Opinion
No. 5:20-cr-128-DCR-MAS-1
2021-07-01
UNITED STATES of America, Plaintiff, v. Ruben A. MOLINA, Defendant.
Rajbir Datta, AUSA, Roger West, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
Rajbir Datta, AUSA, Roger West, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
MEMORANDUM OPINION AND ORDER
Danny C. Reeves, Chief Judge
Defendant Ruben Molina has filed a motion to exclude all evidence seized pursuant to a search of his residence on January 19, 2020, and a subsequent search of a cell phone seized from his co-defendant, Nathanael Morales. [Record No. 85] The motion was referred to United States Magistrate Judge Matthew A. Stinnett for issuance of a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Stinnett held evidentiary hearings on June 8, 2021, and June 11, 2021. On June 18, 2021, he issued a R & R indicating that Molina's motion to suppress should be denied. [Record No. 115] Molina has filed objections to the R & R. [Record No. 118] Following careful review of the matter, the Court will deny the motion to suppress.
Molina filed a motion to enlarge the time for filing objections, as he filed them a day late. [Record No. 119] Counsel for Molina indicates that, when finalizing the brief, she discovered authority that had not been cited previously and was "overtaken by the late hour." While it appears this issue could have been avoided by better planning, the modest extension will be granted.
Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which timely objections are made, 28 U.S.C. § 636(b)(1)(C), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn , 474 U.S. 140, 150 (1985).
I.
Defendant Ruben Molina called 9-1-1 on January 19, 2020, reporting that multiple individuals had overdosed at his residence at 3861 Ormesby Place in Lexington, Kentucky. Emergency responders were already on scene when Lexington Police Officer Rebecca Saylor arrived. [Record No. 116, p. 90] Saylor observed two individuals, later identified as Ruben Corrales and Ulises Duarte, who appeared to be under the influence of drugs, being assisted by emergency response personnel. Molina denied knowing what substance the individuals had taken. After receiving Molina's permission to "check [the] bathrooms and stuff," Saylor found suspected marijuana in a bathroom near the living room where one of the overdosed individuals was sitting.
A third overdosed individual, Defendant Nathanael Morales, was transported to the hospital. [Record No. 116, p. 39]
Lexington Police Sergeant Brian Jared arrived shortly thereafter. Upon entering the house, Jared saw a large industrial tape gun laying in the doorway. And inside the foyer he observed a large industrial trash bag with used rubber or latex gloves laying on top of the trash. There was also a "nook" or "mini office" in the kitchen which contained a large box of latex gloves. Id. p. 18.
Molina, who was sitting at the kitchen table, explained that he had gone out to pick up breakfast and the individuals were non-responsive when he returned. Officers were skeptical of this story because there were multiple partially-eaten plates of food from a First Watch restaurant on the kitchen island. Id. pp. 20, 43. Molina denied knowledge of any narcotics use even though the overdose victims were revived with Narcan, which is only effective for opioid usa/abuse. Id. p. 48-49.
Jared asked the other officers on the scene to "make sure that there's nobody else in [the] house, upstairs, downstairs, or on the main level that's down or overdosed." Sergeant Jared explained at the suppression hearing that he was concerned about additional overdose victims or possibly leaving a child unattended in the house. Jared himself went to the basement to check for other individuals. In the basement, he noticed smoked marijuana blunts laying in plain view, as well as a large pile of trash in the corner. Id. p. 16.
Jared also performed a sweep of the upstairs. He explained that the house was very large and he was not able to confirm with the other officers which rooms had already been checked.
Officers also observed that Molina had three cell phones on his person. At some point, Lexington Police Officer Chaz Grider forcibly detained Molina and removed one of the cell phones from him as he began deleting text messages from the phone. Id. p. 46. Based on the circumstances and items observed, Jared notified Detective Brian Cobb of the Lexington Police Department's narcotics enforcement unit. Id. at 22. Cobb testified that he smelled the odor of burnt marijuana upon entering the house. Jared showed Cobb the suspected marijuana located by Officer Saylor, as well as the tape gun, large trash bag, and latex gloves in the kitchen area. Cobb also observed streaks on a dining room table that appeared to have recently been wiped down with a wet rag. Id. p. 43. Cobb noted that one of the overdose victims was lying next to this table.
Additionally, Cobb observed two security cameras on the exterior of the house—one above the front entry door and one above the garage doors. Officers also located a wireless, motion-activated trail camera mounted in a tree in the median several houses down from Molina's residence. Detectives learned through police databases that Molina had several previous narcotics trafficking charges, including trafficking in fentanyl, and had served a federal prison sentence in the past. Additionally, Ruben Corrales had prior charges for trafficking narcotics including marijuana and cocaine. Id. p. 49.
Based on all of these facts, Cobb applied for and received a search warrant for the residence. On execution of the search warrant, officers recovered approximately 14 pounds of marijuana edibles and evidence of drug trafficking, including seven cell phones. Id. p. 52. On January 19, 2020, Molina was charged in the Fayette Circuit Court with trafficking in marijuana, greater than five pounds, and possession of drug paraphernalia. See Case No. 20-CR-328-001. Molina posted bond and was released the following day.
On January 21, 2020, law enforcement obtained search warrants for each of the phones that had been seized from Molina's residence and a Cellebrite report was prepared for each phone. [Record No. 113] The phones had little information that was useful to law enforcement, although one of Morales’ phones contained contact information for "Ruben," which was later linked to Defendant Molina during a controlled buy of methamphetamine. [Record No. 117, p. 6]
Two of the phones belonged to Molina and five of the phones belonged to Nathanael Morales.
Drug Enforcement Administration Special Agent Jason Moore testified regarding the federal investigation of Molina's alleged drug trafficking activities. According to SA Moore, the DEA received information in late 2019 that Molina was involved in drug trafficking. [Record No. 117, p. 3] Moore was not present at and had no association with the execution of the search warrant at Molina's residence on January 19, 2020. Moore explained that Molina's instant charges for methamphetamine trafficking arose out of the DEA's investigation utilizing a cooperating confidential source ("CS"). Specifically, Molina contacted the CS via Facebook Messenger on or about October 28, 2020, and asked the CS for a telephone number at which he could be contacted. Agents provided the CS with a telephone number, which the CS gave to Molina. Molina then contacted the CS using a telephone number that was ultimately connected with Molina based, in part, on the contact information from one of Morales’ phones seized on January 19, 2020. Id. pp. 6, 10.
Molina was arrested in November 2020 and charged by a criminal complaint based on the DEA's investigation of his alleged drug trafficking activities. Later that month, a federal grand jury returned an indictment charging Molina and Corrales with conspiring to distribute methamphetamine. [Record No. 8] In March 2021, a federal grand jury returned a superseding indictment charging Molina, Corrales, and Morales with conspiring to distribute methamphetamine and cocaine; Molina and Corrales with possessing with intent to distribute marijuana; and Molina and Corrales with distributing methamphetamine.
II.
The magistrate judge has recommended that the undersigned deny Molina's motion to suppress on alternate grounds. First, he determined that the evidence was procured properly and legally. Second, as the magistrate judge observed, Molina did not demonstrate how the evidence he seeks to suppress is relevant to his current prosecution.
It appears that the marijuana seized from Molina's residence on January 19, 2020, is relevant to Count 2 of the Superseding Indictment—possession with intent to distribute marijuana. However, the defendant did not raise this issue in his objections to the R & R and it is not relevant for purposes of the Court's analysis.
A. Officer Saylor's Search of the Bathroom
1 Molina's first objection concerns Officer Saylor's search of the bathroom. He contends that Saylor was permitted to "conduct a quick sweep" of the bathroom and nothing more. However, there is nothing about the circumstances leading up to Saylor's search of the bathroom or Molina's conduct during or after the search that supports this argument. Instead, Saylor sought Molina's permission to search or "check" the bathroom and he consented. See United States v. Lucas, 640 F.3d 168, 174 (6th Cir. 2011) (observing that Fourth Amendment permits warrantless search when valid consent is given).
23 The scope of consent is determined by examining how a reasonable person would have understood the conversation between the officer and the defendant when consent was given. See, United States v. Gant, 112 F.3d 239, 242-43 (6th Cir. 1997) (citing Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) ). Generally, the expressed object of a search defines the scope of consent unless the person giving consent expressly limits the scope. Id. at 243.
Immediately before seeking Molina's consent to "check" the "bathrooms and stuff," Saylor was questioning Molina in an attempt to determine what substance Corrales and Duarte had taken. But Molina claimed to have no knowledge of what substance his houseguests had ingested. Saylor explained to Molina that overdose victims can be treated more effectively when medical personnel know what substance they have taken. The obvious implication from the conversation was that Saylor's goal in searching the bathroom was to attempt to ascertain the identity of the substance or substances. During the search, Molina walked into the doorway of the bathroom and, when asked about the marijuana, explained that his sister ordinarily used this bathroom. At no point did he withdraw consent or object to what Saylor was doing.
Finally, while Molina contends that "check" and "search" are distinct acts, he has not provided any authority supporting this proposition. But see United States v. Rios, 2011 WL 4912074, at *4 (11th Cir. Oct. 17, 2011) (concluding that defendant's consent to having officers "check" his hotel room would cause a reasonable police officer to believe that defendant was allowing him to search for narcotics inside drawers, luggage, and other containers). Saylor's body camera footage revealed that Molina calmly observed without objection as she searched the bathroom after receiving his permission to do so. Molina's post hoc assertion that she exceeded the scope of the permissible search is without merit.
B. The Search Warrant
1. The Search Warrant was Supported by Probable Cause
4 Molina challenges the magistrate judge's finding that there was probable cause to support the search warrant for his home. In so doing, he highlights the weaker facts relied upon in the affidavit in support of the search warrant, to wit: the presence of latex gloves that could have been the same kind worn by EMTs; streaks on a table that might simply be an indication of a normal cleaning; and security cameras that are "not uncommon in modern homes." [Record No. 118, p. 5] However, the defendant presents these facts in isolation while ignoring many compelling facts indicative of drug trafficking, which are all set forth in the application for the search warrant.
56 Probable cause exists when there is "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983) ). The Court looks within the four corners of the affidavit supporting the search warrant request to determine whether probable cause exists. United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006). Such an affidavit must indicate "a nexus between the place to be searched and the evidence sought." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004).
Detective Cobb's application for a warrant to search Molina's residence was robust and included the following facts: Officers responded to an emergency call at the residence where multiple overdose victims had been revived with Narcan. Molina told officers that he had left the residence to pick-up breakfast and returned to find the victims lying in the floor. However, the officers observed a bag of food and several partially-eaten plates of food on the counter, clearly indicating that the events did not occur as the defendant claimed.
During a security sweep of the residence, officers observed marijuana in plain view, as well as latex gloves in the trash and a box of latex gloves in the office. Officers also observed a packaging tape dispenser and multiple bags of trash that were collected inside the residence and not disposed of in exterior trash cans. In Cobb's experience, these items and techniques are common in narcotics trafficking.
Cobb also reported that he smelled the odor of burnt marijuana upon entering the house. Molina denied having any knowledge of opioids, despite the overdosed individuals having been revived with Narcan. Cobb also indicated that he observed streaks on the dining table "consistent with someone wiping the table to discard narcotics." He noted that one of the overdose victims was located lying next to the table and the other two were located in close proximity to it.
Cobb noted the presence of security cameras on the exterior of the residence, as well as in a tree in the median down the street from Molina's house. Cobb commented that such cameras are commonly used for surveillance to observe any traffic to and from the residence. Sergeant Jared conducted a canvass of the neighborhood and several neighbors complained of come-and-go traffic and the odor of marijuana emanating from the residence. Officers also advised that Molina had three cell phones in his possession and a large amount of cash. At one point, Officer Grider had to forcibly remove a cell phone from Molina because he began deleting text messages.
Finally, the application for the search warrant noted that Molina has several previous charges for trafficking narcotics, including fentanyl, and has served a federal prison sentence in the past. Defendant Ruben Corrales also had prior charges for trafficking narcotics, including marijuana and cocaine
78 A police request to search for drugs need only show a fair probability that drugs will be found in the place to be searched. United States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016) (citations omitted). An affidavit in support of a search warrant should be viewed in its totality and through a lens of common sense. United States v. Williams, 544 F.3d 683, 685 (6th Cir. 2008). The affidavit in this case easily satisfies the threshold showing of a fair probability that evidence of drug trafficking would be found at Molina's residence.
2. The Good Faith Exception Would Apply
9 The search warrant is supported by probable cause—and this is not a close question. The magistrate judge concluded that, even if probable cause did not exist, the good-faith exception to the exclusionary rule would apply. This rule provides that courts should not suppress "evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant." United States v. Leon, 468 U.S. 897, 922 (1984).
10 In his objections to the R & R, Molina contends that the good faith exception does not apply, "as officers could not reasonably rely on the warrant as requested to support a search." [Record No. 118, p. 6] Molina concedes that the affidavit went beyond "bare bones," but argues for the first time that "a well-trained officer, like Detective Cobb, would have known that the facts as they actually were would not support a finding of probable cause despite the judge's decision to grant the warrant on the facts present in its support." Id.
Molina circles back to the same arguments he used to attack the sufficiency of the search warrant—that the streaks on the table were innocuous and the latex gloves in the trash could have been discarded by emergency personnel. Essentially, Molina suggests that Officer Cobb knowingly made misleading statements by including these in the search warrant application. However, Cobb testified during the suppression hearing that he personally observed water marks on the dining room table indicating that it had recently been wiped down with something wet. Since one of the overdose victims was lying next to this table, he believed it was consistent with someone wiping the table to discard narcotics. To the extent Sergeant Jared offered conflicting testimony that a "living room table" had been wiped down, he also expressed difficulty remembering, saying the incident had taken place more than a year and half ago.
Counsel for the defendant cross-examined Detective Cobb concerning the latex gloves during the suppression hearing. Counsel attempted to suggest that the latex gloves on top of the trash were discarded by first responders rather than the defendant or his guests. However, Cobb explained that the gloves were already in the trash prior to any medical personnel leaving the scene. Additionally, there was no suggestion that the box of latex gloves in the office nook belonged to first responders. If the defendant kept a box of latex gloves in his kitchen, it was reasonable for Cobb to believe that the discarded pair of gloves in the trash were the defendant's.
Molina certainly has not demonstrated by a preponderance of the evidence that Detective Cobb recklessly or intentionally made a materially false statement in the application for the search warrant. See United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (citing Franks v. Delaware, 438 U.S. 154 (1978) ). Further, even if the two challenged items were excised from the affidavit, there was still probable cause to search the premises based on the many other indicia of drug trafficking, including the marijuana and multiple trash bags inside the residence, the surveillance cameras, neighbors’ reports of come-and-go traffic, and the defendants’ history of drug trafficking offenses. See United States v. Campbell, 878 F.2d 170 (6th Cir. 1989). Simply put, these arguments are totally lacking in merit.
C. Information From Morales’ Phone
11 As previously stated, officers seized several cell phones from Molina's residence and subsequently obtained warrants to search the phones themselves. The Assistant United States Attorney advised the magistrate judge at the beginning of the suppression hearing that there was "no information of any investigative value" recovered from the seized cell phones. [Record No. 116, p. 3] Detective Cobb testified at the suppression hearing that there was nothing of evidentiary value recovered from the three phones seized from Molina. Id. pp. 46-47.
While there is no indication that Molina's phones contained any useful evidence, DEA SA Jason Moore's testimony indicates that one of Morales’ phones might have. Moore explained that on or about October 28, 2020, Molina contacted a cooperating source via Facebook Messenger. Molina asked the CS to provide a telephone number at which he could be contacted. Agents provided the CS with a telephone number, which the CS gave to Molina. Molina then contacted the CS using a telephone number that was ultimately recovered from Morales’ seized phone as "Ruben."
The magistrate judge ultimately concluded that Molina did not have standing to challenge the search of Morales’ phone. Molina objects to that finding, arguing that Morales’ phone constitutes fruit of the poisonous tree because it was seized during an illegal search of his home. But as previously explained, the search of Molina's home was proper and the magistrate judge correctly concluded that Molina does not have standing to challenge the search of Morales’ phone.
D. Good Samaritan Law
12 Kentucky law provides exemption from prosecution for possession of a controlled substance or drug paraphernalia for individuals who, in good faith, request medical assistance for the victim of a drug overdose and remain with the overdose victim until the requested assistance is provided. K.R.S. § 218A.133. In his objections to the R & R, Molina suggests that the evidence seized from his residence on January 19, 2020, should be excluded based on Kentucky's Good Samaritan Law. However, this statute has no impact on Molina's charges in this Court.
First, as the magistrate judge observed, the statute creates immunity from state prosecution for simple possession and does not immunize defendants from being prosecuted for other crimes such as trafficking. Notably, it does not create an exclusionary rule for evidence gathered during police investigations. In keeping with the plain language of the statute, the Court of Appeals of Kentucky has confirmed that exclusion of evidence is not a remedy under the Good Samaritan Law. Com. v. Milner, 2019 WL 5280800 (Ky. Ct. App. Oct. 18, 2019). While the Supreme Court of Kentucky has granted discretionary review in Milner, it appears the only issue presented is whether the defendant qualifies for exemption from prosecution under § 218A.133 when he did not actually overdose and did not need medical assistance. Whether suppression is an available remedy under the Good Samaritan Law is not at issue.
See C-Track Public Access , Kentucky Supreme Court , Case no . 2019-SC-0660, Milner v. Com. , https://appellatepublic.kycourts.net/case/a33219b4a582c90dba9153addfd21eaf906b2e8edd7492449d24cbc44cefb43f (last accessed June 29, 2021).
But more importantly, Kentucky law does not apply to the proceedings against Molina in this Court. See United States v. Wright, 16 F.3d 1429, 1434 (6th Cir. 1994) (the fact that a state law may "require greater protection against searches and seizures than the fourteenth amendment is of no avail to a defendant in federal court, under prosecution for a federal crime"). This Court applies Fourth Amendment jurisprudence, not state law, to determine whether evidence should be suppressed in a criminal proceeding. See id. Molina has not identified any valid reason that the evidence seized from his residence should be suppressed in this case.
III.
Based on the foregoing, it is hereby
ORDERED as follows:
1. The defendant's motion for an extension of time to file objections to the Report and Recommendation [Record No. 119] is GRANTED.
2. The magistrate judge's Report and Recommendation [Record No. 115] is ADOPTED and INCORPORATED here in full.
3. The defendant's motion to suppress [Record No. 85] is DENIED.
REPORT & RECOMMENDATION
Matthew A. Stinnett, United States Magistrate Judge
Defendant Ruben Molina ("Molina") is currently charged with conspiracy to distribute large quantities of methamphetamine both in October and November 2020. Molina's motion to suppress, however, concerns a search conducted in response to an overdose incident at his residence in January 2020. Specifically, Molina moves to suppress all evidence discovered during (1) a protective sweep conducted by officers responding to the overdose incident; (2) execution of a subsequently obtained state search warrant for his residence; and (3) review of a cell phone pursuant to a second, subsequent search warrant. [DE 85]. Molina contends that evidence obtained during these searches indirectly relates to the current prosecution.
Following full briefing and two days of evidentiary hearings,1 the Court recommends denial of Molina's suppression motion because not only was the evidence procured properly and legally, but there is no relevance of any such evidence to the current prosecution.
I. FACTUAL & PROCEDURAL BACKGROUND
A. OVERDOSE INCIDENT
On the afternoon of January 19, 2020, officers responded to a reported overdose incident at 3861 Ormesby Place in Lexington, Kentucky. Upon arrival, emergency responders found and began treating three individuals suffering from apparent drug overdoses: (1) Ulises Duarte; (2) Nathanael Morales; and (3) Ruben Corrales. Body camera footage of various law enforcement personnel demonstrated that the home appeared to be very large, with an open two-story great room and several different rooms upstairs as well as a basement. The impaired individuals were all positioned throughout the living room and dining room area on the first floor of the large residence. As officers administered multiple doses Narcan to the overdosing victims, Molina, who appeared unimpaired, wandered throughout the first floor of the home while using his cellphone.
While paramedics were still treating at least two of the overdosed individuals, officers began arriving on-scene.2 Lexington Police Department Officer Rebecca Saylor ("Officer Saylor") was the first to arrive. [June 8 Tr. at 88; see also DE 108 (conventional filing of Officer Saylor's body camera footage)]. Lexington Police Department Officer Chaz Grider ("Officer Grider") and Officer Clipson (first name unmentioned) arrived soon after. [Id. at 94–95]. Officer Saylor, as Corrales sat on the living room couch still recovering, began asking Corrales questions as to the cause of his illness. Corrales reported that he had consumed too much alcohol. [Id. at 89–90]. Officer Saylor next spoke with Molina. After eliciting Molina's basic details (including his name and residence, which he confirmed was the Ormesby Place home), Officer Saylor asked Molina whether she could search "the bathrooms and stuff." [Id. at 90–91; DE 108]. Molina responded that Officer Saylor could "go ahead." [June 8 Tr. at 91]. Upon searching the bathroom nearest the living room on the main floor of the home, Officer Saylor located suspected marijuana in a translucent, orange pill bottle in plain view on the bathroom countertop. [Id. ]. Molina advised that he did not know whose marijuana it was, but that the bathroom was typically used by his sister, who was not present at the residence. [DE 108]. Officer Saylor testified that, after locating the marijuana, she and the other officers remained on the main floor of the residence and maintained "visual accountability" of the home's occupants until other units arrived and a more thorough sweep of the residence could be conducted. [June 8 Tr. at 95]. Per Officer Saylor, overdose victims frequently awaken in a disoriented and, at times, violent state. Consequently, she felt it unsafe to leave the main area of the home until it was definitively secured. [Id. ].
Lexington Police Department Sergeant Brian Jared ("Sergeant Jared") arrived next. [Id. at 8–10]. Upon entry into the garage, Officer Grider advised Sergent Jared that he suspected narcotics activity at the home. [Id. at 10–15]. At this point, Officer Grider informed Sergeant Jared that two individuals were inside of the residence being treated for overdoses, and a third (later confirmed to be Morales) had been transported to the hospital. [Id. ]. Immediately inside of the entryway from the garage to the home, Sergeant Jared noticed an industrial tape gun (for taping boxes) and an open, large black trash bag with latex gloves clearly visible inside and at the top of it. [Id. ]. Inside, in the kitchen area, Sergeant Jared noticed Molina seated at the kitchen table. [Id. ]. He then asked the on-scene officers whether they had searched the entire home for potential overdose victims and/or children or other persons that may be left alone in the home if the adults on the main floor were transported to the hospital or elsewhere. [Id. at 14–20].
Learning that the officers present had not searched the entire house, Sergeant Jared directed them to do so. [Id. ]. Sergeant Jared joined the effort and briefly looked into each upstairs room. [Id. at 17 ("I figured that everyone's probably checked the main floor so I went and made my way up the stairs and just stuck my head into each individual room just to make sure there's no one obviously laying in a bed or down in the bathroom or in the hallway for that matter.")]. Sergeant Jared found no persons. However, while sweeping the basement, Sergeant Jared immediately noticed a pile of large black trash bags collected in one corner, as well as marijuana paraphernalia (burnt marijuana cigarettes) all in plain view in the room. [Id. at 16–17]. He confirmed that he did not have to move or manipulate any objects to see the items. Back on the main floor, in the kitchen/living room area, Sergeant Jared further noticed a large box of latex gloves in plain view on a desk located in the kitchen. [Id. at 18 ("There's a little nook [in the kitchen], such as this podium, that most houses have as a mini office and there was a large box of latex gloves sitting there as well.")].
Lexington Police Department Detective Brian Cobb ("Detective Cobb") arrived at the residence next. He initially consulted with Officer Grider and Sergeant Jared in the kitchen area of the home. [Id. at 38]. At this point, Corrales and Duarte were still in various stages of recovery, clearly ill and clutching vomit bags. [Id. at 38–45]. Detective Cobb immediately noticed half-eaten plates of breakfast food from First Watch on the kitchen island. Per Detective Cobb, "Mr. Molina advised that he left to go buy breakfast, when he returned home with the food the three subjects ... were laying on the floor, that's when he called 911 for emergency services." [Id. at 41]. Detective Cobb found this timeline suspicious, given the already-half-eaten plates of food. [Id. ]. Officers further advised Detective Cobb that Officer Saylor had found marijuana in the house. Additionally, in the dining room directly adjoining the kitchen and living room areas on the main floor, Detective Cobb observed wet streaks on the dining room table, consistent with it having recently been wiped down in specific places. [Id. at 43]. Duarte, still recovering with paramedic assistance, was seated on the floor by the dining room table.
B. SUBSEQUENT SEARCH WARRANT FOR THE RESIDENCE AND CELL PHONES
Based upon his and other law enforcements observations at the residence, Detective Cobb sought a search warrant for the Ormesby Place residence. [Id. ]. In the affidavit, Detective Cobb described the emergency call to the residence in response to a suspected triple overdose, as well as the individuals’ eventual revival with numerous doses of Narcan. [DE 85-1 at Page ID # 378]. Although Detective Cobb explained to Molina that Narcan was effective only on opioids, Molina denied any narcotics use in the home. [Id. ]. Detective Cobb also included in the affidavit the items found during the sweep of the residence: the pile of trash bags collected inside of the home and not disposed in exterior trash cans; the discarded latex gloves and the full box of latex gloves; the industrial tape dispenser; the marijuana in the bathroom; the strong odor of marijuana; the drug paraphernalia; and burnt marijuana cigarettes. [Id. ]. Detective Cobb also noted the recently wiped-down table as consistent with an attempt to conceal narcotics use. [Id. ].
Additionally, the affidavit mentioned two security cameras on the outside of the residence, a trail camera mounted in a tree in the median near the entrance to the neighborhood, and a large sum of cash as well as three cell phones located on Molina's person. [Id. ]. Detective Cobb stated that "Officer Grider had to forcibly detain Ruben Molina and remove one of the cell phones from him as he began deleting text messages from the phone." [Id. ]. The affidavit also referenced the Ormesby Place occupants’ criminal histories, including Corrales's prior marijuana and cocaine trafficking charges, and Molina's several prior trafficking charges (at least one involving fentanyl) and prior service of a federal sentence. [Id. ]. Lastly, Detective Cobb affirmed that, during a neighborhood canvass, neighbors complained of the smell of marijuana coming from the house and significant come-and-go traffic to the residence. [Id. ].
Based on these facts, the search warrant was approved and executed around 6:45 p.m. that same evening. [Id. at Page ID # 375]. Law enforcement uncovered evidence of drug trafficking (including packaging materials and multiple pounds of marijuana, see DE 1-1 at Page ID # 3–4). In addition to the drug-related items, law enforcement seized seven cell phones from Molina, Duarte, Morales, and Corrales. Two days after the overdose incident and search of the Ormesby Place residence, law enforcement obtained search warrants for each of those phones. [DE 113]. A cellebrite report was eventually prepared for each phone. [Id. ].
C. ALLEGED RELEVANCE TO CURRENT CHARGES
By the conclusion of the June 8th suppression hearing, the parties disagreed upon what relevance, if any, the seized evidence had upon the current charges. Molina initially postured that information obtained from a cellebrite report on his phone directly led the United States to the confidential informant used to purchase the methamphetamine in October and November 2020. Molina supported this argument referencing an investigation note suggesting as much.3 The United States denied such a connection and explained that Molina was misreading the investigation note.
On June 11, 2021, the suppression hearing resumed with Drug Enforcement Agency ("DEA") Special Agent Jason Moore ("Special Agent Moore"). [June 11 Tr.]. Special Agent Moore testified that the DEA began its investigation of Molina in late 2019. The DEA had no preceding knowledge of the Lexington law enforcement investigation surrounding the overdose incident in January 2020. In the early summer of 2020, the DEA began working with a confidential source ("CS"). [Id. at 6–8]. There is no indication on the current record that the Lexington Police Department or DEA learned of the CS through either the phones or any other evidence seized on (or as a result of) the January 19 events specifically.
In the early fall of 2020, Molina contacted the CS about a possible drug transaction and provided the CS with a phone number for contact. Then, and only then, the DEA used the previously obtained cellebrite reports created by Lexington law enforcement to verify the number provided by Molina as one previously associated with Molina. [Id. at 9]. More specifically, the DEA used the cellebrite report from the cell phone of Morales where the phone number was listed as part of Molina's contact information. Thus, while investigators did use the cellebrite reports, Special Agent Moore testified that the information from the phone itself provided no meaningful value in the investigation as the pending controlled buys were well in motion.
II. ANALYSIS
Molina advances four specific challenges to the January 19, 2020 search and its resulting fruits. He argues: (1) that the protective sweep was invalid, and that any evidence uncovered during it must be excised from the affidavit and eliminated from the residential search warrant's probable cause calculus; (2) that any statements Molina made on January 19th prior to law enforcement obtaining the search warrant were elicited in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and must be excised from the search warrant's affidavit; (3) that, with all offending facts excised, the search warrant was unsupported by probable cause, and not even the good faith exception saves it; and (4) that the Court should suppress any evidence found during a later search of Morales's cell phone that law enforcement seized on January 19th.
The Court carefully addresses, and ultimately rejects, each argument in turn.
A. THE PROTECTIVE SWEEP HAD A VALID PURPOSE AND WAS REASONABLE IN SCOPE AND DURATION.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[,]" and it provides that "no warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. It is a "basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Brigham City, Utah v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (quotation marks omitted). "Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions." Id. One such exception applies when exigent circumstances "make the needs of law enforcement so compelling that the warrantless search is objectively reasonable." Michigan v. Fisher , 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (quoting Mincey v. Arizona , 437 U.S. 385, 393–394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ). "[F]our situations may give rise to exigent circumstances: (1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent a suspect's escape, and (4) a risk of danger to the police or others." Thacker v. City of Columbus , 328 F.3d 244, 253 (6th Cir. 2003).
Falling into the fourth category, "[o]ne exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury." Brigham City , 547 U.S. at 403, 126 S.Ct. 1943. "[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Thacker , 328 F.3d at 253 (quoting Mincey , 437 U.S. at 392, 98 S.Ct. 2408 ). In other words, "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Mincey , 437 U.S. at 392, 98 S.Ct. 2408. Such a search intended to locate those presenting danger to on-scene officers or individuals in need of emergency assistance is considered a permissible "protective sweep" of the premises. See Stricker v. Twp. of Cambridge , 710 F.3d 350, 361–62 (6th Cir. 2013). A valid protective sweep for emergency aid purposes requires "an objectively reasonable basis for believing ... that a person within [the house] is in need of immediate aid[.]" Fisher , 558 U.S. at 47, 130 S.Ct. 546 (quotation marks and citations omitted). The officers’ subjective intent and the seriousness of any crime they might suspect is irrelevant to the analysis. Id. Relatedly, a valid protective sweep for officer safety purposes requires facts that "would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Wilson v. Morgan , 477 F.3d 326, 338 (6th Cir. 2007). In either scenario, "[t]he sweep may extend only to those places a person may be found and may last only as long as necessary to dispel the reasonable suspicion of danger." Id. (quotation marks omitted). When engaged in a valid protective sweep and thus lawfully on the premises, "the police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Mincey , 437 U.S. at 393, 98 S.Ct. 2408 ; see also United States v. Galaviz , 645 F.3d 347, 355 (6th Cir. 2011) ("Under the plain-view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.") (quotation marks omitted).
Molina does not explicitly challenge the stated bases for the protective sweep in this case—to confirm that there were no additional overdose victims, unmonitored minors who may be alone and in danger, or threats to police safety in the home. Certainly, the undisputed facts support the necessity of the protective sweep. The adults on the main floor were evasive and dishonest when officers questioned them about the circumstances of the overdoses. For example, Molina denied that the individuals had taken any narcotics; the overdosed and recovering individual seated on the living room couch just revived via several doses of Narcan advised Officer Saylor that he had consumed only alcohol the night before. [DE 108 (body camera footage); DE 85 1 at Page ID # 378; June 8 Tr. at 89]. Two of the recovering individuals refused to go to the hospital for treatment, despite the paramedics’ pleading. [June 8 Tr. at 22]. Accordingly, it was objectively reasonable for the officers to view a house-wide sweep as necessary to ensure there were not adults or children needing assistance located in other areas throughout the home.4
Nor does Molina take issue with the scope. The record demonstrates that each officer involved in the sweep simply peeked into the various rooms and merely surveyed what was in plain view.5 [See, e.g. , June 8 Tr. at 17 (Sergeant Jared testifying that he only "just stuck [his] head into each individual room just to make sure there's no one obviously laying in a bed or down in the bathroom or in the hallway for that matter")]. The Court finds the scope of the search consistent with the exigencies it sought to address. See Wilson , 477 F.3d at 338 (6th Cir. 2007) (finding that such a sweep should "extend only to those places a person may be found"); Stricker , 710 F.3d 350, 361–62 (concluding that where "it was objectively reasonable for the officers to believe that Andrew was suffering from a drug overdose and that the Strickers attempted to hide the drug overdose from the police, a search around the bedrooms and even into the drawers" was warranted).
Molina does, however, challenge the duration of the sweep. Indeed, the sweep in this case was piecemeal and somewhat disorganized, undoubtedly temporally extending it to some degree. But the touchstone of the Fourth Amendment is not perfection; it is reasonableness. The central question is simply whether the duration of the sweep was reasonably and continuously tied to the exigency itself. As noted, the sweep may not last any longer than is reasonably necessary to confirm that the suspected danger has subsided. Wilson , 477 F.3d at 338. Given the primary "reasonableness" inquiry, the case law offers few bright-line outer timing limits. The answer necessarily turns on the specific facts in each scenario.
Here, Officer Saylor was the first police officer (separate from the fire department and paramedics) to arrive on the scene. Per Officer Saylor’ testimony, she arrived through the garage [see DE 108] where she observed in plain view the open trash bag with plastic gloves visible inside. The scene was chaotic, with multiple overdose victims located in different rooms across the main floor of the home. She then requested and obtained Molina's consent to search the bathrooms. [June 8 Tr. at 90–91]. In the bathroom, Officer Saylor located marijuana. [DE 108]. Sergeant Jared, following Officers Grider and Clipson, arrived next. [DE 85-1, at Page ID # 377; June 8 Tr. at 10]. As he was entering the residence, Sergeant Jared saw an industrial tape gun and the open trash bag with latex gloves in plain view. [Id. at 12]. In plain view in the kitchen area (specifically, in a nook seemingly designated as a small office space), Sergeant Jared noticed a box of latex gloves. [Id. at 18]. Sergeant Jared then immediately ordered a protective swept of the entire home to ensure there were no additional victims or persons in the home. [Id. at 15–16]. In the basement, he saw in plain view a pile of large trash bags collected in one corner of the room as well as burned marijuana cigarettes. [June 8 Tr. at 16].
The sweep of the residence, at all times, was targeted to ensure that no additional overdose victims or minors were located inside. [See id. at 17]. Cf. Mincey , 437 U.S. at 392–93, 98 S.Ct. 2408 (cautioning that a warrantless search must at all times remain "strictly circumscribed by the exigencies which justify its initiation" and finding that, in a situation where all persons in the home had already definitively been located, a subsequent "a four-day search that included opening dresser drawers and ripping up carpets [could] hardly be rationalized in terms of the legitimate concerns that justify an emergency search"). In contrast with the Mincey search, Sergeant Jared and the others in this case reasonably believed that the legitimate need for the sweep persisted throughout its entire duration. See Wilson , 477 F.3d at 338. Consequently, the duration was reasonable. And, as everything located during the sweep was unequivocally discovered in plain view, the suppression of the viewed evidence is unwarranted. The Court need not excise any uncovered proof from the resulting search warrant affidavit.
B. MOLINA HAS NOT SHOWN THAT ANY STATEMENTS SHOULD BE SUPPRESSED.
Molina vaguely argues that the Court should suppress statements that Molina made to law enforcement during emergency responders’ treatment of the overdose victims. It is not at all clear, however, which specific statements Molina challenges. 6 Regardless, the Court finds that Molina has not shown that he was subject to custodial interrogation during the relevant period. Accordingly, the Court recommends denial of Molina's motion to the extent it can be construed to seek suppression of any statements that Molina made on January 19, 2020.
The Fifth Amendment precludes an individual from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To help safeguard this right, the Supreme Court enacted the familiar prophylactic rule outlined in Miranda : "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444, 86 S.Ct. 1602. The Miranda rule applies only to custodial interrogations—i.e. , "questioning by a law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way." Maranian v. Jackson , 14 F. App'x 310, 313 (6th Cir. 2001). To determine whether there was a custodial interrogation, the Court "examines the totality of the circumstances to determine how a reasonable man in the suspect's position would have understood his situation" and whether "a restraint on freedom of movement of the degree associated with a formal arrest" occurred. Id. at 314. "A suspect is in custody if, under the totality of the circumstances, a reasonable person would not feel free to end the interrogation by the police and leave." United States v. Hoyer , 411 F. Supp. 3d 406, 408 (W.D. Ky. 2019). Interrogation includes both express questioning, as well as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response[.]" Id. at 409 (quoting Rhode Island v. Innis , 446 U.S. 291, 301 (1980) ). However, "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not" interrogation within the meaning of Miranda. 384 U.S. at 477, 86 S.Ct. 1602. The Court considers several factors in assessing the nature of challenged questioning,
including (1) the location of the interview; (2) the length and manner of the questioning; (3) whether there was any restraint on the individual's freedom of movement; and (4) whether the individual was told that he or she did not need to answer the questions.
United States v. Hinojosa , 606 F.3d 875, 883 (6th Cir. 2010). A party seeking suppression of statements based on a Miranda violation is required to show by a preponderance of the evidence that he was subject to custodial interrogation. United States v. Lawrence , 892 F.2d 80 (Table), 1989 WL 153161, at *5 (6th Cir. 1989).
The parties do not dispute that Molina was not read his Miranda warnings at any point. Nor do the parties contest custody. In fact, while not dispositive, Detective Cobb testified that Molina was detained. [June 8 Tr. at 64–65]; see Stansbury v. California , 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The facts support the conclusions of the parties and Detective Cobb. Despite being in his own home, law enforcement and emergency presence was substantial. [June 8 Tr. at 13, 38]. Molina was the only non-law-enforcement, unimpaired, and coherent individual in the home at that time. Moreover, even though no weapons were displayed during the encounter, the officers’ actions in forcibly restraining Molina, even if only momentarily, to remove his phone from his control were intimidating. [See DE 85-1 at Page ID # 378 (affirming that "Officer Grider had to forcibly detain Molina and remove one of the cell phones from him as he began deleting text messages from the phone")]. These circumstances weigh in favor of a custody finding, despite the location being Molina's home. See United States v. Panak , 552 F.3d 462, 466 (6th Cir. 2009) (noting that "[e]ven when an interrogation takes place in the familiar surroundings of a home, it still may become custodial without the officer having to place handcuffs on the individual" and observing that the number of officers present is an important factor); United States v. Mitchell , 161 F. App'x 537, 540 (6th Cir. 2006) (finding that, where four officers conducted a traffic stop of two individuals, "the quantity of officers involved in the stop would certainly have been intimidating to a reasonable person" and contributed to transforming the otherwise innocuous encounter into a Miranda situation). A reasonable person in Molina's shoes would not have felt he could usher the police out as he chose. Cf. Coomer v. Yukins , 533 F.3d 477, 487 (6th Cir. 2008) (acknowledging that "perhaps most significantly" the officer had advised the defendant "several times that she was not under arrest and that the police would leave if asked").
However, despite the custodial nature of the encounter, there is no evidence whatsoever that Molina was subject to custodial interrogation under Miranda. All questioning was calm, casual, and in no way prolonged or in-depth. Hinojosa , 606 F.3d at 883. More importantly, the officers simply asked Molina routine, on-the-scene questions about the events leading up to the suspected overdoses, such as who lived at the house, how many people were on-scene, and what the apparently overdosing individuals had taken. The nature of any questioning reflected per the testimony and footage was relaxed, with Molina at times paying only partial attention to the officers’ routine questions as he talked on the phone and appeared blatantly distracted. [See, e.g. , DE 108]. This general factfinding questioning from various officers at various points—all ostensibly to discern how to address the exigent circumstances—is far from the sustained, police-dominated "interrogation" that Miranda feared. See Hoffner v. Bradshaw , 622 F.3d 487, 512 (6th Cir. 2010) (emphasizing that on-the-scene questioning is exempt from the Miranda requirement and concluding that "the police did not need to give [the defendant] Miranda warnings upon entering [his] house in order to ask basic investigatory questions"); see also Garcia v. Singletary , 13 F.3d at 1487, 1491 (11th Cir. 1994) (concluding that an officer conducting brief investigatory questioning of an inmate about the origin of a fire that he started "was a spontaneous reaction to a startling event" and not interrogation under Miranda ). This is perhaps the atypical case where an individual was significantly restricted in his freedom of movement and would not have reasonably felt he could depart and terminate the encounter altogether, but also questioned so briefly and casually about basic on-scene events that he would have reasonably felt that he could terminate questioning at any time. Cf. United States v. Phillips , No. 08-96-GFVT, 2009 WL 4571844, at *12 n.5 (E.D. Ky. Dec. 1, 2009) (observing that on-the-scene questioning "generally" occurs in a noncustodial environment).
For these reasons, the Court finds that Molina has not shown by a preponderance of the evidence that he was subject to custodial interrogation or that he made any statements under such circumstances. The Court recommends that the District Judge reject Molina's Miranda arguments and deny suppression of the at-issue statements made on January 19th, whatever those statements may have been.
C. THERE WAS PROBABLE CAUSE FOR THE JANUARY 19TH RESIDENTIAL SEARCH WARRANT , AND , REGARDLESS , THE GOOD FAITH EXCEPTION PRECLUDES SUPPRESSION.
"[P]robable cause exists under the Fourth Amendment ‘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. Perry , 864 F.3d 412, 415 (6th Cir. 2017) (quoting United States v. Brown , 732 F.3d 569, 573 (6th Cir. 2013) ). The Court's review is limited to considering whether the issuing judge "had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited[.]" Id. (quoting Brown , 732 F.3d at 573 ).
The Court must give great deference to the issuing judge's probable cause determination. Id. The Court's assessment is further restricted "to the information presented in the four corners of the affidavit[,]" and the Court must judge the affidavit "based on the totality of the circumstances, rather than line-by-line scrutiny[.]" United States v. Jackson , 470 F.3d 299, 306 (6th Cir. 2006). Moreover, "[t]he affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added." United States v. Allen , 211 F.3d 970, 975 (6th Cir. 2000). The Court ultimately considers all facts presented in the affidavit, collectively, "through the ‘lens of common sense[.]’ " United States v. Christian , 925 F.3d 305, 309 (6th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 414, 205 L.Ed.2d 233 (2019) (quoting Florida v. Harris , 568 U.S. 237, 244, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ).
To establish probable cause for a residential search warrant, as here, "the supporting affidavit must set forth ‘a nexus between the place to be searched and the evidence sought.’ " United States v. Penney , 576 F.3d 297, 311 (6th Cir. 2009) (quoting United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) ). See also United States v. Jenkins , 743 F. App'x 636, 642 (6th Cir. 2018) (citing United States v. Van Shutters , 163 F.3d 331, 337 (6th Cir. 1998) and observing that there must be a "nexus between the premises and the criminal activity"). "This belief that the items sought will be found at the location to be searched may be supported by less than prima facie proof but [requires] more than mere suspicion." Id. (internal quotation marks omitted).
Here, the affidavit in support of the search warrant detailed numerous facts establishing probable cause of drug activity inside the Ormesby Place residence and that fruits or instrumentalities of such crimes would be found there. [Id. at Page ID # 377–79].
First, critically, the three overdoses that occurred inside of the residence on January 19—requiring Narcan revival—strongly indicated that narcotics use was occurring at the home on that specific date. See, e.g., United States v. Stewart , 761 F. App'x 659, 662 (8th Cir. 2019) (finding probable cause for a search warrant where, among other things, an individual "had suffered a non-fatal overdose at the residence"); United States v. Galloway , No. CR 19-10162-DJC, 2020 WL 4369648, at *3 (D. Mass. July 30, 2020) (finding probable cause for a residential search warrant where a suspected drug overdose had occurred).7
Second, the affidavit referenced the various indicators of suspected drug trafficking that officers found at the residence during the protective sweep. Detective Cobb affirmed that, per his training and experience, the collection of trash inside of a residence in this manner frequently indicated both the bulk packaging of narcotics and a desire to prevent police from rifling through the discarded items, further suggesting unlawful activity. See United States v. Schultz , 14 F.3d 1093, 1097 (6th Cir. 1994) (emphasizing the value of an officer's training and experience in establishing probable cause). This conclusion is bolstered by the gloves found in the open trash bag in the kitchen, which matched the full box of gloves found in the kitchen. Additionally, officers located an industrial tape gun, which could be used for large-scale drug packaging. Though individually offering little, these items collectively indicate that the Ormesby Place residents had been preparing and packaging drugs and attempting to conceal the remnants.
Third, the affidavit referenced actual narcotics found in the home, i.e. , "marijuana in plain view[,]" as was found by Officer Saylor and Sergeant Jared. [DE 85-1 at Page ID # 378]. Detective Cobb also noted the smell of burnt marijuana inside of the residence. Further, as indicated in the affidavit, neighbors corroborated the smell of marijuana frequently emanating from the home. The affidavit also noted that the table in the dining room—by which one of the overdose victims was lying—appeared to have been recently wiped down, with wet streaks still visible. Detective Cobb additionally mentioned that, upon his canvassing of the area, neighbors complained of come-and-go traffic targeting the residence. See United States v. Peterson , 840 F. App'x 844, 849 (6th Cir. 2021) (observing that "short-term visits" to a house are "consistent with drug-trafficking activity").
Fourth, multiple cell phones and the "large quantity of cash" discovered on Molina's person on the afternoon of January 19th are indicative of trafficking activity. [DE 85-1 at Page ID # 378]. See, e.g., United States v. Brooks , 594 F.3d 488, 495 (6th Cir. 2010) (noting that "[c]ourts have readily acknowledged that large sums of cash are indicative of the drug trade").
Fifth, officers also noted that there were two security cameras outside of the residence and a mounted trail camera at the entrance to the neighborhood, several houses down from Molina's home. Consistent with his training and experience, Detective Cobb noted in context that off-site security cameras are frequently used near drug traffickers’ homes.
Sixth, Detective Cobb also mentioned in the affidavit that Molina and Corrales both had prior narcotics charges and other criminal convictions. Specifically, Molina—who admitted to officers that he lived at the residence—"had several narcotics trafficking charges, including trafficking fentanyl, and served [a] federal prison sentence in the past." [DE 85-1 at Page ID # 378]. These prior charges and convictions provide additional context for the materials found at the home and the overdose situations, making it more likely that the materials were trafficking-related and that the individuals had, in fact, overdosed on fentanyl (or a similar narcotic substance). See United States v. Dyer , 580 F.3d 386, 392 (6th Cir. 2009) (explaining that, though not dispositive, criminal history is "relevant" to the issue of probable cause, and it is appropriate to "take into account predilections revealed by past crimes or convictions as part of the inquiry").
In the end, none of these facts alone necessarily creates probable cause for the search warrant. Yet, taken in the aggregate, these facts certainly indicate drug use and trafficking at the residence. Evaluating the collective whole of these facts through a commonsense lens, as the Court must, it is apparent that probable cause existed to search the residence. The Court recommends that the District Court deny suppression of the results of the search.
Even if the District Court were to determine probable cause did not exist, it is abundantly apparent that the good faith exception would nonetheless save the search and preclude suppression. Where a reviewing court determines that the affidavit did not establish probable cause, it should not apply the exclusionary rule and suppress the resulting evidence if it was "seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." United States v. White , 874 F.3d 490, 496 (6th Cir. 2017) (quoting United States v. Leon , 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). "Following Leon , courts presented with a motion to suppress claiming a lack of probable cause must ask ‘whether a reasonably well trained officer would have known that the search was illegal despite the’ " issuing judge's blessing. Id. (quoting United States v. Hodson , 543 F.3d 286, 293 (6th Cir. 2008) ).
This standard is easily met in this case. Given the overdosing individuals present at the Ormesby Place house on January 19, the suspected trafficking supplies found there, and the actual narcotics discovered during the earlier protective sweep, there is a substantial connection between the suspected drug activity and the residence. This connection certainly provides the minimum modicum of evidence that fruits of drug crimes would be found at the home. Moreover, given the level of recent (same-day) factual detail provided in Detective Cobb's affidavit and the judge's approval of the warrant, officers reasonably viewed the affidavit as well beyond "bare bones" and undoubtedly executed the authorized search in good faith. The Court recommends that, even if probable cause is ultimately deemed lacking, the District Judge find that the good faith exception applies and deny suppression on that alternative and independent basis.
D. MOLINA LACKS STANDING TO CHALLENGE ANY SEARCH OF MORALES'S PHONE.
Lastly, the Court briefly addresses Molina's argument for suppression of evidence found on the various cell phones seized on January 19th. As a threshold matter, the Court observes that the Government demonstrated—through Special Agent Moore's credible and uncontested testimony—that the sole evidence utilized by the DEA from the cellebrite reports was confirmation that a number provided by Molina in the fall of 2020 was also associated with Molina in the cellebrite reports. [June 11 Tr. at 5–10]. Namely, the number was listed in the contact information for Molina on the phone belonging to Morales. Consequently, the evidence, even if wrongfully seized, has no impact or relation to the current pending charges.
Moreover, Molina does not have standing to contest the use of information seized from Morales. Molina has neither asserted nor demonstrated any ownership or possessory interest in any of Morales's cell phones. "[B]ecause Fourth Amendment rights are personal, suppression of evidence as the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." United States v. Powell , 847 F.3d 760, 768 (6th Cir. 2017) (quotation marks omitted). Critically, a person "with no possessory interest" in property has no standing to challenge the search of that property on Fourth Amendment privacy grounds. United States v. Bah , 794 F.3d 617, 626 (6th Cir. 2015) ; see also United States v. Brewer , 708 F. App'x 96, 99 (3d Cir. 2017) (finding that a defendant who lacked "ownership and control of the phone" ultimately searched did not have any privacy expectation in its contents and, thus, lacked standing to challenge the search).
Molina has advanced no argument for suppression of any content found on his own phones that were seized on January 19. Nor does the record indicate that any incriminating content was discovered on them in this investigation.
Accordingly, even if the cellebrite report had independent evidentiary value and itself contributed to any later fruits—and, the record is clear that it did not—Molina would nonetheless lack standing to challenge the search or search warrant pertaining to it. The Court thus recommends that the District Judge deny Molina's motion to the extent it seeks suppression of any referenced cell phone evidence.
III. CONCLUSION
For all of the reasons discussed, the Court RECOMMENDS that the District Court DENY Molina's suppression motion [DE 85]. The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning this recommendation, issued under subsection (B) of the statute. Given the impending trial date and per the parties’ agreement, within seven days after being served with a copy of this recommended decision, any party may serve and file written objections to any or all portions for consideration, de novo , by the District Court.