MATTHEW F. LEITMAN, District Judge.
On November 15, 2016, a grand jury indicted Defendant Ashanti Walton on a number of firearm and drug offenses. The charges rest in large part upon evidence that law enforcement officers seized when they searched a residence located in Inkster, Michigan. Officers conducted that search pursuant to a warrant issued by a state-court judge.
Walton now moves to suppress the evidence seized during the search on the ground that the affidavit submitted in support of the warrant (1) contained false statements and (2) omitted important facts. (See ECF #14.) Walton contends that suppression is warranted under Franks v. Delaware, 438 U.S. 154 (1978), because the officer-affiant made the misstatements and omissions with reckless disregard for the truth and because the affidavit, when modified to remove the mis-stated facts and to include the omitted facts, is insufficient to establish probable cause to search the residence. (See id.)
The Court declines to suppress the evidence. As explained below, even if the affidavit were modified pursuant to Franks, the affidavit would still establish that on the same day that the officer-affiant sought the warrant, a person exited the residence, engaged in a drug transaction in the driveway, and re-entered the residence. Under controlling Sixth Circuit precedent, those facts alone are enough to establish probable cause to search the residence. See United States v. Ellison, 632 F.3d 347 (6th Cir. 2011). Accordingly, Walton's Motion to Suppress is
On October 17, 2016, Detective Carl Mack of the Western Wayne Narcotics Team (the "WWNT") received a tip from a paid confidential informant that two black males were driving around the City of Inkster in a burgundy Ford Explorer attempting to sell crack cocaine. (See 6/20/2017 Hearing Tr., ECF #21 at Pg. ID 158.) Detective Mack relayed the tip to Detective Brian Zinser. (See id.)
Later that afternoon, Detective Zinser located the Ford Explorer parked in the driveway of a home located at 26842 Hopkins Street in the City of Inkster (the "Hopkins Residence"). (See 9/12/2017 Hearing Tr., ECF #22 at Pg. ID 283-84, 286-87.) Detective Zinser then began conducting surveillance of the residence. (See id. at Pg. ID 287.) Detective Zinser observed a maroon Ford pick-up truck pull into the driveway of the Hopkins Residence, and he saw a person walk from the residence to the driver's side of the truck. (See id. at Pg. ID 291-292.) The person spent about thirty seconds at the side of the truck and then returned to the house, and the truck drove away. (See id.) Detective Zinser could not see the interaction between the person from the house and the driver of the truck because Zinser was positioned on the opposite side of the truck. (See id. at Pg. ID 293-94.) But based upon his experience, he suspected that the two individuals engaged in a drug transaction.
WWNT Sergeant Paul Calleja, who was also involved in the investigation arising out of the tip, then directed Michigan State Trooper Robe to stop the maroon truck, and Trooper Robe did so. (See id. at Pg. ID 331.) Officers from the WWNT joined State Trooper Robe during the stop. (See id. at Pg. ID 331-32.)
The driver of the truck initially denied any wrongdoing, but then admitted that he had crack cocaine in the truck's center console. (See id. at Pg. ID 333.) Officers thereafter retrieved a baggie from the console, tested its contents, and verified that the baggie contained cocaine. (See id. at Pg. ID 334.) The officers then arrested the driver and took him to a police station. (See id. at Pg. ID 335-36.) During a post-Miranda interview, the driver admitted that he had purchased $100 of crack cocaine at the Hopkins Residence earlier in the day. (See id. at Pg. ID 305.) The driver added that on four prior occasions, he had purchased crack cocaine at the Hopkins Residence from a man named Russ who lived there. (See id. at Pg. ID 304.)
Later that day, Detective Mack asked Judge Mark Somers of the 19th District Court for the State of Michigan to issue a search warrant for the Hopkins Residence. In support of the warrant request, Detective Mack submitted an affidavit (the "Mack Affidavit") in which he stated, among other things, that:
(Mack Aff., ECF #14-1 at Pg. ID 68-69.)
Judge Somers issued a search warrant for the Hopkins Residence the same night Detective Mack presented it to him (see Search Warrant, ECF #14-1 at Pg. ID 75-76), and officers from the WWNT immediately executed it. During the search, the officers found drugs, drug paraphernalia, multiple firearms and other weapons, and body armor. (See Criminal Compl., ECF #1.)
On November 15, 2016, a grand jury indicted Walton on three offenses: possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); felon in possession of firearms in violation of 18 U.S.C. § 922(g); and possession of firearms in furtherance of drug trafficking crime in violation of 18 U.S.C § 924(c). (See ECF #8.)
On February 6, 2017, Walton filed a motion for a Franks hearing and to suppress the evidence seized from the Hopkins Residence (the "Motion to Suppress"). (See ECF #14.) The Court granted Walton's request for a Franks hearing. (See ECF #18.) The Court held an evidentiary hearing on June 20, 2017, and continued the hearing on September 12, 2017. Detective Mack, Detective Zinser, Sergeant Calleja, and Judge Somers testified at the hearing.
In a post-hearing supplemental brief, Walton argues that the Mack Affidavit contains numerous misstatements and omissions and that Detective Mack made them with reckless disregard for the truth. (See Walton's Post-Hearing Supp. Br., ECF #24 at Pg. ID 415-23.) Walton contends that the Court should strike the misstatements and read the omissions into the Mack Affidavit, and he insists that once the affidavit is corrected in that manner, it no longer establishes probable cause to search the Hopkins Residence. (See id. at Pg. ID 423-26.)
The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Whether the required probable cause exists depends upon the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230 (1983). "The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238.
When a defendant challenges the sufficiency of an affidavit submitted in support of a search warrant, "the duty of a reviewing court is simply to ensure that the [issuing judge] had a substantial basis for . . . conclud[ing] that probable cause existed." Id. (quotations omitted). "The affidavit should be reviewed in a commonsense- rather than a hypertechnical-manner, and the court should consider whether the totality of the circumstances supports a finding of probable cause, rather than engaging in line-by-line scrutiny." United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004). Finally, "[t]he [issuing judge's] determination of probable cause is afforded great deference, and that determination should be reversed only if the magistrate arbitrarily exercised his discretion." Id.
But what should a reviewing court do when a defendant presents evidence that law enforcement officers misled a judicial officer into issuing a warrant by making false statements in, or omitting important information from, a search warrant affidavit? Franks answers that question. Under Franks, a reviewing court "must strike from the warrant affidavit statements that the defendant can prove by a preponderance of the evidence to be both (a) materially false and (b) made with reckless or intentional disregard for their falsity." United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (citations omitted). "If the redacted affidavit, purged of recklessly and materially false statements, no longer establishes probable cause, then the court must hold the resulting search warrant invalid." Id. (footnote omitted). Likewise, if a defendant proves by a preponderance of the evidence that an affidavit contains material omissions made with reckless disregard for the truth, a court must "analyze the affidavit `including the omitted portions and determine whether probable cause still exists.'" United States v. West, 520 F.3d 604, 611 (6th Cir. 2008) (quoting United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.1997)).
Walton contends that the Mack Affidavit is tainted by material misstatements and omissions. He first identifies the following allegedly false statements:
Walton then highlights the following facts, revealed during the evidentiary hearing before the Court, that Mack omitted from his affidavit:
Walton contends that Detective Mack acted with a reckless disregard for the truth when he made the misstatements and omissions identified above.
The insurmountable problem for Walton is that even if he is correct — i.e., even if Detective Mack made the alleged misstatements and omissions identified above and did so with reckless disregard for the truth — suppression of the evidence would not be warranted.
If the alleged misstatements were eliminated from the Mack Affidavit and the omitted facts were added back in, the affidavit would provide in relevant part that (in red-line format to clearly show the eliminations and additions):
This modified affidavit, when read in a "commonsense" fashion, indicates that:
These facts are sufficient to support a reasonable belief that an occupant of the Hopkins Residence exited the residence and engaged in a drug transaction with the driver of the maroon truck in the driveway of the residence. That drug deal (along with Mack's statement in his affidavit that drug sellers often keep their wares in places over which they have dominion or control or to which they have ready access) established probable cause to search the residence. See United States v. Ellison, 632 F.3d 347 (6th Cir. 2011).
In Ellison, state law enforcement officers sought a warrant to search a residence. In support of their request, they submitted an affidavit that described a driveway drug deal involving an occupant of the residence:
Id. at 348. The officer-affiant added that, in his experience, "persons present at locations where illegal narcotics are sold and/or used often have contraband, narcotics paraphernalia, weapons, or other evidence of criminal conduct hidden on their persons or in their belongings. . . ." Id.
The Sixth Circuit agreed that the affidavit established probable cause to search the residence:
Id. at 349.
The driveway drug deal described in the Ellison affidavit is not distinguishable in any meaningful way from the driveway drug deal depicted in the modified Mack Affidavit set forth above. Since the affidavit in Ellison established probable cause to search the house, the Court is compelled to hold that the Mack Affidavit, as modified, would have been sufficient to establish probable cause to search the Hopkins Residence.
Walton insists that the Mack Affidavit, as modified to reflect the additions and deletions identified above, would not have established probable cause to search the Hopkins Residence. The Court disagrees. The Court addresses Walton's arguments concerning each addition and deletion below.
Walton first focuses on the deletion of the statements connecting him to license plate LULU4 and to the Dodge Charger in the driveway of the Hopkins Residence. Walton says that these false statements were essential to Judge Somers' finding of probable cause because they were "the only real connecting fact[s] between [himself] and the Hopkins residence. . . ." (Walton's Post-Hearing Supp. Br., ECF #24 at Pg. ID 418.) However, probable cause to search the Hopkins Residence did not hinge upon Walton's alleged connection to the residence. Instead, as Ellison makes clear, probable cause existed based upon the driveway drug deal. Thus, deleting the references in the Mack Affidavit to license plate LULU4 and its registration to Walton — and thereby weakening the link between Walton and the Hopkins Residence — would not have negated the probable cause established by the affidavit.
Walton next turns to the addition of the fact that the driver of the maroon pickup truck initially lied to police about why he visited the Hopkins Residence. Walton argues that including the driver's false statements in the Mack Affidavit would have "undermined . . . the full truth of the matter[s]" addressed in the affidavit. (Id. at Pg. ID 419.) The Court does not share that view. The Court does not believe that the truck driver's initial false statements here materially undermine the veracity of his later confession that he did, in fact, engage in a drug deal at the Hopkins Residence. Indeed, it does not strike the Court as terribly unusual that a driver stopped on suspicion of drugs would initially deny any culpability and offer a false exculpatory explanation and then truthfully admit his guilt only after recognizing that the "jig is up."
Walton next addresses the change to the Mack Affidavit reflecting that State Trooper Robe stopped the driver of the maroon pick-up truck for an "investigatory drug stop" rather than for "traffic violations." Walton asserts that this change would have led Judge Somers to conclude that the stop of the maroon pick-up truck was unlawful because it was not supported by a reasonable suspicion that the driver had committed a drug offense. (Id. at Pg. ID 420.) Walton then contends that if Judge Somers had determined that the stop of the truck was illegal, he would have excluded from his probable cause analysis the fact that officers found crack cocaine in the maroon pick-up truck. (See id.) Walton finally implies if Judge Somers had not considered the crack cocaine found in the truck, he would not have found probable cause to search the Hopkins Residence and would have refused to sign the search warrant. (See id.)
This line of argument rests on the assumption that Judge Somers would have or should have independently analyzed the legality of the stop of the maroon pickup truck. But Walton has not presented any evidence that Judge Somers customarily analyzed whether police lawfully seized evidence mentioned in search warrant affidavits presented to him, nor has Walton cited any cases holding that a judicial officer should do so at the warrant-issuing stage.
Next, Walton highlights the addition of the fact that the source of the original tip in the investigation — the tip that two men in a Ford Explorer were attempting to sell crack cocaine — was a paid informant. Walton argues that if "Judge Somers [had] known that the informant was being paid, he certainly would have wanted more informant corroborating evidence to justify the search of the home." (Walton's Post-Hearing Supp. Br., ECF #24 at Pg. ID 421.) This argument overstates the significance of the original tip. That tip merely led officers to the Hopkins Residence; their observations and actions once they arrived at the residence (and afterwards) were the keys to establishing probable cause to search the residence. Moreover, the officers' observations and subsequent investigation served to corroborate the informant's tip (at least to some extent). The informant reported that the Ford Explorer was being used to sell drugs, and Detective Zinser saw that vehicle parked in the driveway of a home from which drugs were being sold. Under all of these circumstances, the addition to the Mack Affidavit of the fact that the informant was paid would not have undermined the probable cause established by the affidavit.
Finally, Walton argues that the Mack Affidavit would not have established probable cause if it had revealed that Louise Russell owned the Hopkins Residence. Walton insists that Russell's ownership of the home "separated any connection between the home and the investigation[']s observed illegalities." (Id. at Pg. ID 422.) But the fact that Russell owned the home would not have undermined the officers' observations — as reported in the Mack Affidavit — that an individual from the home sold drugs to another person in the driveway of the home. And that transaction, standing alone, was enough to establish probable cause to search the Hopkins Residence — no matter who owned it. See Ellison, 632 F.3d at 349. Thus, the Mack Affidavit would have established probable cause to search the residence even if the affidavit revealed that Russell owned the residence.
In sum, none of the additions to, or deletions from, the Mack Affidavit would have undermined the statements in that affidavit that were sufficient to establish probable cause to search the Hopkins Residence — i.e., the report that officers observed a drug transaction in the driveway of the residence involving an individual who left from, and returned to, the residence. Thus, there is no basis to suppress the evidence seized pursuant to the warrant issued by Judge Somers.
For the reasons explained above,
