742 Fed.Appx. 994 (6th Cir. 2018), 17-3503, United States v. Tucker

Docket Nº:17-3503
Citation:742 Fed.Appx. 994
Opinion Judge:BOGGS, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Curtis Earl TUCKER, Jr., Defendant-Appellee.
Attorney:David M. Toepfer, Office of the U.S. Attorney, Youngstown, OH, for Plaintiff-Appellant Kirk A. Migdal, Law Offices, Akron, OH, for Defendant-Appellee
Judge Panel:BEFORE: BOGGS, CLAY, and DONALD, Circuit Judges.
Case Date:August 07, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 994

742 Fed.Appx. 994 (6th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellant,

v.

Curtis Earl TUCKER, Jr., Defendant-Appellee.

No. 17-3503

United States Court of Appeals, Sixth Circuit

August 7, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

Page 995

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

David M. Toepfer, Office of the U.S. Attorney, Youngstown, OH, for Plaintiff-Appellant

Kirk A. Migdal, Law Offices, Akron, OH, for Defendant-Appellee

BEFORE: BOGGS, CLAY, and DONALD, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

On March 29, 2017, a federal grand jury indicted Curtis Earl Tucker, Jr. for possessing with the intent to distribute more than 500 grams of a methamphetamine mixture, in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(A)(viii), and for being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). Tucker subsequently filed a motion to suppress evidence seized from two residences, which the United States District Court for the Northern District of Ohio granted. The government now appeals that order, arguing that investigators acted in good faith when they executed search warrants for those residences.

For the reasons outlined below, we affirm the district court’s grant of Tucker’s motion to suppress.

I

A

From July 2016 until February 2017, law enforcement agents electronically surveilled Camiolo Rocha-Ayon, Jr., a suspected narcotics trafficker living in Canal Winchester, Ohio. During that timeframe, officers observed Rocha-Ayon engaging in behavior that was indicative of drug trafficking. On multiple occasions, for instance, Rocha-Ayon left his residence at 5126 Algean Drive in his day-to-day vehicle, drove to a second residence at 5387 Bradshaw Street, Canal Winchester, Ohio, stayed only for a short while, and then departed in a car that he normally did not use.[1] At

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least once, Rocha-Ayon drove this second vehicle, a white Infiniti, to a truck stop, where an unidentified individual removed a duffel bag from the car’s trunk and walked away.

On February 17, 2017, Rocha-Ayon once again left his Algean Drive home, drove to the Bradshaw Street residence, and changed vehicles. After stopping at a Columbus, Ohio, sporting-goods store to purchase a vacuum sealer and sealing bags, Rocha-Ayon traveled to 791 Saxon Avenue, Akron, Ohio and parked in the driveway. Some time after Rocha-Ayon’s arrival, a white van registered to Tucker also pulled up to the residence; and although the van left shortly thereafter, it returned at 12:07 p.m. At 12:59 p.m., Rocha-Ayon departed in his white Infiniti and, on his way back to Canal Winchester, stopped at an outlet mall. Rocha-Ayon then proceeded to his Algean Drive residence, where he stayed for an unspecified period of time before returning to Bradshaw Street to switch back into his day-to-day vehicle.

Two days later, on February 19, Rocha-Ayon began this sequence anew. After leaving his Algean Drive residence in his day-to-day car, Rocha-Ayon drove to Bradshaw Street and switched vehicles. He then made his way to an area Wal-Mart, where he was observed placing a tan duffel bag into the trunk of his Infiniti. Approximately two minutes after he arrived at the Wal-Mart, Rocha-Ayon departed. This time, however, Rocha-Ayon did not reach his intended destination. While traveling on highway I-270, he was stopped by the Ohio State Highway Patrol for a moving violation. When a K-9 drug unit alerted to the odor of narcotics, his car was searched, and roughly 11 kilograms of cocaine was discovered in the tan duffel bag. A receipt for bulk plastic bags and a vacuum sealer, dated February 17, 2017, was also found.

Later that day, federal search warrants were issued for Rocha-Ayon’s Canal Winchester residences. At the Bradshaw Street location, investigators found a vacuum sealer, scales, United States currency, wire-transfer receipts, and empty drug packaging, while at the Algean Drive residence, they discovered approximately $223,000 in U.S. currency and eight firearms.

Based upon this evidence, Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence "to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine." Affidavit for Search Warrant for 791 Saxon Avenue ¶ 24. He further speculated that "a portion of the cocaine seized" from Rocha-Ayon was intended for Tucker, that "at least a portion of the currency recovered" from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Ibid. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police

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Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine2 ; and that the affidavit had been presented to and approved by "the Akron Police Legal Advisor." Id. at ¶¶ 25-27, 33.

On March 8, 2017, an Akron Municipal Court judge issued a search warrant for the Saxon Avenue house, permitting the seizure of: [b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, ... bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

Search Warrant for 791 Saxon Avenue. A search was conducted the next day, at which time officers recovered several empty vacuum-seal bags, multiple handguns (one of which was loaded), a hydraulic press with a mold, and United States currency. Investigators also found Tucker’s birth certificate, vehicle registrations, and Summit County Fiscal Office records identifying him as the owner of 2123 Penguin Avenue, Akron, Ohio.

That same day, investigators obtained a records-and-documents search warrant for the Penguin Avenue residence. In addition to reciting the information contained in the Saxon Avenue affidavit and listing the evidence seized from that location, the Penguin Avenue affidavit noted that Tucker had forwarded the utilities bill for the Saxon Avenue residence to 2123 Penguin Avenue. It further stated that in April 2016, the Summit County Sheriff’s Office had received a report of a domestic dispute at the address and that Tucker had been identified as a participant in it. On March 9, 2017, shortly after the warrant was issued, a search of the residence was conducted, during which three guns, United States currency, and four kilograms of methamphetamine were discovered.

B

On April 24, 2017, Tucker moved to suppress the evidence seized from the Saxon Avenue and Penguin Avenue residences on the grounds that the affidavits offered in support of the search warrants were "devoid of any evidence connecting the residences to the drug dealing activity." Tucker accordingly claimed that the affidavits failed to establish probable cause and that the good-faith exception did not apply.

After holding a suppression hearing, the district court agreed with...

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