United States v. Bell
| Decision Date | 06 March 2018 |
| Docket Number | CASE NO. 1:17-CR-336 |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF, v. DAUNTEZ D. BELL, DEFENDANT. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION AND ORDER
The Superseding Indictment charges defendant Dauntez D. Bell with multiple drug-related offenses. (Doc. No. 29.) These charges stem from a federal investigation into a suspected drug trafficking organization ("DTO") involving defendant and other named, and unnamed, conspirators.
Bell has filed a series of pre-trial motions. The Court conducted a hearing on these motions on February 16, 2018, at the conclusion of which it took the motions under advisement. The Court is now prepared to issue its rulings. Specifically, the Court shall address herein: Bell's motion to suppress evidence derived from the extension of GPS monitoring (Doc. No. 27), Bell's motions to suppress evidence obtained from residential searches (Doc. No. 28), and Bell's motion to suppress wiretap communications (Doc. No. 35).1 The motions have been fully briefed.
The Fourth Amendment mandates that there must be probable cause for any search and seizure. U.S. Const. amend. IV. "Probable cause has been defined as 'reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.'" United States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). "To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search." United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (quotation marks and citation omitted). "Probable cause is based on the totality of the circumstances; it is a 'practical, non-technical conception that deals with the factual and practical considerations of everyday life.'" United States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006) (quoting Frazier, 423 F.3d at 531); see United States v. Lazar, 604 F.3d 230, 241-42 (6th Cir. 2010) ().
Bell seeks to suppress all evidence seized from three locations: (1) 26900 George Ziegler Drive ("Four Seasons") Apt. 213, (2) 23351 Chagrin Blvd. ("Deville North") Apt. 104, and (3) 23351 Chagrin Blvd. ("Deville North") Apt. 404, owing to what he perceives as deficiencies in the affidavit offered in support of the warrant.2 Specifically, he maintains that the affidavit fails to establish the necessary "nexus" between the places to be searched and items sought therein. The government insists that the proper nexus has been established with respect to each location searched. In its opposition brief, the government also questioned Bell's standing to challenge any of the searches.
On July 14, 2017, a warrant application was submitted for the search of various locations, including the three referenced apartments. In support of the application, S.A. Sean O'Malley, an employee of the Department of Justice, Drug Enforcement Administration, offered an affidavit setting forth the basis for the requested warrants. (Doc. No. 28-1 ["Affidavit"], beginning at 167.) Following the issuance of the warrants, on July 14, 2017, the aforementioned locations were searched. The Deville North Apt. 104 search revealed clear plastic bags containing suspected marijuana, scales and blenders, cutting agents, respiratory masks, and a full body protective hazmat suit. The search of the Four Seasons Complex Apt. 213 yielded cell phones, two plastic bags containing suspected marijuana, large amounts of U.S. currency, and a red ledger suspected of recording drug activity. At the hearing, government counsel advised that the government does not intend to offer any evidence seized from Deville North Apt. 404 as part ofits case-in-chief, thereby rendering consideration of this portion of the motion unnecessary.
The searches were supported by S.A. O'Malley's affidavit, totaling 61 pages. The Affidavit contained information derived from wiretaps, video surveillance, GPS tracking, field investigation, and confidential informants. The agent also drew from his considerable experience investigating drug trafficking organizations. The affiant explained that, generally, his experience and training had taught him that the search of the residences of drug dealers will likely yield evidence of their illicit enterprise. He also averred that drug dealers often attempt to conceal their identities, as well as the locations in which drug transactions occur and drugs and records are stored. According to S.A. O'Malley, drug traffickers often utilize multiple vehicles in their enterprises, and keep property, vehicles, and records in the names of others to conceal the association with these places and things with drug trafficking.
As to the specifics of the investigation, the affidavit provided that since 2012 the affiant and his colleagues had been investigating Bell's suspected drug trafficking activities. It further provides that, through the investigation, officers learned that Bell resided at Four Seasons Apt. 213, that he was receiving large quantities of heroin from a source in Chicago, and that he was using Deville North Apts. 104 and 404 to store drugs.
It is well settled that, as a threshold matter to invoking the exclusionary rule, a criminal defendant "bears the burden of showing that his own Fourth Amendment rights were violated." United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (citation omitted, emphasis added). To establish standing to challenge a government search, "[a] defendant must satisfy a two-prongtest to show a legitimate expectation of privacy: (1) he must manifest an actual, subjective expectation of privacy; and (2) that expectation is one that society is prepared to recognize as legitimate." United States v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000) (citing United States v. Sangineto Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988)).
"The Sixth Circuit has generously construed the Fourth Amendment as protecting nearly all overnight guests, even when the guest occupies a common area in the apartment that is not private from other residents." United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (citation omitted). The Sixth Circuit has, in certain circumstances, "even extended standing to challenge a search to non-overnight guests who are permitted to keep items in the residence." Id. (citing United States v. Waller, 426 F.3d 838, 844 (6th Cir. 2005)). Moreover, the fact that the invited individual may use the space searched for criminal activities "does not alter the privacy expectations of a person who would otherwise have standing." Id. (citing Minnesota v. Carter, 526 U.S. 83, 91, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998)). However, someone who frequents a residence solely for business reasons, including illegal business activities, does not have an expectation of privacy. See Carter, 526 U.S. at 91 ().
Bell relies exclusively on the averments in the supporting affidavit to establish his standing to challenge the searches of the apartments. The record shows that none of the properties are owned by Bell, nor is he listed on any of the leases. Nevertheless, the warrant affidavit provides that Bell is believed to "reside[]" in the Four Seasons Apt. 213, and that surveillance revealed that he had on many occasions kept cars in the parking space reserved for Apt. 213. (Affidavit ¶¶ 13, 38, 39, 48, 53.) Bell cites the unreported decision in United States v.Arzate, No. 03-40026-01-SAC, 2003 WL 21667165, at *3 (D. Kan. June 16, 2003), to support his position that the government's averments, alone, may demonstrate a defendant's standing to challenge a search. Given that it is a part of the government's theory of the case that the Four Seasons apartment served as Bell's residence, and in the absence of case authority in the Sixth Circuit to the contrary, the Court will permit Bell to rely on the warrant application to establish standing as to that location. Moreover, at the hearing, the government's counsel conceded that Bell was living in Four Seasons Apt. 213 and thus had a reasonable expectation of privacy under the Fourth Amendment with respect to that dwelling.
In contrast to the Four Seasons apartment, the warrant affidavit does not establish Bell's standing to challenge the Deville North apartments. Bell points to the fact that the Affidavit provides that Bell was "in control of" Deville North Apt. 404. (Affidavit ¶ 16.) Beyond this reference, that same paragraph provides that Bell was believed to be using Apt. 404 "to store narcotics and/or narcotics proceeds." (Id.) Similarly, the Affidavit offered the opinion that Bell was using Deville North Apt. 104 "to store drugs and conduct drug-related meetings and transactions." (Id. ¶ 13.) The Affidavit does not offer any other possible uses for the apartments.3 Had the Affidavit, for instance, averred that Bell lawfully resided or visited the property, the fact that the property was also used for criminal activity would not defeat his standing. See Washington, 573 F.3d at 283 (). But Bell chose torely entirely upon the Affidavit to demonstrate standing, and the Affidavit establishes, at best, that he used these apartments to store drugs. This is insufficient to establish standing. See e.g., United States v. Gray, 491 F.3d 138, 153 (4th Cir. 2007) (...
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