Opinion
Case No. 1:22-cr-00052
2022-08-22
UNITED STATES of America, Plaintiff, v. Matthew HUBER, Defendant.
Leslie S. Johns, Ashley Jones Law, Cleveland, OH, Richard J. Perez, Rosplock & Perez, Willoughby, OH, for Defendant. Patrick P. Burke, Henry F. DeBaggis, II, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Plaintiff.
Leslie S. Johns, Ashley Jones Law, Cleveland, OH, Richard J. Perez, Rosplock & Perez, Willoughby, OH, for Defendant. Patrick P. Burke, Henry F. DeBaggis, II, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Plaintiff. OPINION AND ORDER J. Philip Calabrese, United States District Judge
Defendant Matthew Huber moves to suppress all evidence obtained during a search of his residence pursuant to a warrant signed by a State court judge and requests an evidentiary hearing. The United States opposes the motion. The Court held oral argument on the motion on July 22, 2022 and took the motion under advisement. This case presents close and difficult questions, about which reasonable jurists could disagree and reach contrary conclusions. But the record shows that the police had probable cause based on a statement from a third-party some two months before the search. Contrary to Defendant's argument, the information in that statement was not stale, such that when Mr. Huber's probation officer confirmed that he was residing at the house in question, there was probable cause for a search. For these reasons, as more fully explained below, the Court DENIES Defendant's motion to suppress and sees no reason to hold an evidentiary hearing to test the warrant at issue.
FINDINGS OF FACT
On Defendant's motion to suppress, the record establishes the following relevant facts. The Court takes these facts from the affidavit supporting the search warrant at issue. Accordingly, the Court recognizes that these facts present a one-sided view of the case and might not carry the day at trial. Nevertheless, they provide the record for purposes of the motion before the Court. Finally, the Court limits this discussion of the facts to those it finds relevant to a determination of probable cause.
On February 22, 2021, Detective Christopher Giordano of the Cleveland Heights Police Department, who also serves on the local U.S. Drug Enforcement Administration Task Force, sought a search warrant for a residence in South Euclid, Ohio. (ECF No. 17-2.) Based on Detective Giordano's affidavit, a judge of the Cuyahoga County Court of Common Pleas issued a search warrant for the residence. (Id., PageID #121.)
A. Background
By way of background, during the relevant times, Defendant Matthew Huber was on probation in Lake County. (ECF No. 17-2, ¶ 7, PageID #115.) Mr. Huber reported his address as 8707 Clark Avenue, Cleveland, Ohio. (Id.) But an anonymous tip in November 2020 reported that Mr. Huber was living on Colony Road in South Euclid. (Id., ¶ 1, PageID #113.)
B. Statements Implicating Mr. Huber
While conducting surveillance of the South Euclid residence, a police officer saw a gold Toyota Avalon pull into the driveway then pull out approximately twenty minutes later. (Id., ¶ 9.) During a subsequent traffic stop of the vehicle, Harvey Jones was identified as the driver. (Id., ¶¶ 9 & 11, PageID #115 & #116.) Jones consented to a search of the vehicle after admitting to possessing two small bags of marijuana inside the trunk. (Id., ¶ 11, PageID #116.) An officer arrested Jones and towed his vehicle. (Id., ¶ 12, PageID #116.) During an inventory search of the vehicle, the police found $25,000 inside a bag, a loaded pistol, a suspected drug ledger, three iPhones, and a plastic bag containing 128.21 grams of cocaine. (Id., ¶¶ 12 & 13.)
DEA agents interviewed Jones on two separate occasions. During the first interview on December 16, 2020, Jones stated that he "knew the white guy who lived on Colony Road as Chad[.]" (Id., ¶ 17, PageID #117.) DEA agents conducted another interview on the following day. (Id., ¶ 18, PageID #118.) During that interview, Jones stated that he "sold his friend Champ [ ] and a white male approximately five sacks of marijuana" inside the South Euclid residence. (Id.) Jones then identified Mr. Huber as the "white guy" involved in the marijuana sale with Champ. (Id.) Also, Jones stated that approximately one week before the marijuana sale, he "sold Champ [ ] a half kilo of cocaine for $30,000" inside the South Euclid residence. (Id.)
C. The Home Visit
On February 22, 2021, the Lake County Probation Department conducted a home visit at the South Euclid residence pursuant to probation policy and procedure. (Id., ¶¶ 24 & 25 PageID #119.) Specifically, Probation Supervisor Craig Berry, Probation Officer Jillian Gibson, and officers from the South Euclid Police Department went to the residence in South Euclid. (Id., ¶ 25.) According to the search warrant affidavit, Kristy Cargill, Mr. Huber's girlfriend, opened the door and confirmed that Mr. Huber resided there. (Id.) "A further search of the second floor . . . bedroom/office area" that Mr. Huber and Cargill used turned up, among other things, a blue tub containing a white powdery substance, several rubber-banded amounts of cash, a small plastic bag suspected of containing marijuana, a digital scale containing white powdery residue, nine bottles of sleeping pills, and mail addressed to Mr. Huber. (Id.)
During the home visit, Detective Giordano observed Mr. Huber driving near the residence. (Id., ¶ 26, PageID # 120.) Later, South Euclid police officers stopped Mr. Huber for a traffic violation. (Id.) The officers detained Mr. Huber for a probation violation and drug investigation. (Id.) Then, they obtained the warrant at issue.
STATEMENT OF THE CASE
A grand jury returned a four-count indictment charging Defendant with: (1) conspiracy to possess with intent to distribute cocaine and psilocyn; (2) possession with intent to distribute cocaine; (3) possession with intent to distribute psilocyn; and (4) possession of firearms by a convicted felon. (ECF No. 1.)
Defendant filed a motion to suppress evidence obtained from the search of the residence. (ECF No. 17.) He maintains that probable cause did not support the search warrant. He also requests a Franks hearing. The United States opposes the motion. (ECF No. 18.) In addition to arguing that probable cause supports the warrant, the United States argues that, in any event, the good faith exception applies. (Id., PageID #130.)
CONCLUSIONS OF LAW
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. Probable cause means "reasonable grounds for belief, supported by less than prima facie proof, but more than mere suspicion" and exists "when there is a fair probability given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Lattner, 385 F.3d 947, 951 (6th Cir. 2004) (cleaned up).
A judge's determination of probable cause receives great deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The issuance of a warrant is not scrutinized after the fact under a de novo standard, which would be inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to warrants. Id. (quotation omitted). The issuing judge must make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. 2317. When reviewing that determination, the Court simply ensures that the judge had a substantial basis for concluding that probable cause supported the warrant. Id. at 238-39, 103 S.Ct. 2317. "Review of the sufficiency of the evidence supporting probable cause is limited to the information presented in the four corners of the affidavit." United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).
Defendant argues that the probation officers did not have reasonable suspicion to conduct the initial search of his South Euclid residence. (ECF No. 17, PageID #91-97.) Because the initial search of the residence was illegal, Defendant argues, the evidence obtained in that search is inadmissible and should not have been included in the search warrant affidavit. (Id., PageID #101-02.) Further, based on the totality of the circumstances, Defendant asserts that probable cause did not exist to support the issuance of the search warrant. (Id., PageID #102-03.)
I. Initial Search of the South Euclid Residence
Ordinarily, the search of an individual's residence requires a warrant supported by probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (citation omitted). "However, the Supreme Court has made clear that the nature of the relationship between state actors and individuals subject to state supervision in lieu of or following release from prison alters the relevant analysis under the Fourth Amendment." United States v. Herndon, 501 F.3d 683, 687 (6th Cir. 2007).
In the context of probation, the Supreme Court has used two different approaches under which the warrantless search of a probationer's home may still meet the requirements of the Fourth Amendment. See Griffin, 483 U.S. at 873, 107 S.Ct. 3164; United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). First, in Griffin, the Supreme Court held that a State policy allowing searches of probationers upon a finding of "reasonable grounds" satisfied the Fourth Amendment. 483 U.S. at 872-73, 107 S.Ct. 3164. So long as a warrantless search is carried out "pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement under well-established principles," it is consistent with the Constitution, and evidence obtained during the search is properly admitted. Id. at 873, 107 S.Ct. 3164. Second, the Supreme Court later ruled that a court should evaluate the reasonableness of a warrantless search of a probationer's home in light of the totality of the circumstances "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental issues." Knights, 534 U.S. at 119, 122 S.Ct. 587. "If a warrantless search is reasonable under either Knights or Griffin, it need not pass muster under the other." United States v. Payne, 588 F. App'x 427, 431 (6th Cir. 2014) (citing United States v. Herndon, 501 F.3d 683, 688 (6th Cir. 2007)).
Griffin "govern[s] [the Fourth Amendment] inquiry" where a "search [is] made pursuant to a state [statute or] policy." United States v. Tessier, 814 F.3d 432, 433 n.1 (6th Cir. 2016). In contrast, the "totality-of-the-circumstances test" from Knights "governs [the] inquiry" where a "search [is] made pursuant to a condition of probation." Id. (applying the Knights totality-of-the-circumstances test to search of a probationer pursuant to a probation condition); Herndon, 501 F.3d at 689-90 (same). The United States argues that Section 2967.131 of the Ohio Revised Code, which authorizes warrantless searches of those on supervision, authorized the search under Griffin. But that statute governs post-release control and those under the supervision of the Ohio Adult Parole Authority. The record establishes that Mr. Huber was on probation or at least under the supervision of the Lake County Probation Department, not the Ohio Adult Parole Authority. Therefore, this statute cannot supply the legal foundation for the search.
Instead, Section 2951.02(A) authorizes probation officers to search a probationer, with or without a warrant, "if the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with . . . the conditions of the felony offender's" probation. See also State v. Nallen, No. 2012 CA 24, 2013-Ohio-3284, ¶ 3 & n.1 (Ohio Ct. App.) (noting the similarities between Section 2967.131 and Section 2951.02). "Ohio law permits a probation officer to conduct a warrantless search of a probationer's person or home if an officer has 'reasonable grounds' to believe the probationer failed to abide by the law or by the terms of probation." State v. Sowards, No. 06CA13, 2007-Ohio-4863, ¶ 25 (Ohio Ct. App.) (quoting Ohio Rev. Code § 2967.131(C) in an appeal involving a probationer, not a parolee). Because a State statute supplies the legal basis for the initial search at issue, the Court concludes that Griffin supplies the proper framework to analyze that initial search of the South Euclid residence. Accordingly, that search does not offend the Fourth Amendment so long as reasonable grounds supported it.
I.A. Reasonable Grounds to Search the Residence
The Sixth Circuit uses a two-step inquiry to determine the applicability of a Griffin probationer search. "First, courts examine whether the relevant regulation or statute pursuant to which the search was conducted satisfies the Fourth Amendment's reasonableness requirement. If so, courts then analyze whether the facts of the search itself satisfy the regulation or statute at issue." United States v. Loney, 331 F.3d 516, 520 (6th Cir. 2003) (citations omitted). The Sixth Circuit has held that Section 2951.02(A) of the Ohio Revised Code satisfies the Fourth Amendment's reasonableness requirement. United States v. Fletcher, 978 F.3d 1009, 1015 (6th Cir. 2020).
Therefore, the dispute centers on whether the facts of the search satisfy the governing Ohio statute. To conduct a search, Ohio law requires that the probation officer has "reasonable grounds" that the defendant is either in violation of the law or of the conditions of his probation. Sowards, 2007-Ohio-4863, ¶ 25. The Sixth Circuit views reasonable grounds synonymously with reasonable suspicion for Fourth Amendment purposes. See United States v. Goliday, 145 F. App'x 502, 505 (6th Cir. 2005). "Reasonable suspicion is based on the totality of the circumstances and has been defined as requiring 'articulable reasons' and 'a particularized and objective basis for suspecting the particular person [is engaged in] criminal activity.' " United States v. Payne, 181 F.3d 781, 788 (6th Cir. 1999) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
Applying this framework, the Court finds that the face of the affidavit provides reasonable suspicion for the Lake County Probation Department to believe that Defendant violated the law or the conditions of his probation. Mr. Huber listed Clark Avenue in Cleveland as his residence. But various evidence provided at least reasonable suspicion to believe that Mr. Huber was living at the house in South Euclid. For example, a trash pull there found mail addressed to Mr. Huber at that address. (ECF No. 17-2, ¶¶ 3 & 6, PageID #114 & #115.) Coupled with surveillance observing Mr. Huber using the South Euclid residence in a manner consistent with one who lives there (id., ¶ 14, PageID #117), the record shows that reasonable suspicion supported the Lake County Probation Department's initial search. Moreover, by this point in time, Jones provided a statement to law enforcement that Defendant was selling drugs out of the house in South Euclid. (Id., ¶ 18, PageID #118.)
I.B. Defendant's Arguments
In arguing that reasonable suspicion did not exist for the initial search, Defendant attacks the sufficiency of the evidence and the scope of the search. These arguments are unavailing.
First, Defendant attacks each item of evidence separately. (See ECF No. 17, PageID #94-96.) Each item—standing alone—may be insufficient to establish reasonable suspicion. For example, as Defendant argues, "a person's criminal record alone does not justify a search of his or her home." (Id., PageID #94) (citing Payne, 181 F.3d at 790-91). Likewise, an uncorroborated tip—standing alone—does not provide reasonable suspicion. See United States v. Comrie, 136 F. App'x 883, 894 (6th Cir. 2005). However, neither of these facts are necessary for a determination of reasonable suspicion here. In this case, the Lake County Probation Department had reasonable suspicion to believe that Mr. Huber violated the terms of his supervision, at the very least by failing to list his correct address.
Next, Defendant argues that the scope of the home visit was unreasonable. (ECF No. 17, PageID #96-97; ECF No. 19, PageID #145-47.) Without question, supervising officers do not have "carte blanche to enter the home to conduct a 'home visit.' " United States v. Colon, No. 1:18-cr-350, 2018 WL 5815815, at *4 (N.D. Ohio Nov. 7, 2018). Indeed, reasonable suspicion must supply the basis for the areas of the home searched. Loney, 331 F.3d at 523. That is, there must be reasonable suspicion that the areas to be searched contain evidence of the violation.
At this point in the analysis, the search warrant affidavit contains a critical and troubling omission. Specifically, the affidavit provides that "[u]pon entering the residence . . . Cargill advised that Matthew Huber resided at [the South Euclid residence]. A further search of the second floor south east bedroom/office area by members of the Lake County Probation Department" resulted in uncovering incriminating evidence. (ECF No. 17-2, ¶ 25, PageID #119.) Without question, the affidavit omits important information. After Cargill advised that Mr. Huber resided there, "a further search" found evidence that led the authorities to seek a warrant. But the affidavit does not say whether an initial search was conducted or whether anything incriminating was found in plain view. Nor does it provide any reason to believe Cargill consented to a search of the bedroom/office area she and Mr. Huber used. It appears that this information was removed from an earlier draft of the affidavit.
Under ordinary circumstances, this omission might well fall short of the probable cause necessary to support the issuance of a warrant, particularly for the search of a house. For three reasons, the Court concludes that reasonable suspicion nonetheless supports the initial probation search on the facts and circumstances presented. First, Mr. Huber's status as a probationer relaxes the Fourth Amendment standard. Again, without this fact, the Court doubts that the affidavit would support the issuance of a warrant. Second, the authorities had reason to believe Mr. Huber was engaged in drug sales at the South Euclid residence. (Id., ¶ 18, PageID #118.) Third, a State court judge reviewed the affidavit and relied on it in issuing a warrant. Even though the Court harbors doubts that the State court judge paid particularly close attention to the shortcomings of this critical paragraph, that judge's determination is entitled to deference. See United States v. Moore, 999 F.3d 993, 996 (6th Cir. 2021). For these reasons, the Court cannot say that the search of the bedroom and office area was unreasonable. "Ohio probation officers routinely conduct home visits to ensure that probationers comply with the terms of their supervision." Colon, 2018 WL 5815815, at *4 (citation omitted).
II. Probable Cause to Support the Search Warrant
Looking past the initial probation search of the residence, the Court finds that probable cause supports the issuance of the warrant. Simply put, a third party (Jones) gave a statement to the police in December 2020 that Mr. Huber was conducting drug transactions out of the South Euclid residence involving, at least, five sacks of marijuana and a half kilo of cocaine worth approximately $30,000. (ECF No. 17-2, ¶ 25, PageID #118.) Other information corroborated the fact that Mr. Huber resided at that address. For example, trash pulls showed that he received mail there (id., ¶ 6, PageID #115) and surveillance confirmed he treated that house as his residence (id., ¶ 14, PageID #117). Both of these corroborating facts occurred within a day of Jones' statement. (Id., ¶¶ 6 & 14, PageID #115 & #117.)
Defendant argues this information from December 2020 was stale by the time of the probation visit on February 22, 2021. Defendant focuses primarily on the length of time that lapsed between December 16 and 17, 2020 and the probation visit in February 2021. By December 17, 2021, the police likely had probable cause to seek a warrant. But the Court's role in evaluating the lawfulness of the search is not to substitute its judgment for that of investigators. As a matter of law, the inquiry focuses on the staleness of this information in supporting a determination of probable cause.
Because "drugs are usually sold and consumed in a prompt fashion," United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009), information about contraband can quickly "grow stale over time," United States v. Church, 823 F.3d 351, 356 (6th Cir. 2016). If the length of time were the only consideration, then the Court might well discount or exclude as stale all information in the affidavit other than what was found in the initial probation search. But the length of time is "by no means [the] controlling issue." United States v. Leaster, 35 F. App'x 402, 406 (6th Cir. 2002). "The [staleness] issue is to be resolved not by arbitrarily counting days on a calendar, but rather by determining whether the information offered in the affidavit, taking into account both its age and any corroboration, suffices to establish probable cause to search a particular place." United States v. Costello, 596 F. Supp. 2d 1060, 1065 (E.D. Mich. 2009) (citing United States v. Spikes, 158 F.3d 913, 923-24 (6th Cir. 1998)).
On the record presented, the Court finds that the information summarized in the affidavit, dating back some two months before the decision to seek a warrant, was not stale. Again, though that information might approach the outer bounds of the time that would support a determination of probable cause, it supplies reason to believe drug trafficking was occurring at the South Euclid residence at a sufficient scale that evidence of it would still be found in mid-February 2021—even absent the initial probation search.
Finally, Defendant objects to using the anonymous tips contained in the affidavit as unreliable. An anonymous tip alone "might fall short of probable cause, but an anonymous tip that is corroborated by independent police work may well suffice." United States v. Sheckles, 996 F.3d 330, 341 (6th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 717, 211 L.Ed.2d 404 (2021) (cleaned up). Here, the Court disregards the anonymous tips in analyzing probable cause in the search warrant affidavit. Even disregarding those tips, the affidavit contains sufficient evidence to support a finding of probable cause.
III. Good-Faith Exception
Because probable cause supports the search of Defendant's residence, the Court need not determine, in the alternative, whether the good-faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. IV. Request for Franks Hearing
Finally, Defendant contends that the Court should set aside or look behind portions of the affidavit under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because it recklessly disregards the truth in material respects. (ECF No. 17, PageID #104.) Specifically, Defendant asserts that Detective Giordano recklessly disregarded the truth when he failed to investigate the observations made by the Lake County Probation Department during the initial search of the South Euclid residence. (Id.) Further, Defendant argues that the search warrant affidavit omits material facts for the purpose of misleading the judge to issue the warrant. (Id., PageID #105.) Based on these allegations and arguments, Defendant requests a Franks hearing. (Id., PageID #106.)
A defendant is entitled to an evidentiary hearing, known as a Franks hearing, if he "(1) 'makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,' and (2) 'the allegedly false statement is necessary to the finding of probable cause.' " United States v. Green, 572 F. App'x 438, 441 (6th Cir. 2014) (quoting United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001)). "To mandate an evidentiary hearing, [Defendant's] attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof." Franks, 438 U.S. at 171, 98 S.Ct. 2674. The Sixth Circuit has characterized this standard as a "heavy burden." United States v. Bateman, 945 F.3d 997, 1008 (6th Cir. 2019). In the case of a material omission, as opposed to an allegedly false affirmative statement, a defendant faces a higher bar to obtain a hearing. United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008). "[A] Franks hearing is only merited in cases of omissions in 'rare instances.' " Graham, 275 F.3d at 506 (citation omitted).
Here, Defendant identifies the following alleged material omissions: (1) the tub containing a white powdery substance was labeled "LS-69 Concentrated Carpet and Room Odorizer"; (2) the purpose of the initial search of the South Euclid residence was to verify Defendant's residence; and (3) Defendant was not present during the initial search. (ECF No. 17, PageID #104-05.) These assertions do not cross the high bar warranting a Franks hearing. Indeed, the third is included in the affidavit (see ECF No. 17-2, ¶ 26, PageID #120), and the Court has assumed that the initial search related at least in part to verifying Mr. Huber's residence.
Even with the omissions, the Court finds that the affidavit provided probable cause for the State court judge to issue a search warrant for the reasons already explained. Therefore, this case does not present the rare circumstance justifying a hearing, and Defendant has not met the high bar for a Franks hearing.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant's motion to suppress and request for an evidentiary hearing. (ECF No. 17.)
SO ORDERED.