United States v. Genco
| Decision Date | 07 February 2022 |
| Docket Number | Case No. 1:21-cr-85 |
| Parties | UNITED STATES of America, Plaintiff, v. Tres GENCO, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
584 F.Supp.3d 515
UNITED STATES of America, Plaintiff,
v.
Tres GENCO, Defendant.
Case No. 1:21-cr-85
United States District Court, S.D. Ohio, Western Division.
Filed February 7, 2022
Megan Gaffney Painter, Timothy S. Mangan, U.S. Department of Justice U.S. Attorney's Office, Cincinnati, OH, for Plaintiff.
Richard W. Monahan, Public Defender, Federal Public Defender's Office, Cincinnati, OH, for Defendant
ORDER
Susan J. Dlott, United States District Court Judge
This matter is before the Court on five motions1 filed by Defendant Tres Genco: (1) Motion to Suppress Evidence from Warrantless Search of Residence on March 12, 2020 ("Motion to Suppress Evidence from Warrantless Search") (Doc. 25); (2) Motion to Suppress Evidence Seized in Search Warrant for Residence on March 13, 2020 ("Motion to Suppress Evidence Seized in Search Warrant") (Doc. 26); (3) Motion to Dismiss Count 1 of the Indictment Based on Improper Venue (Doc. 34); (4) Motion to Dismiss Count 1 of the Indictment Based on Commerce Clause (Doc. 38); and (5) Motion to Dismiss Count 2 of the Indictment (Doc. 28). At the request of the Court, the parties also filed Supplemental Memoranda. (Docs. 45, 46.) The Government opposes all motions.
For the reasons set forth herein, Defendant's Motion to Suppress Evidence from Warrantless Search (Doc. 25) will be GRANTED IN PART . Defendant's Motion to Suppress Evidence Seized in Search Warrant (Doc. 26) will be DENIED . Defendant's three Motions to Dismiss (Docs. 28, 34, 38) will be DENIED .
I. FACTS
A. Indictment Facts2
On July 20, 2021, Defendant Tres Genco was indicted on the following charges: (1) attempted hate crime in violation of 18 U.S.C. § 249(a)(2) ; and (2) unlawful possession of a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). (Doc. 7.)
From at least July 2019 through March 12, 2020, Genco identified as an Incel and maintained profiles on a popular Incel website where he posted frequently. (Id. at PageID 25.) "Incel" stands for "involuntary celibate." (Id. at PageID 24.) The Incel movement is an online community predominantly comprised of men who harbor anger towards women. (Id. ) Incels advocate violence to support their belief that women unjustly deny them sexual or romantic attention to which they are entitled. (Id. )
On or about January 2019, Genco purchased tactical gloves, a bullet proof vest, a hoodie bearing the word "Revenge," cargo pants, a Bowie knife, and a skull facemask. (Id. ) In February 2019, he purchased a rifle. (Id. ) On May 20, 2019, Genco purchased two factory Glock 17 magazines, a 9 mm Glock 17 clip, and a holster clip concealed carry for a Glock. (Id. at PageID 25–26.)
On or about August 3, 2019, Genco wrote a document entitled "A Hideous Symphony a manifesto written by Tres Genco, the socially exiled Incel," (Id. at PageID 25.) In that document, Genco wrote, in part:
I would hope these words resonate in sweet familiarity to fellow incels, either cognizant of their situation or not ... I am already set to go into the U.S. Army ... this training will be for the attainment of one reality, the death of what I have been deprived most, but also cherish and fantasize at the opportunity of having but has neglected of; Women. I will slaughter out of hatred, jealousy, and revenge ... I will take away the power of life that they withhold from me, by showing there is more than just happiness and fulfillment, there is all encompassing death, the great equalizer that will bear all of us into its seductively calm velvet of silence and serenity.
(Id. at PageID 25.) Between July 30, 2019 and August 15, 2019, Genco wrote a note that identified a university in the Southern District of Ohio and included the following language: "May 23, 2020 290 days! M-16 optimal, covert or mil-spec. Will get arms training in BCT, Georgia KC3 needs to be huge! 3,000? Aim big then[.]" (Id. at PageID 26.) On August 3, 2019, the same day he drafted his manifesto, he conducted online searches for sororities and a university in Ohio. (Id. )
In August 2019, Genco researched gun modifications and saved illustrated guides to constructing M-16s. (Id. ) Genco conducted internet searches for topics including: "Elliot Rodger," "difference between full auto and semi auto," "homemade flash bang," and "how many days until may 23." (Id. ) Genco attended Army Basic Training in Georgia from August 2019 until he was discharged in December 2019. (Id. )
On January 11, 2020, after returning to the Southern District of Ohio, Genco created a document entitled "isolated." (Id. ) It reads: "If you're reading this, I've done something horrible. Somehow you've come across the writings of the deluded and homicidal, not an easy task, and for that I congratulate you for your curiosity and willingness to delve into such a dark topic." (Id. ) Genco signed the document, "Your hopeful friend and murderer[.]" (Id. )
On January 15, 2020, Genco conducted surveillance of a university in Ohio and conducted internet searches for topics including "planning a shooting crime" and "When does preparing for a crime become an attempt?" (Id. ) On March 11, 2020, Genco conducted internet research of police scanner codes for Columbus, Ohio police
and university police. (Id. at PageID 27.)
On March 12, 2020, police officers responded to Genco's residence in Highland County, Ohio. (Id. ) At the residence, in the trunk of Genco's vehicle, police officers found, among other things, a Palmetto State Armory 5.5x45mm caliber firearm with a bump stock attached, several loaded magazines, body armory, and boxes of ammunition. (Id. ) Hidden in a heating vent in Genco's bedroom, police officers found a Glock-style 9mm Luger caliber semiautomatic pistol, with no manufacturer's marks or serial number. (Id. )
B. Procedural History
Genco was indicted on July 20, 2021 and made his initial appearance the following day. (Docs. 7, 10.) On August 25, 2021, Defendant filed his Motion to Suppress Evidence from Warrantless Search (Doc. 25); Motion to Suppress Evidence Seized in Search Warrant (Doc. 26); and (3) Motion to Dismiss Count 2 of the Indictment (Doc. 28). The Government filed an omnibus Response in Opposition to Defendant's Motions on September 10, 2021. (Doc. 32.) On October 6, 2021, Defendant filed a Motion to Dismiss Count 1 of the Indictment Based on Improper Venue. (Doc. 34.) On October 13, 2021, the Government filed a Response in Opposition. (Doc. 35.)
On October 20, 2021, the Court held a motion hearing, after which the Court took the matter under advisement and permitted the parties additional time to file post-hearing briefs and motions. (Docs. 36, 37.) On November 3, 2021, Defendant filed a Motion to Dismiss Count 1 of the Indictment Based on Commerce Clause (Doc. 38), to which the Government responded in opposition (Doc. 40), and Defendant replied (Doc. 43). Both the Defendant and the Government filed post-hearing briefs and supplemental memoranda. (Docs. 39, 41, 42, 45, 46.)
II. MOTIONS TO SUPPRESS
Genco challenges both the warrantless search of his bedroom as well as the warrant-based search of his home. For the reasons that follow, Defendant's Motion to Suppress Evidence from Warrantless Search will be GRANTED IN PART , and the Motion to Suppress Evidence Seized in Search Warrant will be DENIED .
A. Motion to Suppress Evidence From Warrantless Search
In his Motion to Suppress Evidence from Warrantless Search, Genco argues that the warrantless search of his bedroom exceeded the scope of his consent, no exception saves the search, and exclusion of references to the documents (later obtained via search warrant) is the appropriate remedy. The Court finds that the search violated Genco's Fourth Amendment rights and will GRANT IN PART the Motion.
1. Detective Engle's Testimony About the Search of Genco's Bedroom
Detective Erica Engle testified as a Government witness at the October 20, 2021 suppression hearing. (Transcript, Doc. 37.) Detective Engle is a detective with the Highland County Sheriff's Office and responded to Genco's residence on March 12, 2020 due to a report that he was locked in his bedroom with a gun threatening his mother. (Id. at PageID 145–47.) When Detective Engle arrived at Genco's home with her colleague Sergeant Vincent Antinore, Officer Craig Seaman, Deputy Brandon Young, and Deputy Nick Myers were in a crowd with Genco and Genco's mother. (Id. at PageID 147–51.)
Detective Engle approached the group and heard Sergeant Seaman talking to Genco about the location of the firearm. (Id. at PageID 149.) Genco first stated he did not have a firearm; he then stated that he did have a firearm and it was in the back seat of his car. (Id. ) Officers asked for permission to search his vehicle, which Genco granted. (Id. at PageID 149–50.) During the search, Genco stated the firearm was probably in the trunk, so Deputy Young opened the trunk of the car and discovered ceramic-plated body armor, a rifle, and multiple boxes of ammunition. (Id. at PageID 150.) Upon the discovery, Genco's mother was "shocked" and began asking Genco why he had the firearm. (Id. ) Genco dismissed her questioning and acted like having the firearm was "no big deal." (Id. at PageID 150–151.)
Genco's mother told law enforcement that in the last several months, Genco's behavior was "out of control, erratic, not like him." (Id. at PageID 151.) She was very concerned about his behavior and what he had been up to. (Id. ) She told law enforcement that Genco joined the military, but once he got out, he became a very different person who was agitated and doing things that were out of character. (Id. at PageID 152.) For instance, he traveled to Greece for ten days without knowing anyone or having a reason to go, and he never discussed with her what he was going to be doing while he was there. (Id. ) Genco's mother discovered a firearm in her car, and when she asked Genco about it, he told her it was none of her business, and not to worry...
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