Opinion
Crim. No.: 21-30064
2021-03-05
UNITED STATES of America, Plaintiff, v. Jimmie Lee TURNER, III, Defendants.
Matthew A. Roth, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
Matthew A. Roth, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
OPINION AND ORDER DISMISSING COMPLAINT AND DISCHARGING DEFENDANT JIMMIE LEE TURNER, III
ELIZABETH A. STAFFORD, United States Magistrate Judge
A.
In a February 2021 complaint, the government charged Defendant Jimmie Lee Turner, III, with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and possession of a machine gun in violation of § 922(o). ECF No. 1. The Court held a preliminary hearing under Federal Rule of Criminal Procedure 5.1 on March 2, 2021 and found no probable cause that Turner committed the crimes alleged. With this finding, the court "must dismiss the complaint and discharge the defendant." Federal Rule of Criminal Procedure 5.1(f).
B.
At issue during the preliminary hearing was whether there was probable cause that Turner possessed a Glock firearm that Jackson Police Officers found in December 2020 at an apartment building. The ATF agent who testified for the government at the hearing was not the agent in charge or the complaint affiant. All she knew about the case was what she read in the complaint and police report.
The direct examination traced the complaint affidavit. That affidavit says that the officers were at the apartment building because a property manager feared that trespassers were in an abandoned apartment. ECF No. 1. As the officers approached the apartment door, the property manager saw Turner hanging from a balcony and "trying to scale down the side of the building." Id. The officers came back outside to investigate and saw the Glock equipped with a green laser sight and a machine gun conversion kit called a "Glock switch." Id. Seeing the police, Turner re-entered the apartment. Id. An officer detained Turner when he opened the apartment door and stuck his head into the hallway. Id.
According to the affidavit, a thermal image camera (FLIR) revealed that the Glock had a "heat signature much greater than the ambient temperature of 30 degrees Fahrenheit." Id. The affiant said that the Glock's higher temperature meant that it had not been on the ground long enough to cool off and was likely "inside a heated area or on a person's body just before it was found outside." Id. Grass and dirt inside the barrel of the Glock suggested that it had been thrown or dropped on the ground. Id. There were two other people in the apartment with Turner: Jeffrey Jones and Kennedy Branch. Id. Both denied knowing about any firearms. Id. The affidavit also said that, in November 2020, someone accused Turner of robbing him with a black semi-automatic handgun that had a green laser. Id. The affidavit described the firearm used in the November 2020 robbery as matching the description of the Glock found at the apartment the following month. Id. But the affiant also noted that the accuser later asserted his Fifth Amendment rights and refused to testify at the preliminary examination, so the charges against Turner arising from that alleged robbery were dismissed. Id.
On cross-examination, the agent's limited familiarity with the Jackson police reports was quickly exposed. Most critically, the agent was unsure if she had read Officer Baker's report. Because the agent was "more familiar with the complaint than" than with the police reports, she did not know that Baker was the officer who used the FLIR to test the temperature of the Glock. The agent began reading portions of Baker's report during cross-examination, and defense counsel's questioning of the agent about that report raised serious questions about the credibility of the claim that the Glock was warm when Baker tested it with the FLIR. In response to questioning, the agent agreed that Baker reported that, after officers found the Glock, she helped to detain Turner, Branch, and Jones. Baker then drove to the police station to pick up the FLIR and drove back to the apartment to check the temperature of the Glock on the ground. Defense counsel asked if the agent knew that the police station was three miles from the apartment building and that a round trip would take 15 to 20 minutes; the agent did not know.
By reviewing reports during the hearing, the agent was able to confirm that Branch was on two bonds and on probation, and that Jones was on bond for a firearms charge. The agent confirmed that neither Branch nor Jones reported seeing Turner with the Glock; no one saw the Glock in Turner's hands.
Defense counsel's cross-examination of the agent also addressed the suggestion in the complaint affidavit that the Glock found at the apartment building matched the one used in the November 2020 robbery. The complaint described the Glock found in December 2020 as being equipped with a green laser sight and Glock switch. ECF No. 1. But the agent acknowledged on cross-examination that the Glock also had a red laser, and a flashlight; the affidavit did not mention these other features. Id. The November 2020 accuser did not describe the semi-automatic handgun as having a Glock switch, a red laser, or a flashlight. Id. And the affidavit does not even say that the gun used in the November 2020 robbery was described as a Glock; the affidavit says only that the firearm was a "black, semi-auto handgun, with a green laser." Id.
Defense counsel also asked the agent if she knew that the November 2020 charges were dismissed because the accuser said that he had lied about the armed robbery. The agent had no knowledge of the alleged November 2020 robbery beyond the information alleged in the complaint affidavit.
C.
"Probable cause" is not defined in procedural rules or by statute, but it is often described as "a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates , 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The government's burden to establish probable cause at a preliminary hearing is relatively low. United States v. Spencer , No. 2:13-MJ-129, 2013 WL 2417976, at *1 (S.D. Ohio June 3, 2013). But the evidence the government presents at the preliminary hearing must show more than mere suspicion. United States v. Blair , 524 F.3d 740, 748 (6th Cir. 2008) ("Probable cause is a reasonable ground for belief supported by less than prima facie proof but more than mere suspicion.").
To sustain its burden of showing probable cause, the government may rely on hearsay. Rule 5.1(e) ; Fed. R. Evid. 1101(d)(3). But for hearsay to support probable cause for an arrest, there must be a showing that the hearsay is reliable under the totality of the circumstances. Gates , 462 U.S. at 233, 103 S.Ct. 2317 (tipster's information must have indicia of reliability to support probable cause); Mosley v. City of Chicago , 614 F.3d 391, 399 (7th Cir. 2010) ("We look to the totality of the circumstances when considering whether the officers had probable cause to arrest and initiate proceedings against a defendant."). The indicia-of-reliability test is more commonly applied when determining whether probable cause supports an arrest warrant. But any argument that the government can rely on hearsay evidence with inadequate indicia of reliability to support probable cause to bind a defendant over for trial cannot be countenanced.
The government also may not rely exclusively on the complaint affidavit to show probable cause at a preliminary hearing. "For purposes of Rule 5.1, the probable cause determination is made de novo relative to the arrest, based on the facts and circumstances as they exist at the time of the preliminary hearing." United States v. Perez , 17 F. Supp. 3d 586, 593 (S.D. Tex. 2014). The magistrate judge's role at the hearing is to examine whether probable cause exists, which requires more than "making sure that the complaint states facts constituting an offense." 21 Am. Jur. 2d Criminal Law § 533 (citing Jaben v. United States , 381 U.S. 214, 218–19, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965) ). In other words, the judge's function at the preliminary hearing is not to simply "rubberstamp the complaint." Jaben , 381 U.S. at 218, 85 S.Ct. 1365.
The Honorable Arthur Burnett Sr., a retired Superior Court of the District of Columbia judge who also served as a federal magistrate, explained in an interview that preliminary hearings are meant to be meaningful.
The title "magistrate" was changed to "magistrate judge" in the Judicial Improvements Act of 1990. Pub. L. No. 101-650, § 321, 104 Stat. 5089 (1990) ("After the enactment of this Act, each United States magistrate ... shall be known as a United States magistrate judge.").
I turned preliminary hearings into meaningful exercises and not just a rubber stamp proceeding for the police or the prosecution. Indeed, I set up a test case— Coleman v. Burnett [477 F.2d 1187 (C.A.D.C. 1973)] —in the United States Court of Appeals for the District of Columbia Circuit in which Chief Judge Spottswood Robinson established the legal principle that defense counsel has the right to subpoena witnesses to a preliminary hearing, if such a witness would negate probable cause, showing, for example, that no crime occurred or that the government had the wrong person.... The principles of this case were later adopted in the formal rules for U.S. magistrate judges system.
Myrna S. Raeder, In the Time of Brown: An Interview with Judge Arthur L. Burnett, Sr. , Crim. Just., Fall 2004, at 20, 23. A defendant's right to assistance of counsel at a preliminary hearing is also relevant. United States v. Perez , 17 F. Supp. 3d 586, 594 (S.D. Tex. 2014) (citing Coleman v. Alabama , 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ). To effectuate that right, the defendant may cross-examine government witnesses about the facts supporting or refuting probable cause. Id. ; Rule 5.1(e).
The presiding magistrate judge may limit the scope of cross-examination to issues that address probable cause. Perez , 17 F. Supp. 3d at 594. "Although the line with permissible refutation of probable cause is often thin, the preliminary hearing is not a discovery device." Id. The preliminary hearing is also not the forum for defense counsel to object that evidence was unlawfully acquired. Rule 5.1(e).
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D.
Applying these principles, the Court finds that the government failed to meet its burden of showing probable cause that Turner possessed the Glock at issue.
First, the agent knew too little about the case for her testimony to have the indicia of reliability. The agent was honest; she admitted that she relied mostly on the complaint affidavit and had not read Baker's report before the hearing. As a result, the agent was unable to answer many of the defense counsel's questions on cross-examination. Most critically, the agent could not explain how the Glock could have remained warm while being on the ground during the period when Baker helped detain Turner, Branch, and Jones and then made a round-trip to and from the police station before using the FLIR to check the warmth of the Glock. The allegation that the Glock was still warm would have been the best indication that Turner had tossed it to the ground; he was the only person seen on the balcony just before the Glock was discovered. But the Court finds unreliable the agent's hearsay testimony that the Glock remained warm—on the ground and in 30-degree weather—from the time that it was discovered until Baker returned from the police station.
The other evidence the government relied on does not rise above mere suspicion. Nobody reported seeing Turner hold the Glock or toss it. The November 2020 accusation that Turner used a similar firearm to commit an armed robbery does not show probable cause because (1) the firearm alleged to have been used during that robbery did not have most of the features of the Glock found at the apartment building; and (2) the accuser either asserted his right under the Fifth Amendment to not testify or recanted the accusation that Turner robbed him.
The Court also finds that the government could not meet its burden of showing probable cause by relying only on the complaint and the testimony of a witness who knew little about the case beyond the allegations in the complaint. The agent's testimony was particularly unreliable because the complaint affidavit was also the product of hearsay; the affiant is an ATF agent who relied on the accounts of the Jackson police officers who conducted the investigation at the apartment building. Under different facts, a witness may be able to provide reliable hearsay testimony based almost exclusively on the complaint affidavit. Here, the layers of hearsay were too thick for the agent's testimony to support probable cause.
The government's use of a witness who knew little about the case undermined Turner's right to a meaningful preliminary hearing and to meaningfully cross-examine the witness about the facts of the case. The government effectively asked the Court to improperly rubberstamp the allegations of the complaint. This the Court will not do.
Thus, the complaint against Turner is dismissed and he is discharged.