United States District Court, S.D. Ohio, Western Division
ORDER DENYING MOTION TO SUPPRESS
J. DLOTT, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Seandelle
McCrary's Motion to Suppress evidence seized from the
search of his residence, 2525 Victory Parkway #522,
Cincinnati, Ohio, 45206, and a confidential informant's
identification of him. (Doc. 28.) The Government filed a
response in opposition to the Motion (Doc. 33), and the Court
held oral argument and an evidentiary hearing on June 26,
2018. For the reasons that follow, Defendant's Motion
will be DENIED.
is no stranger to this Court. In 2016, in a separate criminal
action pending before the Undersigned, McCrary was indicted
in the Southern District of Ohio on charges of distributing a
controlled substance and being a felon in possession of a
firearm and ammunition. United States v. McCrary,
No. 1:16-cv-91 (S.D. Ohio). McCrary entered into a Plea
Agreement with the Government, but at his sentencing hearing
on October 20, 2017, the Court made an exception to its
standard practice and held sentencing in abeyance to allow
him to complete an educational program. (See
1:16-cv-91, Doc. 48.)
two months later, on December 21, 2017, McCrary allegedly
sold a controlled substance to a confidential informant
(“CI”), the details of which are outlined below.
That same day, the CI identified McCrary based upon a single
photo presented to him by an officer. Two months later, on
February 14, 2018, agents executed a search warrant at
McCrary's apartment and seized the following items
purportedly used in commission of the December drug
trafficking: a pair of black jeans with zippers, a Louis
Vuitton hat, a bullet proof vest, a plastic bag, and a black
sweatshirt with a gold design. (Doc. 28-2 at PageID 86-87.)
February 21, 2018, McCrary was indicted again in the Southern
District of Ohio on new charges of distributing a controlled
substance and distributing a controlled substance within 1,
000 feet of a school. (Doc. 1.) He faces penalty enhancements
because he was on court-ordered release from custody pending
resolution of his prior case, No. 1:16-cr-91. On April 30,
2018, the Defendant filed the Motion to Suppress which is now
before the Court. (Doc. 28.)
26, 2018, the Court held an evidentiary hearing on the Motion
to Suppress on the issue of the CI's pretrial
identification of the Defendant. At the hearing, the
Government called Cincinnati Police Department Investigator
Officer Carl Beebe and admitted the following four Exhibits
into evidence: (1) the CI's buy activity log as outlined
by Beebe; (2) a photograph of the Defendant; (3) a video
taken by the CI of his activity during the controlled buy;
and (4) a city camera video of the time frame of the
STANDARD OF LAW
Probable Cause to Support a Warrant
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)).
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. “[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). 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). “An affidavit sufficiently supports a warrant so
long as it provides probable cause to believe evidence of any
crime will be found in the location to be searched, even if
it does not provide probable cause to believe that evidence
of the particular crimes listed in the affidavit will be
found in the location to be searched.” Peffer v.
Stephens, 880 F.3d 256, 264 n.3 (6th Cir. Jan. 17,
2018), rehearing en banc denied (Feb. 22, 2018),
cert. petition docketed, (U.S. May 23, 2018) (No.
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).
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 Fla. 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). And 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.
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 also 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)).
Good-Faith Exception to Exclusionary Rule
evidence is obtained in violation of the Fourth Amendment,
the judicially developed exclusionary rule usually precludes
its use in a criminal proceeding against the victim of the
illegal search and seizure.” Ill. v. Krull,
480 U.S. 340, 347 (1987). But a court typically should
not suppress “evidence obtained in objectively
reasonable reliance on a subsequently invalidated search
warrant.” United States v. Leon, 468 U.S. 897,
922 (1984). The four specific situations in which an
officer's reliance cannot be considered
“objectively reasonable” are: (1) when the
warrant is issued on the basis of an affidavit that an
affiant knows-or is reckless in not knowing-contains false
information; (2) when the issuing magistrate abandons his or
her neutral and detached role and serves as a rubber stamp
for police activities; (3) when the affidavit is so lacking
in indicia of probable cause that a belief in its existence
is objectively unreasonable; and (4) when the warrant is so
facially deficient that it cannot reasonably be presumed to
be valid. United States v. Laughton, 409 F.3d 744,
748 (6th Cir. 2005) (citing Leon).
a pretrial identification that is “so impermissibly
suggestive as to give rise to a very substantial likelihood
of irreparable misidentification” violates a
defendant's due process rights. Mills v. Cason,
572 F.3d 246, 251 (6th Cir. 2009) (citing Thigpen v.
Cory, 804 F.2d 893, 895 (6th Cir. 1986)). “To
determine whether an allegedly suggestive pre-trial
identification casts an impermissible taint on a later
in-court identification, the Court utilizes a two-step
evaluation.” Id. (citing Ledbetter v.
Edwards, 35 F.3d 1062, 1070-71 (6th Cir. 1994)). First,
a court must determine whether the procedure was unduly
suggestive. Id. (citing Ledbetter.)
Identifications based on single-photograph displays, like the
one challenged here, generally merit moving to the second
step of the analysis. Erkins v. Chuvalas, 684
Fed.Appx. 493, 497 (6th Cir. 2017) (citing Manson v.
Brathwaite, 42 U.S. 98, 116 (1977)). Step two of the
analysis requires consideration of the five factors set forth
in Neil v. Biggers to evaluate “the totality
of the circumstances to determine whether the identification
was nevertheless reliable.” Mills, 573 F.3d at
251 (citing Ledbetter and Biggers, 409 U.S.
188, 199 (1972)). The Biggers factors are: (1) the
opportunity of the witness to view the criminal at the time
of the crime; (2) the witness's degree of attention; (3)
the accuracy of the witness's prior description of the
criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time
between the crime and the confrontation. Id. (citing
moves to suppress the items seized at the search of his
residence as well as the CI's pretrial identification of
him based upon a single photograph. The Court will analyze
these distinct legal issues separately. As to the former
issue, the Court will conclude that the application for the
search warrant of Defendant's residence was supported by
probable cause, and even if it was not, the good faith
exception would save the warrant. As to the latter, the Court
will conclude that the pretrial identification of the
Defendant is reliable.