United States v. Tucker
| Decision Date | 07 August 2018 |
| Docket Number | No. 17-3503,17-3503 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CURTIS EARL TUCKER, JR., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0396n.06
On March 29, 2017, a federal grand jury indicted Curtis Earl Tucker, Jr. for possessing with the intent to distribute more than 500 grams of a methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and for being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Tucker subsequently filed a motion to suppress evidence seized from two residences, which the United States District Court for the Northern District of Ohio granted. The government now appeals that order, arguing that investigators acted in good faith when they executed search warrants for those residences.
For the reasons outlined below, we affirm the district court's grant of Tucker's motion to suppress.
From July 2016 until February 2017, law enforcement agents electronically surveilled Camiolo Rocha-Ayon, Jr., a suspected narcotics trafficker living in Canal Winchester, Ohio. During that timeframe, officers observed Rocha-Ayon engaging in behavior that was indicative of drug trafficking. On multiple occasions, for instance, Rocha-Ayon left his residence at 5126 Algean Drive in his day-to-day vehicle, drove to a second residence at 5387 Bradshaw Street, Canal Winchester, Ohio, stayed only for a short while, and then departed in a car that he normally did not use.1 At least once, Rocha-Ayon drove this second vehicle, a white Infiniti, to a truck stop, where an unidentified individual removed a duffel bag from the car's trunk and walked away.
On February 17, 2017, Rocha-Ayon once again left his Algean Drive home, drove to the Bradshaw Street residence, and changed vehicles. After stopping at a Columbus, Ohio, sporting-goods store to purchase a vacuum sealer and sealing bags, Rocha-Ayon traveled to 791 Saxon Avenue, Akron, Ohio and parked in the driveway. Some time after Rocha-Ayon's arrival, a white van registered to Tucker also pulled up to the residence; and although the van left shortly thereafter, it returned at 12:07 p.m. At 12:59 p.m., Rocha-Ayon departed in his white Infiniti and, on his way back to Canal Winchester, stopped at an outlet mall. Rocha-Ayon then proceeded to his Algean Drive residence, where he stayed for an unspecified period of time before returning to Bradshaw Street to switch back into his day-to-day vehicle.
Two days later, on February 19, Rocha-Ayon began this sequence anew. After leaving his Algean Drive residence in his day-to-day car, Rocha-Ayon drove to Bradshaw Street and switchedvehicles. He then made his way to an area Wal-Mart, where he was observed placing a tan duffel bag into the trunk of his Infiniti. Approximately two minutes after he arrived at the Wal-Mart, Rocha-Ayon departed. This time, however, Rocha-Ayon did not reach his intended destination. While traveling on highway I-270, he was stopped by the Ohio State Highway Patrol for a moving violation. When a K-9 drug unit alerted to the odor of narcotics, his car was searched, and roughly 11 kilograms of cocaine was discovered in the tan duffel bag. A receipt for bulk plastic bags and a vacuum sealer, dated February 17, 2017, was also found.
Later that day, federal search warrants were issued for Rocha-Ayon's Canal Winchester residences. At the Bradshaw Street location, investigators found a vacuum sealer, scales, United States currency, wire-transfer receipts, and empty drug packaging, while at the Algean Drive residence, they discovered approximately $223,000 in U.S. currency and eight firearms.
Based upon this evidence, Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence "to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine." Affidavit for Search Warrant for 791 Saxon Avenue ¶ 24. He further speculated that "a portion of the cocaine seized" from Rocha-Ayon was intended for Tucker, that "at least a portion of the currency recovered" from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Ibid. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor's Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was theaccount holder for the residence's electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine2; and that the affidavit had been presented to and approved by "the Akron Police Legal Advisor." Id. at ¶¶ 25-27, 33.
On March 8, 2017, an Akron Municipal Court judge issued a search warrant for the Saxon Avenue house, permitting the seizure of:
[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.
Search Warrant for 791 Saxon Avenue. A search was conducted the next day, at which time officers recovered several empty vacuum-seal bags, multiple handguns (one of which was loaded), a hydraulic press with a mold, and United States currency. Investigators also found Tucker's birth certificate, vehicle registrations, and Summit County Fiscal Office records identifying him as the owner of 2123 Penguin Avenue, Akron, Ohio.
That same day, investigators obtained a records-and-documents search warrant for the Penguin Avenue residence. In addition to reciting the information contained in the Saxon Avenue affidavit and listing the evidence seized from that location, the Penguin Avenue affidavit noted that Tucker had forwarded the utilities bill for the Saxon Avenue residence to 2123 Penguin Avenue. It further stated that in April 2016, the Summit County Sheriff's Office had received areport of a domestic dispute at the address and that Tucker had been identified as a participant in it. On March 9, 2017, shortly after the warrant was issued, a search of the residence was conducted, during which three guns, United States currency, and four kilograms of methamphetamine were discovered.
On April 24, 2017, Tucker moved to suppress the evidence seized from the Saxon Avenue and Penguin Avenue residences on the grounds that the affidavits offered in support of the search warrants were "devoid of any evidence connecting the residences to the drug dealing activity." Tucker accordingly claimed that the affidavits failed to establish probable cause and that the good-faith exception did not apply.
After holding a suppression hearing, the district court agreed with Tucker. United States v. Tucker, No. 5:17-CR-105, 2017 WL 1950692, at *1 (N.D. Ohio May 11, 2017). Regarding the Saxon Avenue affidavit, the court held that it was insufficient to establish probable cause because it did "not say that Rocha-Ayon or Tucker ever went into the Saxon Avenue location on February 17"; said "almost nothing about criminal activity at the house other than that Rocha-Ayon had parked in the house's driveway"; relied on a vague, unsubstantiated, stale tip regarding drug dealing at the house; "contained no evidence that [Tucker] distributed narcotics from the . . . location, that he used the . . . location to store narcotics, or that any suspicious activity had taken place there"; and "document[ed] just a few instances when Rocha-Ayon drove the Infiniti for drug-related purposes." Id. at *5-6 () (citation omitted). The court also found that the warrant "fail[ed] to meet the Fourth Amendment's particularity requirement" because it "sanction[ed such] a wide-ranging exploration of [the] Saxon house" that "[o]fficers could not 'readily ascertain which items were subject to seizure.'" Id. at *7 (quoting United States v.Anderson, 555 F. App'x 589, 595 (6th Cir. 2014)). Finally, the court held that the good-faith exception to the exclusionary rule did not apply to the evidence seized from the Saxon Avenue residence because the affidavit was "so bare bones that it was objectively unreasonable for officers to rely on" it. Id. at *8. Specifically, the court faulted the affidavit for relying on the erroneous assumption that "because Rocha-Ayon, a drug dealer, visited Tucker's house once, drug activity must have taken place there." Ibid.
In light of these considerations, the district court further held that "evidence from the Saxon search [could not] provide the underlying basis for the Penguin house's search warrant." Id. at *7. Stripped of this evidence, the court found that the Penguin Avenue affidavit did not "show[ that the property had] any connection to drug dealing or to records of drug dealing" and, thus, that probable cause for the search was lacking. Id. at *8 (emphasis added). Moreover, because the court found that the Penguin Avenue affidavit "only contained 'suspicions, beliefs, or conclusions,...
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