United States v. Calvin Tuck 1
| Decision Date | 27 July 2018 |
| Docket Number | Case No. 1:18cr023 |
| Parties | United States of America, Plaintiff, v. Calvin Tuck - 1, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER
This matter is before the Court on Defendant Calvin Tuck's Motion to Suppress Evidence (Doc. 85), the Government's Response in Opposition (Doc. 88), and Defendant's Supplemental Authority (Doc. 93). Defendant moves to suppress all evidence and contraband seized from 5039 Casa Loma Boulevard Hamilton County, Ohio, on December 8, 2017 and argues that the search warrant obtained to search 5039 Casa Loma Boulevard violated his Fourth Amendment rights. (Doc. 85). Specifically, Defendant contends that the search warrant was not supported by sufficient probable cause, as the supporting affidavit did not establish the requisite nexus between the place to be searched and the items to be seized. (Id.).
On June 27, 2018, the Court held an evidentiary hearing and argument on the "four corners of the affidavit" at issue. (Doc. 89); see United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (). At the hearing, the Government provided the Court with Exhibit A which contains the affidavit at issue, the search warrant at issue, and the return on search warrant which permitted officers to search the residence at 5039 Casa Loma Boulevard and four motor vehicles.1 Following arguments, Defendant submitted Supplemental Authority in support of his Motion to Suppress in the form of the Sixth Circuit's recent decision in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). (Doc. 93).
The Fourth Amendment provides that "[t]he 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." U.S. Const. amend. IV.
Where an affidavit is submitted as the basis for probable cause in support of a search warrant, the Fourth Amendment requires that the affidavit "must provide the magistrate with a substantial basis for determining the existence of probable cause." United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)). "This requires 'a nexus between the place to be searched and the evidence sought,' 'at the time the warrant is issued.'" Christian, 893 F.3d at 853 (). "The connection between the [location tobe searched] and the evidence of criminal activity must be specific and concrete, not 'vague' or 'generalized.'" United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016).
The probable-cause standard is practical and nontechnical. [ ] Frazier, 423 F.3d [at] 531 [ ]. In other words, a reviewing court should consider the "totality of the circumstances" rather than "engage in line-by-line scrutiny of the warrant application's affidavit." United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008). But the court must limit its "review of the sufficiency of the evidence supporting probable cause . . . to the information presented in the four-comers of the affidavit." Frazier, 423 F.3d at 531.
In Christian, in reversing the district court's denial of the defendant's motion to suppress, the Sixth Circuit found fault with the sufficiency of the affidavit as it related to the defendant's criminal history, a controlled buy, a confidential informant, and surveillance by law enforcement. As those areas of concern are similar to the areas of concern in this case, the Court will compare and contrast the affidavits using those areas. Before doing so, the Court notes that the affidavit in this case begins by setting forth, in sufficient detail, information regarding the Affiant's background and experience in narcotics investigations, including working with a team of investigators who are trained and experienced in narcotics investigations, interviewing numerous individuals arrested for various drug offenses, and familiarity of the methods that drug traffickers utilize for the sale and distribution of narcotics. Search Warrant Affidavit, page 2. The Affiant then explains how, in October 2017, the Affiant received information from a source which identified Defendant as a heroin trafficker in Cincinnati, Ohio, using the cellular phone number (513) 714-6919. Id. The Affiant explains that the Affiant confirmed Defendant's identification using personal knowledge of Defendant, a picture obtained from the Ohio Bureau of Motor Vehicles, and the source's visual identification of Defendant based onthat picture. Id. With that background, the Court turns to the areas of concern highlighted in Christian. The Court will begin by comparing the criminal histories of Christian and Defendant Tuck. The Court will then compare the controlled buys, confidential informants, and surveillance methods found in the two cases.
Christian has been convicted of several drug-related crimes over a nineteen-year period: (1) possession of cocaine in 1996, (2) an unspecified second controlled-substance offense in 2002, (3) delivery/manufacture of marijuana and possession of a firearm by a felon in 2009, and (4) delivery/manufacture of cocaine in 2011.
Christian, 893 F.3d at 852. The Sixth Circuit found indicia of Christian's criminal history to be sporadic, dated, and not inconsistent with occasional sales (i.e., his sales were not protracted and continuous or ongoing and continuous). Id. at 862-63. The Sixth Circuit concluded "that Christian's prior criminal convictions, even considered with the eight-month-old controlled buy, d[id] not establish that he was engaged in protracted and continuous drug activity" and that "absent some 'independently corroborated fact that the defendant[ ] w[as a] known drug dealer[ ] at the time the police sought to search [his] home,' probable cause did not exist to search the Residence based on Christian's criminal record." Id. at 863 (citing McPhearson, 469 F.3d at 524).
CRIMINAL HISTORY - TUCK
In August of 2014, Tuck was arrested for multiple drug trafficking, drug possession and tampering with evidence charges (B1404582 and B1404361-B) by Cincinnati Police Department. Tuck was convicted and sentenced to six months in the Ohio Department of Corrections. In September of 2017, Tuck was arrested for trafficking in drugs and drug possession (B1705615-A), was indicted by the Hamilton County Grand Jury and is currently assigned to the Honorable Judge Thomas Heekin.
Search Warrant Affidavit, page 2. At the time of the search warrant, Defendant was under indictment for an alleged drug offense. Stated otherwise, Defendant's criminal history was detailed and recent.
CONTROLLED BUYS AND CONFIDENTIAL INFORMANTS - CHRISTIAN
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