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United States v. Hill

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

July 16, 2018

United States of America, Plaintiff
Gary Hill, Sr., Defendants




         Defendant Gary Hill, Sr., seeks to suppress evidence obtained through electronic surveillance of cell phones subscribed to by one of Hill's co-defendants, (Doc. No. 222), as well as statements Hill made to agents from the Federal Bureau of investigation following his arrest on February 9, 2017. (Doc. No. 275). The government opposes both motions. (Doc. No. 285). On July 5, 2018, the parties offered oral argument as to both motions, and presented testimony concerning the interactions between Hill and FBI Special Agent Kyle Fulmer on February 9, 2017. For the reasons stated below, I deny both of Hill's motions.


         In 2012, FBI agents located in Ohio and Michigan began investigating the purchase and sale of heroin and cocaine in Northwest Ohio and Southeast Michigan. This investigation involved a variety of surveillance and other evidence-gathering techniques, leading up to wiretaps on phone lines associated with certain cell phones subscribed to and possessed by Larry Stewart, one of Hill's co-defendants in this case, which were implemented pursuant to several Title III wiretap applications approved by United States District Court Judge Jack Zouhary in 2016.

         On January 30, 2017, FBI agents executed a search warrant at Hill's residence in Lathrup Village, Michigan. Hill waived his Miranda rights and answered questions posed by an agent from the Detroit FBI field office who was participating in the execution of the search warrant. Hill agreed to consider that agent's request that Hill cooperate with the investigation, but ultimately decided he would not follow up with the agent.

         On February 7, 2017, Hill and two co-defendants were indicted on one count of conspiracy to distribute controlled substances, though a grand jury subsequently returned a superseding indictment consisting of 75 counts and naming 22 defendants. (See Doc. No. 17). Hill was arrested on February 9, 2017, in Detroit, Michigan. FBI agents transported him to the Southfield, Michigan police department, where he was interviewed a second time. Hill again provided a statement to the agents after waiving his Miranda rights.


         A. Motion to Suppress Title III Interceptions

         Hill moves to suppress evidence obtained pursuant to the wiretaps authorized by Judge Zouhary under Title III. In particular, he argues the affidavit provided by Agent Fulmer in support of the November 15, 2016 wiretap application fails to establish the necessity of a wiretap because the affidavit omitted certain information, overstated other information, and failed to sufficiently explain why more conventional investigatory techniques were not pursued. (Doc. No. 222). Hill also seeks an evidentiary hearing on this issue.

         1. Franks Hearing

         As I stated during the July 5 hearing, Hill's assertions do not satisfy the high burden he is required to meet in order to establish his entitlement to an evidentiary hearing. A defendant is not entitled to an evidentiary hearing in connection with the defendant's challenge to a search warrant affidavit unless the defendant “1) makes a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement or material omission in the affidavit; and 2) proves that the false statement or material omission is necessary to the probable cause finding in the affidavit.” United States v. Young, 847 F.3d 328, 348-49 (6th Cir. 2017) (quoting United States v. Pirosko, 787 F.3d 359, 369 (6th Cir. 2015)).

         The Sixth Circuit has “repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement.” United States v. Speer, 419 Fed.Appx. 562, 571 (6th Cir.2011) (quoting United States v. Fowler, 535 F.3d 408, 415 (6th Cir.2008)); see also Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (“except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and the omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts.” (emphasis in original)).

         Hill argues Agent Fulmer's affidavit omitted information previously obtained during the investigation and which was contained in an affidavit submitted with a wiretap application filed in the Eastern District of Michigan in December 2016. Hill, however, does not explain how the omitted information, even if I were to assume it is material, would have had any impact on Judge Zouhary's probable cause finding. Hill does not contend the information is exculpatory - in fact, the omitted ...

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