United States v. Grant

448 F.Supp.3d 787

UNITED STATES of America Plaintiff,

v.Marlon D. GRANT, Defendant.

Case No. 3:19-cr-403

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

Filed: March 24, 2020

As Amended March 26, 2020

Alissa M. Sterling, Ashley A. Futrell, Office of the U.S. Attorney-Toledo Northern District of Ohio, Toledo, OH, for Plaintiff.

Derek A. Farmer, Gahanna, OH, Donna M. Grill, Office of the Federal Public Defender, Toledo, OH, for Defendant.

AMENDED ORDER

James G. Carr Sr., U.S. District Judge

This is a criminal case in which the grand jury indicted the defendant Marlon D. Grant, and two codefendants with drug offenses. Pending is his motion to suppress six search warrants issued seriatim (Doc. 20) which the government opposes. (Doc. 21).

Sandusky Police Department Detective Ronald Brotherton obtained all six seriatim warrants on the same day, March 2, 2019. (Doc. 21, Exh. 1-6). The first four were for 501 Tiffin Avenue, Sandusky, where Grant rented a store front and a rear apartment. (Doc. 21, Exh. 1-4). The last two were for Grant's residence, which also had a store, at 1001 Monroe St., Sandusky, Ohio. (Doc. 21, Exh. 5, 6).¹

After Det. Bretherton obtained the first warrant, officers began its execution. Det. Bretherton returned from time to time to the Municipal Court for the other five warrants.

The affidavits for the first four warrants were duplicates. The affidavits for the last two repeated the contents of the first four affidavits. They also stated that officers had: 1) found crack, suspected crack cocaine, marijuana, and firearms at 501 Tiffin; and 2) located Grant at 1001 Monroe and arrested him.

The defendant argues that the affidavits for all six warrants lack probable cause and are overbroad. The government disputes these contentions and argues that, in any event, the good faith exception applies.

For the reasons that follow, I find that there was probable cause for each of the warrants and that they were not overbroad. Had I found otherwise as to either, I would have applied the good faith exception.

Accordingly, I overrule the motions to suppress.

Background

The duplicative affidavits that Det. Bretherton presented as to the first four warrants related principally to a confidential source CS 1's controlled buy of crack cocaine from Grant.

Detective Bretherton began his narrative of those events by stating that: 1) around the end of May or early June, 2018, Task Force Officer DEA Agent/SPD Officer Adam West had learned that Grant was supplying large amounts of cocaine in Sandusky. Next, on February 1, 2019, CS 1 had told officers that he could get fourteen grams of crack cocaine from Grant.

On March 20th, officers fitted CS 1 with a concealed recording unit. CS 1 called Grant on his cell phone; they had a drug-related conversation. Thereafter, officers gave CS 1 $700 buy-money. In the meantime, officers saw Grant leave his residence at 1001 Monroe St., Sandusky and go to 501 Tiffin Avenue.

Grant and CS 1 had a further phone call, in which Grant told CS 1 that crack cocaine was in a potato chip bag on the informant's front steps. The informant retrieved the bag and gave it to the officers, along with the $700 buy-money they had given him - Grant had agreed during a phone call to get back with CS 1. (Doc. 20, Exh. 1 ¶¶ 5-21, PageID 225).

The next day, March 21, 2019, again while wired, CS 1 went to Grant's residence at 1001 Monroe St. Grant was not there. CS 1 called Grant, who told him to put the $700 (which officers, presumably, had given back to CS 1) in the console of his van (a white Ford Windstar). CS 1 did so.

Officers surveilled Grant driving a BMW to 1001 Monroe St. He parked, got into the passenger side of the Windstar, then got out and got into and out of a white Buick Park Avenue (registered, like the BMW and Windstar, to Grant). Grant drove to and parked the Windstar at 501 Tiffin Avenue.

CS 1 spoke with Grant, who told him he had gotten the buy-money. (Id., ¶¶ 22-34).

Detective Brotherton's affidavit stated that he and a fellow officer had seen Grant "numerous" times drive to 501 Tiffin Ave., park in the rear, enter the building, and leave shortly thereafter. This sort of behavior, according to the affiant, "is indicative of narcotics traffickers," who often use "secondary locations," [in common parlance, a "stash house"] like Grant's "to store and protect their products." (Id., ¶¶ 25-37, PageID 226).

On checking with the owner of 501 Tiffin Avenue, the affiant learned that Grant rented the front store and rear apartment. (Id. ¶ 38, PageID 226). Grant had a conviction for attempted trafficking in 2000 and a domestic violence charge reduced to a lesser offense. (Id., ¶ 38, PageID 226).

Based on Det. Bretherton's training and experience, the affidavit lists items that drug dealers commonly use and keep at locations such as 501 Tiffin Avenue. (Id., ¶¶ 39-59, PageID 227-29). The warrant did not incorporate that list in toto. See Doc 21, Exhs. 1, 2, pp. 1-2; Exhs. 3, 4, pg. 1).²

In support of the last two search warrants – for 1001½ Monroe St., Det. Bretherton's affidavits, as noted, duplicated the affidavits for 501 Tiffin. They added facts they learned while executing searches at 501 Tiffin.

The affidavit stated that officers had located Grant at the Monroe St. premises. They arrested him for possession of firearms and drugs they had found at 501 Tiffin. He admitted the guns were his.

The officers asked him if he had weapons, drugs, or U.S. currency. He admitted having "a few" dollars. He showed them where the currency was; it amounted to $6,000. He was searched incident to his arrest. (Id. , Exh. 5, ¶ 42, PageID 179).

There followed the same list of items that Det. Bretherton had stated in the earlier affidavits were those, on the basis of his training and experience and drug investigation, that drug dealers commonly used and kept. (Id., ¶ 44, PageID 179).

The two Monroe St. warrants repeated the condensed version from the third and fourth Tiffin Avenue warrants of that list in their authorization of the things for which the officers could conduct their searches and seizures. See Doc. 21, Exh. 5, 6, pg. 1.

Discussion

1. Probable Cause

In determining whether an affidavit for a search warrant provides probable cause sufficient to justify the warrant's issuance, I do not engage in de novo review. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). I am, rather, to give deference to the issuing judge's probable cause finding. Id. My duty in review is to ensure that the issuing magistrate had a substantial basis for concluding that probable cause existed. Id.

Applying these factors, I have no hesitation in concluding that the affidavits showed probable cause that Grant was a drug dealer: the CS's controlled buys are direct evidence to that effect.

As did the defendant's evasive avoidance of direct hand-to-hand dealing. His clever use of his Windstar, as if it were a spy's "dead drop" or "dead letter box," did not, however, successfully conceal what was going on. It was also apparent that he was no dime-bag dealer: officers had seen him driving three different cars, all registered in his name, and none that seemed Craigslist cheap.

In addition to probable cause as to Grant's activities, the affidavits also provided probable cause as to both premises. Just as 501 Tiffin was likely to hold drugs, firearms, and related paraphernalia, the same was true with regard to 1001½ Monroe. As to those premises, this was particularly true for items not needed for "retail sales" of drugs from Tiffin Avenue, such as books and records, whether kept on paper or digitally; related documents, such as leases, bills, and receipts for both locations and evidence of receipt of incoming drug shipments, such as mailing- or shipping-related articles and wrappers; general supplies, such as baggies or other storage containers; and other implements, such as scales, and "tools of the trade," such as firearms.

I conclude, accordingly, that the affidavits, though far from models of clarity, do show probable cause both as to the defendant's drug-related crimes and the premises, the search of which the warrant authorized.

2. Particularization

The Fourth Amendment requires that warrants particularly describ[e] ... the things to be seized." Among the Amendment's purposes was to curtail open-ended, free-wheeling searches under the authority of general warrants. E.g., Stanford v. State of Tex. , 379 U.S. 476, 480, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

At issue here is whether a warrant meets this mandate where it is a veritable shopping list of just about everything a drug detective might want to find on the shelves or the counters, or in the cupboards and closets, and other places, open or concealed, where a drug dealer operates, keeps inventory and tools of the trade, and has paper or digital ledgers.

Though that list is very broad and depends on general truths about drug dealers and their habits, rather than first- or even second- or third-hand direct knowledge, courts in our Circuit have upheld, to use their terms, warrants with a "laundry list" of the things to be seized.

In one of these cases, United States v. Hollis , 2017 WL 1382921 (W.D.Ky., 2017) (Russell, J.), the court applied an analytical template that I adopt:

The degree of specificity required in a warrant varies depending on: (1) what information is reasonably available to the authorities, United States v. Hanna , 661 F.3d 271, 286–87 (6th Cir. 2011), (2) the nature of the "crime involved," as well as (3) the "types of items sought." United States v. Richards , 659 F.3d 527, 537 (6th Cir. 2011) (quoting United States v. Greene , 250 F.3d 471, 477 (6th Cir. 2001) ).

Id. at *5.

In that case, the court observed, as I can here with regard to the Tiffin Avenue location, that the "officers suspected, on good authority, that [the defendant] was using the [premises] as a ‘stash house’ for drugs, firearms, and cash." Id. Here, too, as there, the "agents had no idea how ...