United States v. Mills

357 F.Supp.3d 634

UNITED STATES of America, Plaintiff,

v.Edwin MILLS, et al., Defendants.

Case No. 16-cr-20460

United States District Court, E.D. Michigan, Southern Division.

Signed January 16, 2019

Louis Crisostomo, Linda Aouate, United States Attorney's Office, Aldous Brant Cook, U.S. Department of Justice, Detroit, MI, for Plaintiff.

Gerald J. Gleeson, II, Miller Canfield Paddock & Stone, PLC, Troy, MI, Jean deSales Barrett, Ruhnke & Barrett, Montclair, NJ, Federal Defender, Federal Defender Office, Michael A. Rataj, Sanford A. Schulman, Christopher W. Quinn, II, Detroit, MI, Jacqueline K. Walsh, Walsh & Larranaga, Seattle, WA, Judith S. Gracey, The Gracey Law Firm, Keego Harbor, MI, Richard H. Morgan, Jr., Law Office of Richard H. Morgan Jr., Pontiac, MI, Avraham C. Moskowitz, Moskowitz, Book and Walsh, LLP, New York, NY, Stephen T. Rabaut, Clinton Township, MI, Michael O. Sheehan, Sheehan and Reeve, New Haven, CT, Sanford Plotkin, Sanford Plotkin, P.C., Ann Arbor, MI, James A. Waske, Vincent J. Toussaint, Toussaint Law, Southfield, MI, John M. McManus, McManus Law, Royal Oak, MI, for Defendants.

OPINION & ORDER DENYING DEFENDANT ROBERT BAYTOPS'S MOTION TO SUPPRESS EVIDENCE (Dkt. 589)

MARK A. GOLDSMITH, United States District Judge

This matter is before the Court on Defendant Robert Baytops's motion to suppress all of the physical evidence seized during the execution of a search warrant at 15269 Troester Street in Detroit, Michigan (Dkt. 589). The Government has filed a response in opposition to the motion (Dkt. 625).¹ For the reasons discussed below, the Court denies the motion.

I. BACKGROUND

A federal grand jury returned a second superseding indictment on February 28, 2018, charging the eleven defendants in this case with various crimes, including violations of the Racketeering Influenced and Corrupt Organizations Act (the "RICO" Act), 18 U.S.C. § 1961 etseq. See generally 2d Superseding Indictment (Dkt. 292). That indictment claims that Defendants were members and associates of a criminal enterprise—the "6 Mile Chedda Grove" street gang in Detroit—one of whose purposes was to "preserv[e] and protect[ ] the power, territory, reputation, and profits of the enterprise through murder, robberies, intimidation, violence, and threats of violence." Id. at 2, 6. The enterprise purportedly operated on the east side of Detroit within an area bordered roughly by East McNichols Road to the north, Kelly Road to the east, Houston-Whittier Street to the south, and Chalmers Street to the west. Id. at 2.²

The indictment further alleges that the enterprise's profits derived primarily from the sale and distribution of controlled substances, including crack cocaine, heroin, and morphine. Id. at 5. The sale and distribution alleged was not limited to Michigan; gang members and associates purportedly sold and distributed controlled substances in Ohio, Kentucky, Tennessee, Alabama, and West Virginia. Id.

Five of the eleven defendants have since pleaded guilty.³ The six remaining defendants have been separated into two groups with separate trial dates. See 8/7/2018 Order (Dkt. 425). Group One, composed of four defendants who are not subject to the death penalty upon conviction, has a trial date of April 23, 2019. See Group One Scheduling Order (Dkt. 464); 9/21/2018 Status Conference (finalizing Group One trial date). Group Two, composed of two defendants who are death-penalty eligible, has a trial date of April 21, 2020. See Group Two Scheduling Order (Dkt. 475). Defendant Robert Baytops belongs to Group One and has been charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d).

As part of the federal investigation into the 6 Mile Chedda Grove gang, law enforcement officials interviewed a confidential informant, referred to as Cooperator 3 in FBI Special Agent Lance Welker's affidavit in support of a search warrant, on October 19, 2016. Ex. 1 to Def. Mot., Aff. at 2-3, 16 (Dkt. 589-1). Cooperator 3 is a member of the 6 Mile Chedda Grove gang and has been affiliated with members of the gang for several years. Id. at 2, 10, 16. Cooperator 3 informed the officials that Defendant Michael Richardson is also a member of the gang and was residing and conducting narcotics trafficking at 15269 Troester Street on behalf of other gang members, including Defendant Donell Thompson. Id. at 3, 5, 16. Cooperator 3 described the residence as "a red brick house on Troester, between Brock and Hayes," that was equipped with security cameras visible from the street. Id. at 3, 17. According to Cooperator 3, a blue Chrysler Pacifica is usually parked outside the house and is used by Richardson. Id. at 3, 17. Cooperator 3 further stated that he had been previously been inside the house with Richardson. Id. at 17.

On October 21, 2016, after he was released from jail, Cooperator 3 called one of the law enforcement officials and stated that both Richardson and the inside of 15269 Troester Street appear in a YouTube video entitled "Team Eastside Peezy – I'm Good pt. 3" Id. ⁴ According to Cooperator 3, Richardson is visible in the video for a few seconds blowing smoke. Id. The affiant viewed the video, which had a published date of September 26, 2016, and he believed a black male with long hair and a beard depicted thirteen seconds into the video had physical features consistent with law enforcement database pictures of Richardson. Id.

Another confidential informant, referred to as Confidential Human Source 1 ("CHS-1"), indicated that he or she is affiliated with several members of the 6 Mile Chedda Grove gang, and that Richardson is a member the gang and was residing and conducting narcotics trafficking at 15269 Troester Street on behalf of other gang members, including Baytops. Id. at 3, 5. Like Cooperator 3, CHS-1 also stated that a blue Chrysler Pacifica is usually parked at the house. Id. at 3.

Following their interview with Cooperator 3, law enforcement officials conducted physical surveillance of 15269 Troester Street on October 20 and 21, 2016. The officials observed security cameras mounted on the exterior of the house. Id. at 4, 19-20. They also witnessed a blue Chrysler Pacifica parked in front of the house on both days. Id. at 4, 19-20. Late in the morning on October 20, officials observed the blue Chrysler Pacifica, which had previously been parked in front of 15269 Troester Street, moving in the vicinity of the house, and later backing in and out of the driveway of 14711 Cedargrove, which was located less than a mile from 15269 Troester Street. Id. at 4, 19-20.⁵ While the van was parked in front of 14711 Cedargrove, the officials observed several suspected hand-to-hand drug transactions involving the driver of the van. Id. at 4, 20. In the afternoon on October 21, officials again observed the same blue Chrysler Pacifica pulling out of the driveway directly east of 15269 Troester Street. Id. at 4-5, 20. The van was subsequently found parked at 14711 Cedargrove, and it was later observed pulling out of the driveway and meeting a black Chevrolet Impala to perform a suspected hand-to-hand drug transaction. Id. at 5, 20.

Law enforcement officials thereafter sought a warrant on October 25, 2016, to search 15269 Troester Street and seize, among other things, evidence of narcotics and firearms. See Ex. 1 to Def. Mot., Warrant at PageID.3392 (Dkt. 589-1); Ex. 1 to Def. Mot., Items to be Seized at PageID.3394-3395 (Dkt. 589-1). The magistrate issued the search warrant that same day. See Warrant at PageID.3392.

A search was then conducted on October 26, 2016, during which officials seized numerous items, including a .45 caliber pistol, small plastic bags of suspected heroin amounting to 37.7 grams, a black plastic container of suspected marijuana weighing 71.2 grams, a plastic bag of suspected heroin weighing 90.1 grams, a Remington Model 870 twelve gauge shotgun, an ID card and Bridge card with Baytops's name, proof of residency for Richardson, several cell phones, a Glock Model 30 .45 caliber pistol, and over $ 9,000 in U.S. currency. See Gov't Resp. at 4. Richardson and Baytops were present in the house when the search warrant was executed, and they were both arrested. Id.

Baytops now seeks to suppress the physical evidence seized during the execution of the search warrant.

II. DISCUSSION

In his motion to suppress, Baytops argues that he has standing⁶ to contest the search of 15269 Troester Street, that the search warrant was not supported by probable cause, and that the good-faith exception to the Fourth Amendment's exclusionary rule does not apply. The Court addresses and rejects each argument in turn.

A. No Legitimate Expectation of Privacy

The Fourth Amendment to the U.S. Constitution guarantees people the right "to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. As the Supreme Court has repeatedly emphasized, this Amendment "protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; see also Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed."). Thus, a person contending that a search violated his or her Fourth Amendment rights must first demonstrate that he or she had a legitimate expectation of privacy in the premises searched that "society is prepared to recognize as reasonable." Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) ; see also Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ("[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable."); Katz, 389 U.S. at 361, 88 S.Ct. 507 (a person has a legitimate expectation of...