United States v. Torbert

• Decision Date: 01 March 2021
• Docket Number: Case No. 1:19-cr-31
• Citation: 522 F.Supp.3d 377
• Parties: UNITED STATES of America, Plaintiff, v. Oscar TORBERT, Defendant.
• Court: U.S. District Court — Southern District of Ohio

522 F.Supp.3d 377

UNITED STATES of America, Plaintiff,

v.Oscar TORBERT, Defendant.

Case No. 1:19-cr-31

United States District Court, S.D. Ohio, Western Division.

Signed March 1, 2021

Karl Paul Kadon, III, United States Attorney's Office, Cincinnati, OH, for Plaintiff.

Mary Jill Hugan, Cincinnati, OH, for Defendant.

ORDER DENYING DEFENDANT'S MOTIONS TO SUPPRESS EVIDENCE

Susan J. Dlott, Judge

This matter is before the Court on Defendant's Motion to Suppress Fruits of Search Warrant (Doc. 40) and Amended Motion to Suppress Fruits of Search Warrant (Doc. 47). The United States opposes these motions (Docs. 42, 49). In addition, the Court previously concluded that Defendant had made the preliminary showing entitling him to an evidentiary hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). (Doc. 51.) The Court conducted the hearing on February 1, 2021.

A grand jury indicted Defendant Oscar Torbert on charges of possession of fentanyl with intent to distribute, possession of a firearm by a convicted felon, possession of firearms in furtherance of a drug trafficking crime, and using premises for drug preparation. (Doc. 31.) All of these charges stem from drugs, drug preparation materials, and firearms obtained from 2504 Kipling Avenue in Cincinnati, Ohio. Torbert contends that the search warrant authorizing the search of the Kipling Avenue address lacked probable cause so the fruits of that search must be suppressed. For the reasons that follow, Defendant's motions will be DENIED .

I. BACKGROUND

In January 2018, state and federal drug task force officers began investigating Oscar Torbert for alleged narcotics sales. On March 13, 2019, officers executed a search warrant at Torbert's residence, 2504 Kipling Avenue. The pending motions seek to suppress the evidence discovered in executing the search warrant.

A. Search Warrant Affidavit

The affidavit underlying the search warrant states:

During the course of this investigation members of Law Enforcement met with a confidential and reliable informant, hereafter referred to as CI, that was able to provide detailed information about TORBERT and his narcotics trafficking operation. The CI has provided information to law enforcement in the past which was proven true and accurate through independent investigation. The information has also resulted in the successful recovery of narcotics and assets by law enforcement. Further, within the last month, the CI has observed TORBERT enter apartment #2 at 2504 Kipling Avenue. In the last month, members of Law Enforcement have observed TORBERT enter and exit the main entry door of 2504 Kipling Avenue multiple times and on one occasion observed TORBERT enter apartment #2.

On March 10, 2019, Agent Fields observed TORBERT exit 2504 Kipling Avenue. Agent Keller observed TORBERT meet very briefly with the occupant of a Gray Honda Crosstour at 2516 Kipling Avenue and then immediately return to 2504 Kipling Avenue. It is known to the Affiant that narcotics traffickers frequently meet with customers for narcotics sales in or near their vehicles for very brief times. This is done to minimize exposure to observation of law enforcement. Based upon the Affiant's training and experience it is known that this aforementioned conduct is consistent with hand to hand drug sales. Based on the previously described observations by members of Law Enforcement, it is the belief of the Affiant that TORBERT is using 2504 Kipling Avenue apartment #2 as a storage location for his narcotics.

On March 13, 2019, at approximately 3:00 P.M., members of Law Enforcement observed TORBERT exit 2504 Kipling Avenue and enter a 2013 Silver Honda Accord bearing Ohio license HJK4159. At approximately 3:36 P.M. plain clothes officers observed the Silver Honda being operated on Glen Este Avenue and then turning south into the 3600 block of Vine Street. This area of Avondale is known to the Affiant as a common area that narcotics traffickers meet customers to conduct drug transactions. A uniform Ohio Highway State Patrol was requested for a traffic stop. The stop was conducted in the Richie's parking lot at 3635 Vine Street. TORBERT was located in the rear seat of the vehicle. TORBERT had an active Felony warrant for Drug Possession, case #B1804615, TORBERT was arrested and officers located a small bag of Fentanyl on the seat where TORBERT was sitting and he admitted it was his. TORBERT was taken to the Hamilton County Justice Center for his open warrant and a new charge of Drug Possession.

In conclusion, it is the belief of the affiant that Oscar Torbert is conducting an ongoing drug trafficking operation and is utilizing 2504 Kipling Avenue apartment #2 as a storage location for the narcotics. It is known to the affiant that narcotics traffickers frequently utilize residences to which they have access to [sic] in their narcotics trafficking. Members of Law Enforcement have observed TORBERT enter and exit the residence to further his narcotics trafficking operation.

(Affidavit, Doc. 42-1 at PageID 145.)

Based on the affidavit, a Hamilton County Municipal Judge authorized the search of Torbert's residence—2504 Kipling Avenue, Apartment 2—as well as locked and unlocked storage areas in the building and detached garage. The search of Torbert's apartment yielded drug ledgers, drug preparation materials (including gloves, a blender, scales, a vacuum sealer and bags), a gram of fentanyl, marijuana and multiple cell phones. Officers used a key from Torbert's key chain to unlock a closet numbered "1" in a basement storage area. Inside the locked storage closet, officers found three firearms (two of which were loaded) and presses containing suspected fentanyl residue. Officers also located nearly 1,000 grams of fentanyl behind a stove in the basement common area.

B. Motion for Franks Hearing

Torbert previously moved for a Franks hearing alleging that officers intentionally omitted material information from the search warrant affidavit to give a false impression that the fentanyl Torbert possessed at the traffic stop originated from his Kipling Avenue residence. Specifically, Torbert stated that after he left his apartment in the silver Accord but before the traffic stop discussed in the affidavit, he stopped at a building on Glen Este Place. Torbert offered affidavits from two others corroborating that the intervening stop occurred. Over the United States’ objection, the Court granted Torbert's request for a Franks¹ hearing.

C. Evidence Adduced at the Franks Hearing

At the Franks hearing, Christopher Smith testified that he drove the silver Accord on the day in question. He confirmed that he, Torbert, and one other person drove together from Kipling Avenue to Glen Este Place. He and the other person waited in the car while Torbert entered the Glen Este Place apartment building for approximately 20 minutes. Once Torbert returned to the car, they drove up Glen Este Place, turned onto Vine Street, and were almost immediately stopped by police.

Similarly, Gregory Sandford testified that he lives on Glen Este Place, and Torbert stopped at his residence during the afternoon of March 13, 2019. He believed that Torbert stayed approximately 20 to 30 minutes. However, both Smith and Sandford noted the length of time that had passed between the March 13, 2019 visit and their February 1, 2021 testimony. Both further testified that they were estimating the length of the visit.

Drug Enforcement Agency ("DEA") Special Agent Tyler Field testified that he participated in the investigation of Defendant Oscar Torbert along with another DEA agent and District Four Cincinnati Police Department ("CPD") officers. He testified that he observed Torbert's activities outside the Kipling Avenue apartment from a pole camera installed on January 22, 2019 across the street from Torbert's residence. The pole camera had swivel and zoom capabilities, and the zoom feature enabled those monitoring the camera feed to identify faces and license plates. Although the live camera feed was not monitored 24 hours a day, the pole camera recorded constantly, and Field routinely monitored the live feed from his computer while he engaged in other tasks. Field further testified that officers observed Torbert meet briefly in or near cars in front of the Kipling Avenue address two additional times, but the affidavit did not include those two additional meetings.

Regarding other investigatory efforts to link Torbert's residence with drug activity, Field testified that CPD officers made a controlled buy from Torbert in 2018 and conducted a trash pull at Kipling Avenue in early 2019. However, the trash pull did not yield evidence of drug-related activity. Field further testified that the search warrant affidavit referred to only one CI in this investigation, but there were many others involved.

Unbeknownst to Torbert, task force officers employed Global Positioning System ("GPS") monitoring on his cell phone. Field testified that every 15 minutes he received a "ping" providing geo-location information for Torbert's cell phone (and presumably Torbert). No officers conducted live surveillance of Torbert on March 13, 2019. Rather, the GPS monitoring system produced one ping on Ronald Reagan Highway, one ping on Glen Este Place, and then pinged on Vine Street, the site of the traffic stop. Thus, Field did not know Torbert had stopped on Glen Este Place.

Finally, CPD Sergeant Scott Brians testified that he was a detective in the Violent Crime Squad during the investigation in question. According to Brians, he and other officers routinely monitor high crime areas looking for vehicles with heavily tinted windows that travel in specific alleys and streets known for drug trafficking. If they observe a potential traffic violation or illegal level of window tint, officers request a traffic stop.

On March 13, 2019, Brians requested a stop of the silver Accord, not knowing that Torbert—the subject of an ongoing drug trafficking...