United States v. Mills

Decision Date05 April 2019
Docket NumberCase No. 16-cr-20460
Citation372 F.Supp.3d 517
Parties UNITED STATES of America, Plaintiff, v. Edwin MILLS, et al., Defendants.
CourtU.S. District Court — Eastern District of Michigan

Louis Crisostomo, Linda Aouate, United States Attorney's Office, Aldous Brant Cook, U.S. Department of Justice, Detroit, MI, for Plaintiff.

Gerald J. Gleeson, II, Miller Canfield Paddock & Stone, PLC, Troy, MI, Jean deSales Barrett, Ruhnke & Barrett, Montclair, NJ, Federal Defender, Federal Defender Office, Michael A. Rataj, Sanford A. Schulman, Christopher W. Quinn, II, Detroit, MI, Jacqueline K. Walsh, Walsh & Larranaga, Seattle, WA, Judith S. Gracey, The Gracey Law Firm, Keego Harbor, MI, Richard H. Morgan, Jr., Law Office of Richard H. Morgan Jr., Pontiac, MI, Avraham C. Moskowitz, Moskowitz, Book and Walsh, LLP, New York, NY, Stephen T. Rabaut, Clinton Township, MI, Michael O. Sheehan, Sheehan and Reeve, New Haven, CT, Sanford Plotkin, Sanford Plotkin, P.C., Ann Arbor, MI, James A. Waske, Southfield, MI, John M. McManus, McManus Law, Royal Oak, MI, Vincent J. Toussaint, Toussaint Law, Southfield, MI, for Defendants.

OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LOMNIL JACKSON'S MOTION TO SUPPRESS EVIDENCE (Dkt. 543)

MARK A. GOLDSMITH, United States District Judge

This matter is before the Court on Defendant Lomnil Jackson's motion to suppress all of the physical evidence seized during a pat-down search of his person and subsequent search of an apartment, both of which occurred on the same day in Huntington, West Virginia (Dkt. 543). Jackson also requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government has filed a response in opposition to the motion (Dkt. 585), to which Jackson replied (Dkt. 592). The Court conducted an evidentiary hearing on February 11, 2019,1 after which Jackson and the Government filed supplemental briefs (Dkts. 824, 845, respectively). For the reasons discussed below, the Court grants the motion in part and denies it in part.

I. BACKGROUND

A federal grand jury returned a second superseding indictment on February 28, 2018, charging the eleven defendants in this case with various crimes, including violations of the Racketeering Influenced and Corrupt Organizations Act (the "RICO" Act), 18 U.S.C. § 1961 et seq. See generally 2d Superseding Indictment (Dkt. 292). The indictment claims that Defendants were members and associates of a criminal enterprise—the "6 Mile Chedda Grove" street gang in Detroit—one of whose purposes was to "preserv[e] and protect[ ] the power, territory, reputation, and profits of the enterprise through murder, robberies, intimidation, violence, and threats of violence." Id. at 2, 6. The enterprise purportedly operated on the east side of Detroit within an area bordered roughly by East McNichols Road to the north, Kelly Road to the east, Houston-Whittier Street to the south, and Chalmers Street to the west. Id. at 2.2

The indictment further alleges that the enterprise's profits derived primarily from the sale and distribution of controlled substances, including crack cocaine, heroin, and morphine. Id. at 5. The sale and distribution alleged was not limited to Michigan; gang members and associates purportedly sold and distributed controlled substances in Ohio, Kentucky, Tennessee, Alabama, and West Virginia. Id.

Six of the eleven defendants have since pleaded guilty.3 The five remaining defendants have been separated into two groups with separate trial dates. See 8/7/2018 Order (Dkt. 425). Group One is composed of three defendants who are not subject to the death penalty upon conviction. Two of these defendants, Donell Thompson and Lomnil Jackson, have a trial date of May 7, 2019. See 8/28/2018 Order (Dkt. 464); 2/22/2019 Minute Entry (adjourning Group One trial date). The other Group One defendant, Robert Baytops, will have a separate trial at a future date. See 3/26/2019 Order (Dkt. 846) (granting Thompson's motion for severance). Group Two, composed of two defendants who are death-penalty eligible, has a trial date of April 21, 2020. See 8/31/2018 Order (Dkt. 475).

Jackson, who belongs to Group One, has been charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); one count of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count Four); one count of using and carrying a firearm during and in relation to a crime of violence causing death in violation of 18 U.S.C. §§ 924(c) and 924(j) (Count Five); one count of assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3) (Count Six); and one count of using, carrying, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Seven). See generally 2d Superseding Indictment.

Jackson's motion to suppress concerns overt act 40 in the second superseding indictment, see id. at 16 ("On or about June 8, 2015, LOMNIL JACKSON was present inside of a residence in which two firearms, cocaine, and oxycodone were found in Huntington, West Virginia."), as well as overt act 41, see id. at 17 ("On or about June 8, 2015, LOMNIL JACKSON possessed marijuana in Huntington, West Virginia."). The facts surrounding these overt acts in Huntington, West Virginia, were developed further during the evidentiary hearing, at which Huntington Police Department Detectives Adrian Rosario and Benjamin Butler, Huntington Police Department Sergeant Paul Hunter, and Jackson testified.

At around 8:00 a.m. in the morning of June 8, 2015, about ten to fifteen Huntington Police Department officers, which included members of the department's SWAT team, went to an apartment building in Huntington, West Virginia, to execute a search warrant. 2/11/2019 Hr'g Tr. at 8-9, 58-61, 83-84, 104, 110 (Dkt. 813). The apartment building itself was a two-story rectangular structure running north and south with adjoining apartments. Id. at 8, 9. Apartments located on the first floor were accessible from the exterior of the building, while access to apartments on the second floor was accomplished through internal doors. Id. at 9. The address for apartments on the west side of the building was 1005 Washington Avenue, while the address for apartments located on the east side of the building was 1001 Washington Avenue. Id. at 9, 103, 125.

The search warrant that was executed that morning was for 1005 Washington Avenue, Apartment 8. Id. at 8, 31, 34, 60, 104, 125. Jackson and Javonte Jennings were in 1001 Washington Avenue, Apartment 4. A common wall served as the backwall for both Apartment 8 and Apartment 4. Id. at 37-38. To gain entry to Apartment 8 and execute the search warrant, officers broke a large sliding glass door while, at the same time, loudly announcing that they were police officers. Id. at 38, 65; see also id. at 139 (Jackson, who was sleeping in Apartment 4, testified that he woke up to the sound of "knocking, banging on doors, [and] glass breaking"). Detectives Rosario and Butler were at the apartment complex to assist the other officers executing the warrant. Id. at 8, 60, 76. Sergeant Hunter was also present at the apartment building because he was the lead investigator and affiant for the search warrant of Apartment 8, but he did not personally participate in gaining entry to that apartment. Id. at 104, 109.

Although officers commonly wear vests identifying them as police when executing a search warrant, id. at 12, Rosario was unsure whether he was wearing a police vest or only had his "badge chain out" that morning, id. at 12, 18-19. However, Butler recalled wearing a "raid vest," and that the other officers at the scene were "marked as [ ] police officer[s]." Id. at 61, 75. Butler's gun was visible on his hip, but he did not draw the weapon. Id. at 74, 93. The SWAT team members were wearing tactical gear, including body armor and helmets, and openly carried long guns and shields. Id. at 62-63, 113. There were also several police vehicles, which may have included a black van marked Huntington SWAT. Id. at 63-64.

Approximately one week before the execution of the search warrant at Apartment 8, either Hunter or another officer at the Huntington Police Department had received a complaint about possible drug activity at 1001 Washington Avenue, Apartment 4 from the landlord of the apartment complex. Id. at 10, 16, 28-30, 104, 106-107, 128. The police department did not receive any specific drug complaints about Jackson or Jennings, id. at 15, 16, and the investigation at the apartment building leading up to the execution of the search warrant that morning did not involve either Jackson or Jennings, id. at 121.

While Rosario and Butler were waiting for the other officers to complete the search warrant at the apartment building, Hunter directed the two detectives to perform a knock-and-talk at Apartment 4 based on that prior drug complaint. Id. at 9-10, 66, 87, 114, 116, 128. Butler described a typical knock-and-talk procedure as follows:

[Y]ou knock loud enough if someone's going to answer the door just like ... if I was supposed to meet you at a friend's house, I would walk up, knock on the door, it's that kind of thing. You want somebody to answer the door, and once they answer the door, then you identify yourself and explain the reason why you're there.

Id. at 70. He further stated that, for a normal knock and talk, an officer "might spend a minute or two" at the door, "to make sure that ... they've had an opportunity to hear you and then when you, obviously they're not coming to the doorway, then you would leave." Id. at 98; see also id. at 100 ("If I was going to go to somebody's house, just say I was going to go to your house and I knocked on the door and you weren't there, I didn't believe that you were there, nobody came to the door, I'm not going to stay there for any extended period of time. We've knocked, no one's answering, we're going to...

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