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United States v. Black

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

April 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAMONDO BLACK, Defendant.

          ORDER DENYING DEFENDANT DAMONDO BLACK'S MOTION TO RECONSIDER

          Susan J. Dlott, United States District Court Judge

         Defendant Damondo Black[1] 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[2] 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.

         I. BACKGROUND

         On 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).)[3] 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)[4].) 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, 352-94.)[5]

         Defendant 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. 133.)

         II. RELATED PROCEDURAL MATTERS

         In 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.)

         Defendant 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.)

         III. STANDARD OF LAW

         A. Probable Cause

         In 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)).

         An 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).

         Probable 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).

         Probable 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) (emphases added).

         Gates 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, 238-39)).

         B. Good-Faith Exception ...


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