United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER JUDGE.
the Court is Defendant Vanness Oliver's Motion to
Suppress, Doc #: 134. Oliver seeks to suppress evidence
obtained pursuant to a warrant authorizing a search of his
home. Oliver asserts that the search warrant was issued
without probable cause, in violation of the Fourth Amendment
to the United States Constitution. For the following reasons,
the Motion and Oliver's request for an evidentiary
hearing on the Motion are DENIED.
April 24, 2017, Detective Nicole Gearhart of the Mansfield
Police Department submitted an affidavit in support of a
request for a search warrant to a Mansfield Municipal Court
judge. See Doc #: 134-1. At the time, Detective
Gearhart was an investigator in the METRICH Enforcement Unit
(“METRICH”). Id. Her request sought a
warrant to search Oliver's home located at 119 Boughton
Avenue, Mansfield, Ohio (“119 Boughton”).
Id. The Mansfield Municipal Court judge issued the
warrant, authorizing a search of Oliver's home for
controlled substances and contraband. Id. METRICH
officers executed the warrant on April 25, 2017 and found
drug paraphernalia, a Smith and Wesson handgun, 19.39 grams
of cocaine, 26.53 grams of heroin, 22 foil packages
containing 18.4 grams of Suboxone, and $3, 472 in cash. Doc
#: 1, Indictment ¶¶ 18-19.
October 18, 2017, Oliver was charged in a multi-defendant,
multi-count indictment with: conspiracy to possess with
intent to distribute and to distribute heroin, in violation
of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) (Count
1); possession with intent to distribute and distribution of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) (Count 18); possession with intent to distribute
and distribution of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (Count 19); and being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Count 20). Doc #: 1. Oliver filed the
instant Motion to Suppress on April 15, 2018. Doc #: 134.
Although he did not request an evidentiary hearing in his
Motion, he requested one on the record during the Court's
April 16, 2018 Pre-Trial Conference. Doc #: 137. The
Government filed its Response on May 7, 2018. Doc #: 142.
Oliver filed his Reply on May 17, 2018. Doc #: 145.
Probable Cause Determination
claims that the Mansfield Municipal Court judge lacked
probable cause to issue the search warrant. The Fourth
Amendment to the United States Constitution provides that
“no warrant shall issue, but upon probable
cause....” In reviewing a judge's determination
that probable cause existed, the Court must ask whether,
under the totality of circumstances, the judge had a
“substantial basis for concluding that a search would
uncover evidence of wrongdoing.” United States v.
King, 227 F.3d 732, 739 (6th Cir. 2000). The issuing
judge's probable cause determination should be paid great
deference by the reviewing court and should not be set aside
unless arbitrarily exercised. United States v.
Pelham, 801 F.2d 875, 877 (6th Cir. 1986). Oliver
presents several arguments for why the Court should find that
the warrant and affidavit do not support the Mansfield
Municipal Court judge's probable cause determination. The
Court will address each in turn.
principal argument is that the warrant affidavit fails to
cite any nexus between Oliver's alleged drug trafficking
and 119 Boughton. Mot. 3. The Fourth Amendment requires a
warrant affidavit to “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)). “[W]hether an
affidavit establishes a proper nexus is a fact-intensive
question resolved by examining the totality of circumstances
presented.” Brown, 828 F.3d at 382 (citations
omitted). Oliver claims that the warrant affidavit fails to
allege that any criminal activity occurred at 119 Boughton,
except for an allegation that Oliver was selling drugs from
his home on July 8, 2013. Rep. 4. However, the warrant
affidavit contains eight separate allegations, from July 8,
2013 to April 13, 2017, that Oliver was selling drugs from,
and resided at, 119 Boughton. These tips establish a
sufficient nexus between Oliver's drug trafficking
activity and 119 Boughton.
Oliver argues that the warrant affidavit was not based on
reliable information. Mot. 5. He avows that the affidavit
listed only unsupported assertions made by unknown or
unidentified persons. Id. Oliver contends that
“vague assertions from persons, who are not even
alleged to be known or reliable to law
enforcement” are insufficient to establish
probable cause. Mot. 2-3 (emphasis in original). When
reviewing the sufficiency of a warrant affidavit, the Court
must consider the veracity, reliability, and basis of
knowledge for the information as part of the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 239
(1983). “Tips from named informants are inherently more
reliable than those from confidential informants because
named informants face a greater risk of criminal liability
for fabrications.” United States v. Alford,
717 Fed.Appx. 567, 570 (6th Cir. 2017) (citing United
States v. May, 399 F.3d 817, 823 (6th Cir. 2005)). Sixth
Circuit precedent “clearly establishes that the affiant
need only specify that the confidential informant has given
accurate information in the past to qualify as
reliable.” United States v. Brown, 732 F.3d
569, 574 (6th Cir. 2013). “Consequently, an affidavit
including a tip from an informant that has been proven to be
reliable may support a finding of probable cause in the
absence of any corroboration.” United States v.
Woosley, 361 F.3d 924, 926-27 (6th Cir. 2004).
case, the warrant affidavit contains information that METRICH
received from at least sixteen concerned citizens, two
confidential sources, and three law enforcement officers. Doc
#: 134-1, Aff. ¶ 30. At least twelve of the concerned
citizens were known to METRICH.Id. These known concerned
citizens had previously provided METRICH with “valuable
information” that had been “independently
corroborated and proven reliable.” Id. ¶
31. Further, the warrant affidavit presents eight separate
instances where known concerned citizens or confidential
sources allegedly bought heroin from Oliver or saw him with
firearms. In five of these instances, the known informants
personally purchased heroin from Oliver at 119 Boughton,
observed thousands of dollars of stolen property at 119
Boughton, and/or provided details as to where Oliver kept
drugs at 119 Boughton. See Id. ¶¶ 20,
22-24, and 28. Any of these allegations alone supports a
finding of probable cause.
assuming, arguendo, that the informants were not
known to METRICH or known to be reliable, METRICH
corroborated their tips with a controlled drug transaction on
April 13, 2017. Doc # 134-1 at ¶ 27. “[A]n
affidavit that supplies little information concerning an
informant's reliability may support a finding of probable
cause, under the totality of the circumstances, if it
includes sufficient corroborating information.”
United States v. Woosley, 361 F.3d 924, 927 (6th
Cir. 2004). During the controlled buy, METRICH observed
Oliver leaving 119 Boughton and driving to meet a
confidential informant. Doc # 134-1 at ¶ 27. Oliver then
sold heroin to the informant. Id. METRICH observed
Oliver at 119 Boughton again on April 24, 2017. Id.
¶ 29. At that time, METRICH officers also observed a
vehicle registered to Ashiya Oliver (Oliver's wife) of
119 Boughton. Id. The controlled buy, observations
of Oliver at 119 Boughton, and his wife's car registered
to the 119 Boughton address corroborated the informants'
statements that Oliver lived at 119 Boughton and was selling
heroin. This information coupled with the numerous tips
received from sixteen different sources sufficiently
supported the judge's probable cause determination.
Oliver argues that the warrant affidavit was based on stale
information, spanning five years. Mot. 5. As previously
discussed, Oliver asserts that the only allegation of
criminal activity at his home dates back to July 8, 2013.
Mot. 3. In analyzing whether information is stale, the Court
considers the four Abboud factors: “(1) the
character of the crime (chance encounter in the night or
regenerating conspiracy?), (2) the criminal (nomadic or
entrenched?), (3) the thing to be seized (perishable and
easily transferable or of enduring utility to its holder?),
and (4) the place to be searched (mere criminal forum of
convenience or secure operational base?).” United
States v. Young, 847 F.3d 328, 347 (6th Cir. 2017)
(citing United States v. Abboud, 438 F.3d 554,
572-73 (6th Cir. 2006)).
conspiracy to traffic drugs is not a chance encounter in the
night; it is a regenerating conspiracy. Young, 847
F.3d at 347; see also United States v. Canan, 48
F.3d 954, 959 (6th Cir. 1995) (finding ongoing drug
trafficking activity at the defendant's house four years
prior to issuance and execution of the search warrant was
sufficient to defeat claim of staleness). Second, the
affidavit established that Oliver was not nomadic. Contrary
to Oliver's assertion that the affidavit contains only
one allegation of criminal activity at his home, the
Mansfield Police received eight separate tips that Oliver was
selling drugs from, and resided at, 119
Boughton.At least five of these tips came from known
and reliable sources. These tips span nearly four years from
July 8, 2013 to April 13, 2017. Thus, the information in the
warrant affidavit indicated that Oliver lived at 119 Boughton
for at least four years prior to the search. Regarding the
last two staleness factors, although drugs are easily
consumable and ...