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United States v. Thompson

United States District Court, N.D. Ohio

May 24, 2018

TERRICK THOMPSON et al., Defendants.

          OPINION & ORDER [RESOLVING DOCS. 26, 29, 31, 45, 47, 48]


         Defendants Terrick Thompson, Rica Jones, and Edwin Dortch move to suppress evidence collected during a search of Thompson's home.[1] Defendants also request a Franks hearing on the grounds that the affidavit supporting the search warrant contained false or misleading information.

         For the reasons stated below, the Court DENIES Defendants' motion to suppress and DENIES Defendants' request for a Franks hearing.

         I. BACKGROUND

         In considering Defendants' motions to suppress and motions asking for a Franks hearing, the Court focuses on whether a search warrant affidavit showed probable cause to search an Akron residence. That search warrant affidavit described a controlled substance sale by a Defendant who directly went from the searched premises to the drug sale.

         On February 14, 2018, Detective Mike Schmidt sought a search warrant for 450 West Bartges Street.[2] The warrant specifically asked for the seizure of marijuana, firearms, currency, records, documents, and measuring and processing devices related to drug trafficking.[3] An Akron Municipal Court judge approved the warrant and police executed the warrant on February 16, 2018.[4]

         At the search, Police found and seized “significant quantities of [m]ethamphetamine, fentanyl, heroin and carfentanil, approximately $9, 000.00 [in] cash, three handguns, ammunition, and several drug processing items.”[5]

         Akron Police Detective Schmidt gave an affidavit in support of the search warrant. In his affidavit, Detective Schmidt stated that he met with a confidential informant within seven days of seeking the search warrant and worked with the informant for a structured drug purchase.[6]

         According to the affidavit, the informant arranged to meet with Defendant Edwin Dortch at a predetermined location for the marijuana purchase.[7] In preparation for the controlled drug purchase, Detective Schmidt provided the informant with marked police department funds.[8] After the informant set up the drug purchase with Dortch, the affidavit states that a Detective Brown observed Defendant Dortch leave 450 West Bartges Street for the prearranged site for the drug sale.[9] Before the sale, Detective Schmidt searched the informant to insure that the informant had no controlled substances.[10]Detective Schmidt then observed the informant meet with Dortch.[11] Immediately after, Detective Schmidt met with the informant and recovered the marijuana that the informant had purchased from Dortch.[12]

         Also within the seven days preceding the application for a search warrant, the affidavit states that Dortch spoke to the same confidential informant and that confidential informant described drug activity at 450 West Bartges Street.[13] According to the affidavit, the informant told Detective Schmidt that the informant had spoken to Dortch, who told the informant that he had marijuana for sale.[14]The affidavit also states that the informant told Schmidt that Defendants Terrick Thompson and Rica Jones were involved in the sale of illegal narcotics from the residence.[15]

         In vouching for the informant's reliability, the affidavit then states that the informant “has [previously] provided the Affiant with information concerning the possession and sale of controlled substances in the Akron, Summit County, Ohio area” and that Detective Schmidt was able to corroborate the information that the informant earlier provided.[16] The affidavit also stated that the informant “has displayed … specific knowledge as to the uses, effects and distribution patterns of controlled substances in the Akron, Summit County, Ohio area.”[17]

         The affidavit also describes earlier narcotics-related activities at 450 West Bartges Street. According to the affidavit, in 2015, Defendant Thompson was arrested when a search of the Bartges Street premises uncovered a .380 caliber handgun under a living room couch, digital scales, drug packaging bags, and $6, 710 in cash.[18] The Schmidt affidavit also stated that, following a January 2018 Akron Police visit to the residence for an unrelated matter, a police report listed Thompson's address as 450 West Bartges Street.[19]

         Moreover, the affidavit describes a number of connections between the occupants of 450 West Bartges Street and illicit narcotics activities. The affidavit stated that in 2017, Defendant Thompson pled guilty to aggravated possession of drugs.[20] The affidavit also said that, in January 2018, Kevin Cook, a “known large scale drug dealer” who had previous arrests for drug trafficking and possession, was at the Bartges Street residence.[21] Finally, the affidavit said that a vehicle registered to Joseph Sheffield, who has previous arrests for aggravated trafficking, was parked at the residence “on several occasions, ” including on the day that Detective Schmidt filed his affidavit.[22]

         Defendants challenge the search warrant with the argument that it is not supported by probable cause.[23] Specifically, Defendants argue that probable cause is lacking because Schmidt's affidavit relies on a confidential informant whose credibility was not established.[24] Defendants also argue that the affidavit does not show a sufficient nexus between Dortch's alleged drug dealing and 450 West Bartges Street.[25]

         Defendants also request a Franks hearing.[26] They argue that the affidavit falsely identified Jones and Dortch as occupants of the residence and that the approving magistrate would not have found probable cause had the affidavit not misidentified them as occupants.


         A. Motion to Suppress

         1. Legal Standard

         The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched . . . .”[27]Probable cause for a search warrant exists if “there is a fair probability that contraband or evidence of a crime will be found in a particular place.”[28] The reviewing judicial magistrate “is simply to make a practical, common-sense decision” whether all the facts and circumstances set forth in the supporting affidavit warrant “a reasonably prudent person” to believe that a crime has occurred and the place to be searched contained evidence thereof.[29]

         The issuing magistrate should read the affidavit “not hypertechnically, but in a common sense fashion.”[30] Where a magistrate judge has a “substantial basis” for concluding that a search would Gwin, J. uncover evidence of wrongdoing, his decision will stand unless a reviewing court finds that he “arbitrarily exercised” his powers of determination.[31]

         Even if a search warrant does not contain probable cause for a search, the Fourth Amendment's exclusionary rule allows the “admission of evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held to be defective.”[32]

         2. Probable Cause

         The affidavit in this case gave sufficient facts for the magistrate to find probable cause to search Thompson's home. The information received from the confidential informant, as well as the police's direct observation of Dortch's activities, establish probable cause to support the 450 West Bartges Street search. Moreover, even if the affidavit did not provide sufficient facts to establish probable cause, officers' good faith reliance on it was reasonable.

         First, police received information from a confidential informant that Thompson and Jones were involved in the sale of illegal narcotics from 450 West Bartges Street.[33] Courts look at a totality of the circumstances, including a confidential informant's “veracity, reliability, and basis of knowledge, ” to determine whether a tip to police establishes probable cause to search.[34] A tip from a known informant of proven reliability may form the basis for probable cause, especially when police independently corroborate details of the tip.[35]

         The Sixth Circuit has held that successful past informant assistance helps establish a source's reliability and that “[t]he affidavit need not include a detailed factual basis for [the affiant's] statement in order to support the judge's finding of probable cause.”[36] However, “where an affidavit substantially relies on hearsay statements provided by a confidential informant, probable cause for a warrant to issue depends on whether the reliability of the informant or sufficient independent police corroboration of the informant's statements can be found within the four corners of the affidavit.”[37]

         The Schmidt affidavit stated that the confidential informant had previously provided Detective Schmidt with “information concerning the possession and sale of controlled substances in the Akron, Summit County, Ohio area, ” information that the affiant independently corroborated.[38] The confidential informant's reliability is further enhanced by the Detective Schmidt's independent corroboration of much of the information that the confidential informant provided in this case.

         The informant told Detective Schmidt that Defendant Dortch offered that he had marijuana for sale, [39] and the informant successfully bought marijuana from Dortch in a controlled sale that was monitored by the Detective Schmidt.[40]

         The informant also apparently identified Thompson as an occupant of 450 West Bartges Street, [41] and the officer independently verified this information by reviewing a recent Akron Police call at the residence that occurred one month before the warrant request.[42]

         Given the informant's historical track record, given the informant's track record in this case, and given Detective Schmidt's independent corroboration of much of the informant information, the issuing judge had a substantial basis for finding that there was a fair probability that the police would find evidence of narcotics sales activity at 450 West Bartges Street.

         Second, the events surrounding the controlled narcotics buy also establish probable cause to search 450 West Bartges Street.

         In order to establish probable cause to search a location, “[t]here must be … be a nexus between the place to be searched and the evidence sought.”[43]

         Thompson argues[44] that Dortch was not an “occupant” of the Bartges Street premises. The American Heritage Dictionary defines “occupant” as “One that resides in or uses a physical space.”[45]And the New Oxford American Dictionary defines “occupant” as “a person who resides or is present in a house . . . at a given time.”[46] So, based on the ordinary meaning of the word “occupant, ” Detective Schmidt's description of Dortch's affiliation with the Bartges Street premises was accurate- even if he did not live there.

         The affidavit states that a detective observed Dortch leave 450 West Bartges Street on his way to a controlled drug buy.[47] Another detective confirmed that Dortch arrived to the controlled drug buy shortly after leaving the Bartges Street address and sold drugs to a confidential informant.[48] In United States v. Jones, the Sixth Circuit found that similar circumstances established a nexus to the residence sufficient to support a finding of probable cause, stating, “What matters is … that [the defendant] left [the residence] and drove straight to a drug deal in which he was the seller.”[49]

         Nor did Dortch leave just any residence. The issuing judge could also have considered that 450 West Bartges Street had previous connections to narcotics-related activities. The residence had been searched in 2015, when police recovered a handgun, digital scales, drug packaging bags and $6, 710.00 in cash.[50] Thompson was a resident of 450 West Bartges Street at the time of the 2015 search ...

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