United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Motion to Suppress Title III Interceptions
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.
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)).
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)).
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 ...