activity; and second, that the
items will be found in the place to be searched.”
Id. (citing United States v. Church, 823
F.3d 351, 355 (6th Cir. 2016) (quoting Zurcher v.
Stanford Daily, 436 U.S. 547, 555 n.6 (1978))) (internal
quotations omitted). “[E]vidence of a crime” is a
critical component of a search warrant. Armstrong v. City
of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (citing
Zurcher). To this end, an applicant for a search
warrant must recite the statutory violation for which the
warrant is requested on the face of the warrant or in the
affidavit in support. See United States v. Abboud,
438 F.3d 554, 569-71 (6th Cir. 2006).
cause exists when “common-sense” suggests a
“fair probability” that contraband or evidence of
a crime “will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).
“[T]he affidavit supporting the search warrant must
demonstrate a nexus between the evidence sought and the place
to be searched.” United States v. Brown, 828
F.3d 375, 382 (6th Cir. 2016) (citing United States v.
Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)).
“The connection between the residence and the evidence
of criminal activity must be specific and concrete, not
‘vague' or ‘generalized.'”
Id. (quoting Carpenter, 360 F.3d at 595).
cause “is not a high bar.” Kaley v. United
States, 134 S.Ct. 1090, 1103 (2014). “It requires
only the kind of fair probability on which reasonable and
prudent [people, ] not legal technicians, act.”
Id. (citing Florida v. Harris, 133 S.Ct.
1050, 1055 (2013) (quoting Gates, 462 U.S. at 231,
238)) (internal quotations omitted) (alteration in original).
A reviewing court should give “great deference”
to a magistrate judge's probable cause determination and
reverse only if it was “arbitrarily” made.
United States v. Frechette, 583 F.3d 374, 379 (6th
Cir. 2009). It should not engage in “line-by-line
scrutiny of the warrant application's affidavit.”
United States v. Williams, 544 F.3d 683, 686 (6th
Cir. 2008). The affidavit should be judged “on the
adequacy of what it does contain, not on
what it lacks, or what a critic might say
should have been added.” United
States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000)
established its “totality-of-the-circumstances”
analysis against the backdrop of a supporting affidavit based
on a confidential informant's tip. “Informants'
tips, like all other clues and evidence coming to a policeman
on the scene, may vary greatly in their value and
reliability.” 462 U.S. at 232 (quoting Adams v.
Williams, 407 U.S. 143, 147 (1972).) An informant's
reliability, veracity, or basis of knowledge are relevant
considerations, but should not be applied rigidly.
Id. at 232-33; see United States v. Thomas,
605 F.3d 300, 307 (6th Cir. 2010) (“When an affidavit
relies on hearsay information from a confidential informant,
the judicial officer (and reviewing court) must consider the
veracity, reliability, and basis of knowledge for that
information as part of the totality-of-the-circumstances
review.”); see also United States v. King, 227
F.3d 732, 740 (6th Cir. 2000) (Veracity, reliability, and
basis of knowledge of the tip “are relative where the
strength of one factor may compensate for the deficiency of
another.” (citing Gates, 462 U.S. at 230,
Good-Faith Exception ...