United States v. Dejournett, CASE NO. 5:13CR513

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtHONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
PartiesUNITED STATES OF AMERICA, PLAINTIFF, v. DIERE DEJOURNETT, et al., DEFENDANTS.
Docket NumberCASE NO. 5:13CR513,CASE NO. 5:14CR163
Decision Date29 July 2014

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DIERE DEJOURNETT, et al., DEFENDANTS.

CASE NO. 5:13CR513
CASE NO. 5:14CR163

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

July 29, 2014


JUDGE SARA LIOI

OPINION AND ORDER

The superseding indictment in Case No. 5:13CR513 charges defendants with participating in an extensive drug trafficking conspiracy. All ten (10) defendants have been charged with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846. Defendant Diere DeJournett is also charged with possession of a firearm while under a disability, in violation of 18 U.S.C. § 922(g)(1), and concealment and attempted concealment of drug proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (2). (Superseding Indictment, Doc. No. 18.) In a related case—Case No. 5:14CR163—defendant Durvelle Turner, Jr. is charged with one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and one count of felon in possession of a weapon, in violation of 18 U.S.C. §§ 922(a)(1) and 924(a)(2). (Case No. 5:14CR163, Indictment, Doc. No. 1.) Upon motion of defendant Durvelle Turner, Jr., case number 5:14CR163 was consolidated with case number 5:13CR513 on June 13, 2014.

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Pursuant to the Court's Amended Trial Order, defendants and the government filed a series of pre-trial motions. The Court conducted a hearing on all of the pre-trial motions, in both cases, on June 27, 2014. Upon representations from the government that it has already and will continue to honor its discovery obligations, defendants withdrew their discovery-related motions. (See Minutes June 27, 2014.) At the conclusion of the hearing, the Court announced its ruling on the government's motion to qualify its expert, and took the remaining motions under advisement. This Opinion and Order shall memorialize its oral ruling on the government's motion and resolve the remaining pre-trial motions. Specifically, the Court shall address herein: the government's motion to qualify DEA S.A. Daniel Wehrmeyer as an expert (Doc. No. 112); the motions of DeJournett and Noel to suppress intercepted communications (Doc. Nos. 122 and 142, respectively); and DeJournett's motion to suppress evidence seized during government searches. (Doc. No. 123.) With respect to Case No. 5:14CR163, the Court will also address defendant Turner's motion to suppress. (Doc. No. 7.)

A. Defendant DeJournett's Motion to Suppress (Doc. No. 123) and Defendant Turner's Motion to Suppress (Case No. 5:14CR163, Doc. No. 7)

Defendant DeJournett seeks to suppress all evidence seized from three locations: (1) 55 Shiawassee Ave, Suite 8 AKA FI, Fairlawn, Ohio; (2) 55 Shiawassee Ave., Easternmost Suite on the south side of the building; and (3) 2740 Foxwood Drive, Bath, Ohio, owing to what he perceives as insufficiencies in the warrants and Master Affidavit offered in support of the warrants. Specifically, DeJournett argues that: (1) the Master Affidavit lacked the requisite nexus between the places to be searched and the evidence to be seized; (2) the warrants were overly broad; and (3) the warrants were

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based on stale evidence. The government rejects each attack upon the warrants and supporting affidavit and, in any event, argues that the searches should be upheld under the good faith exception to the exclusionary rule.1 (Doc. No. 133.)

In Case No. 5:14CR163, defendant Turner seeks to suppress evidence seized from 1934 13th Street, Akron, Ohio, on January 13, 2014. (Doc. No. 7.) The government opposes this motion, as well.2 (Doc. No. 13.) Like DeJournett, Turner argues that the affidavit supporting the warrant failed to establish the necessary nexus, lacked the requisite particularity, and was based on stale evidence. Turner also requests a Franks hearing. The government opposes these attacks and also challenges Turner's standing to challenge the search of the Akron residence, noting that Turner has never asserted "that the location searched was his or that he had a legitimate privacy interest in the premises." (Case No. 5:14CR163, Doc. No. 13 at 57.)

On October 24, 2013, a warrant application was submitted for the search of various locations, including the aforementioned two storefronts and DeJournett's Bath, Ohio residence. On January 13, 2014, an application was presented to the neutral

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magistrate seeking permission to search 1934 13th Street in Akron Ohio, which was believed to be Turner's residence. The search of the Akron residence yielded, among other things, a distributable amount of marijuana and a pistol. Based on these results, Turner was charged in Case No. 5:14CR163.

All of the searches in these consolidated cases were supported by the same October 24, 2013 Master Affidavit, prepared by FBI Task Force Officer Michael Gilbride and totaling 82 pages. (Master Affidavit, Doc. No. 126-1.) This supporting affidavit contained information derived from wiretaps, video surveillance, field investigation, and confidential informants, and included contributions from various federal and state law enforcement agencies. TFO Gilbride also drew from his considerable experience investigating "federal and state crimes involving drug trafficking, money laundering, and organized crime" in presenting the information to the neutral magistrate. (Doc. No. 126-1 ¶ 3.)

The affiant explained that, generally, his experience and training in investigating drug trafficking activity had taught him that the search of the residences of known drug dealers will "almost always produce evidence indicative of their illicit enterprise, even years after specific drug transactions have occurred." (Id. ¶ 10.) Based on this same experience, he also shared his belief that drug dealers often employ "limited, guarded, and coded" language when discussing drug activities amongst themselves. (Id. ¶ 12.)

As to the specifics of the investigation, the Master Affidavit provided that, beginning in October 2012, agents from various federal and state law enforcement agencies had been engaged in an investigation into drug trafficking activity in Akron,

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Ohio. One of the focal points of the investigation was a Drug Trafficking Organization ("DTO") headed by defendant DeJournett. (Id. ¶ 4.) The Master Affidavit concluded that, based upon the information gleaned from the investigation—a portion of which was set forth in the affidavit—the affiant had reason to believe that defendants Denay Webb, Donyale Robinson, Dwayne Anderson Sr., Kevin Preston, Johnny Brown, Scott DeJournett (referred to herein as "S. DeJournett"), Willie Lewis, Sergio Noel, Christopher Mckinnie, and Turner were members of DeJournett's DTO. (Id. ¶ 5.) TFO Gilbride represented that the investigation revealed that DeJournett received multi-kilogram shipments of cocaine on a regular basis, which were then distributed to his Akron-based associates, which included Turner and several of the other defendants. (Id. ¶¶ 4, 5.)

The affidavit further provided that all of the defendants had prior felony convictions involving drugs and weapons. (Id. ¶ 7.) Among DeJournett's past convictions were multiple convictions in 2001 for possession of cocaine and a 2003 conviction for conspiracy and possession with intent to sell cocaine. (Id. ¶ 7(A).) Defendant Turner had a 2006 conviction for cocaine trafficking. (Id. ¶ 7(K).)

According to the affiant, a confidential informant ("CS-1") provided information to officers that, dating back to 2012, he had purchased cocaine from defendant DeJournett at two locations: 55 Shiawassee in Fairlawn, Ohio; and 2740 Foxwood Drive, Akron, Ohio. (Id. ¶ 128.) CS-1 further told officers that he had purchased cocaine from DeJournett as recently as one week prior to October 24, 2013. (Id.) The affiant also recounted a surveilled visit by CS-1 to the Fairlawn address, on October 24, 2013, whereby CS-1 met with DeJournett for the purpose of supplying

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DeJournett $19,850.00 (in marked bills) in payment for a drug trafficking debt. (Id. ¶ 129.)

The affiant represented that the investigation revealed that DeJournett received a shipment of cocaine on August 11, 2013 and brought the drugs to 55 Shiawassee. (Id. ¶ 130.) The Master Affidavit recounted a series of intercepted cell phone conversations the following morning involving DeJournett and several of the co-defendants, including Turner, making plans to rendezvous at 55 Shiawassee. (Id. ¶¶ 33, 35-38, 41, 45.) In each call, the participants used guarded and vague language, suggesting that they would meet at or near the "office" for some undisclosed reason. Video surveillance of 55 Shiawassee that same morning captured footage of DeJournett and several other defendants, including Turner, arriving at 55 Shiawassee. With the exception of DeJournett, each defendant stayed at the Fairlawn residence only a few minutes, and several defendants were seen carrying a bag away from the establishment. (Id. ¶¶ 34, 39, 40, 42, 43, 43, 44, 46, 48.) The supporting affidavit does not state that Turner was observed carrying anything in or out of the building.3 (Id. ¶ 40.)

Later that same afternoon, the affiant states that DeJournett and Robinson were observed in the parking lot of 55 Shiawassee. (Id. ¶ 56.) Immediately prior to the meeting, a cell phone call was intercepted between DeJournett and Robinson, wherein Robinson stated that he "need[ed] to run into" DeJournett. (Id. ¶ 55.) During the meeting, DeJournett had, in...

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