United States v. Ombisi

1

UNITED STATES OF AMERICA, Plaintiff, v. KEVIN OLANDO OMBISI, and ERIC BERNARD RUSSELL, JR., a/k/a “Yo yo,” a/k/a, “Big Bro,” Defendants.

No. 2:21-cr-20011-MSN-cgc

United States District Court, W.D. Tennessee, Western Division

August 26, 2022

ORDER ADOPTING REPORT AND RECOMMENDATION

MARK S. NORRIS UNITED STATES DISTRICT JUDGE

Before the Court is Magistrate Judge Charmaine G. Claxton's Report and Recommendation (“Report”), entered April 22, 2022. (ECF No. 131.) The Report recommends that Defendant Eric B. Russell, Jr.'s (“Russell”) Motion to Suppress Evidence Obtained Pursuant to Search Warrants for E911 Pings / Geolocation Data, (ECF No. 87) (“Motion”), be denied. Russell filed two legal objections to the Report on April 5, 2022. (ECF No. 135.) For the reasons set forth below, the Report is ADOPTED, and the Motion is DENIED.

STANDARD OF REVIEW

Under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal Procedure 59, a district court may refer a motion to suppress to a magistrate judge for the preparation of a report and recommendation. “The magistrate judge must promptly conduct the required proceedings and enter on the record a recommendation for disposing of the matter, including any proposed findings of fact.” Fed. R. Crim. P. 59(b)(1). Should a party file timely objections to the recommendation the district court must consider those objections de novo and “accept, reject, or modify the recommendation.” Fed. R. Crim. P. 59(b)(3). Failure to object to a magistrate judge's findings or conclusions results in waiver of those objections. Fed. R. Crim. P 59(b)(2).

“The filing of objections to a magistrate [judge]'s report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S 140, 147 (1985). Therefore, objections to a magistrate judge's report must be “specific.” Fed. R. Crim. P. 59(b)(2). Vague, general, or conclusory objections are improper, will not be considered by the reviewing court, and are “tantamount to a complete failure to object.” Cole v. Yukins, 7 Fed.Appx. 354, 356 (6th Cir. 2001); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general objection to a magistrate [judge]'s report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.”); Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004) (“An ‘objection' that does nothing more than state a disagreement with a magistrate [judge]'s suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.”) District courts must endeavor to treat a party's properly rendered objections with scrupulous care. See Smith v. Durham D&M LLC, No. 19-6259, 2020 U.S. App. LEXIS 19471, at *3 (6th Cir. 2020).

However, the Court need not review - under a de novo or any other standard -those aspects of a report and recommendation to which no objection has been made. Arn, 474 U.S. at 150-52. “While most actions by a Magistrate Judge are reviewed for clear error, proposed recommendations on motions to suppress evidence in criminal matters are subject to de novo review.” United States v. Matlock, No. 2:14-cv-020075-JTF-dkv, 2015 U.S. Dist. LEXIS 12444, at *3-4 (W.D. Tenn. 2015); see United States v. Quinney, 238 Fed.Appx. 150, 152 (6th Cir. 2007).

FINDINGS OF FACT

Magistrate Judge Claxton discusses the affidavit and facts in this matter in her Report's “Background” section, which explains the series of events underlying Russell's Motion. (See ECF No. 131 at PagelD 1898-1911.) Although Russell has raised two legal objections to the Report, he does not challenge the Magistrate Judge's discussion as to these facts. Therefore, the Court ADOPTS and incorporates by reference those facts.^[1]

DISCUSSION

A. Applicable Law

Traditionally, reviewing courts afford “great deference to a magistrate's determination of probable cause” and assess only whether a “substantial basis” existed for that finding. United States v. Brown, 732 F.3d 569, 572-73 (6th Cir. 2013). The U.S. Supreme Court cautions that reviewing courts must not “defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.'” United States v. Leon, 468 U.S. 897, 915 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)). “On the merits, probable cause exists under the Fourth Amendment ‘when there is a fair probability, given the totality of the circumstances, that . . . evidence of a crime will be found in a particular place.'” United States v. Perry, 864 F.3d 412, 415 (6th Cir. 2017) (quoting Brown, 732 F.3d at 572). Critically, “a determination of probable cause[] must be bound by the four corners of the affidavit.” United States v. Laughton, 409 F.3d 744, 751 (6th Cir. 2005) (emphasis added). “There must be ‘a nexus between the place to be searched and the evidence to be sought.'” United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)). “The critical element in a reasonable search is . . . that there is reasonable cause to believe that the specific ‘things' to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

Yet, a “bare bones” affidavit does not provide a substantial basis for probable cause. United States v. White, 874 F.3d 490, 496 (6th Cir. 2017) (quoting Laughton, 409 F.3d at 74950) (“A bare-bones affidavit, in turn, is commonly defined as one that states only ‘suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.'”); United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998) (quoting United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir. 1996)). “[A]n affidavit is not bare bones if, although falling short of the probable-cause standard, it contains ‘a minimally sufficient nexus between the illegal activity and the place to be searched.'” White, 874 F.3d at 496-97 (quoting Carpenter, 360 F.3d at 596) (emphasis added).

“Even if an affidavit describing a suspect's drug activity does not establish a probablecause nexus between the place to be searched and the evidence of that activity, the affidavit will avoid the bare-bones label so long as it identifies a ‘minimally sufficient' nexus between the two.” United States v. Reed, 993 F.3d 441, 451 (6th Cir. 2021) (quoting Carpenter, 360 F.3d at 596) (emphasis added). The Sixth Circuit has “described a minimally sufficient nexus as one in which there is ‘some connection, regardless of how remote it may have been-some modicum of evidence, however slight-between the criminal activity at issue and the place to be searched.'” Id. at 451 (quoting United States v. McCoy, 905 F.3d 409, 416 (6th Cir. 2018)); Leon, 468 U.S. at 905 (exclusionary rule does “not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.”) “The ‘good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances . . . may be considered.'” Frazier, 423 F.3d at 533 (quoting Id. at 922-23 n.23.) “Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” Leon, 468 U.S. at 922 (internal quotations omitted). Nevertheless, the good faith exception to the exclusionary rule has four important limits: (1) where the issuing magistrate “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth,” Id. at 914; (2) if “the issuing magistrate wholly abandoned his judicial role,” id; (3) if the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” id. at 915; and (4) if the “warrant [is] so facially deficient - i.e., failing to particularize the place to be searched or the things to be seized . . .,” id. at 923; see Weaver, 99 F.3d at 1380; Van Shutters, 163 F.3d at 337.

B. Russell's Objections

Russell raises two objections to the Report: first, “that there is not a sufficient nexus between his cell phone location data and the investigation into ‘Ombisi's drug activity'” and, second, “that Ping Warrants 3-7 rely almost exclusively on stale information.” (ECF No. 131 at PageID 1912.)^[2] Russell's first objection maintains that the reviewing Magistrate Judge applied the wrong standard of review under United States v. Sheckles, 996 F.3d 330, 338 (6th Cir. 2021). In Sheckles, the Sixth Circuit “articulated two standards that might apply to evaluate whether [a] search warrant established probable cause.” United States v. Ennis, No. 21-1093, 2022 WL 976930, at *7-8 (6th Cir. 2022). (ECF No. 135 at PageID 1958-59.) “First, the traditional ‘nexus' standard, which asks if a search warrant affidavit shows ‘a fair probability that the phone's data will aid in a particular investigation and disclose evidence of criminal activity?'” Id. (quoting Sheckles, 996 F.3d at 338.) Second, the Sixth Circuit “questioned whether a higher standard, one that would require the affidavit to connect the phone itself...