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United States v. McCrary

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

July 25, 2018

United States of America, Plaintiff,
Seandelle McCrary, Defendant.



         This 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.

         I. BACKGROUND

         Defendant 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.)

         Only 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.)

         On 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.)

         On June 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.[1] 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 controlled buy.[2]


         A. Probable Cause to Support a Warrant

         In 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)).

         An 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. 17-1598).

         Probable 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).

         Probable 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. 2000).

         Gates 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)).

         B. Good-Faith Exception to Exclusionary Rule

         “When 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).

         C. Photo Identification

         Introducing 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 Biggers.)

         III. ANALYSIS

         Defendant 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.

         A. ...

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