United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
F. COX, UNITED STATES DISTRICT COURT JUDGE
Dupree Rich is charged with drug and firearm offenses, that
stemmed from the execution of a search warrant at his home in
Clinton Township, Michigan. The matter is currently before
the Court on Rich's Motion to Suppress Evidence Obtained
As A Result of Search Warrant. The parties have briefed the
issues and the Court held an evidentiary hearing, and heard
oral argument, on August 24, 2017. Thereafter, the parties
filed supplemental briefs. For the reasons set forth below,
the Court shall DENY Defendant's Motion to Suppress.
two-count Indictment in this criminal action charges
Defendant Rich with: 1) possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
One); and 2) being a felon in possession of firearm, in
violation of 18 U.S.C. § 922(g) (Count Two).
15, 2017, Rich filed a “Motion to Suppress Evidence
Obtained As A Result Of Search Warrant” (D.E. No. 18),
which raises the following arguments: 1) the affidavit for
search warrant is void of probable cause to search Rich's
home, based on the four corners of the search warrant
affidavit and based upon alleged material omissions by the
officer who submitted the search warrant affidavit; 2) the
police cannot rely on the warrant in good faith; and 3)
obtaining the warrant from a state district judge violated
Fed. R. Crim. P. 41 and requires suppression. (Id.
at Pg ID 48).
Government contends that probable cause existed within the
four corners of the search warrant affidavit and that the
officer did not omit any material information. The Government
also contends that the evidence should not be suppressed in
any event under the Leon good-faith exception and
that suppression is not warranted under Fed. R. Crim. P. 41.
the issues so framed by the parties, this Court set
Rich's Motion to Suppress for hearing.
Government argued, in its response and at oral argument, that
Rich is not entitled to a Franks hearing because he
has not made the “substantial preliminary showing of
deliberate falsehood or of reckless disregard for the
truth” required under Franks v. Delaware, 438
U.S. 154 (1978).
preliminary showing here consisted of the arguments contained
in Rich's Motion to Suppress, and his assertions about
facts known by the officers but omitted from the search
warrant affidavit. Out of an abundance of caution, however,
and because Rich's motion raised additional challenges,
such as his challenge under Fed. R. Crim. P. 41(b), this
Court permitted Defendant to proceed with an evidentiary
hearing on August 24, 2017.
Government called one witness at the evidentiary hearing,
Sergeant Jason Kment. Defense Counsel cross-examined Sergeant
Kment and did not call any other witnesses. There was just
one exhibit submitted into evidence at the evidentiary
hearing - the search warrant affidavit. (D.E. No. 18-1).
OF FACT AND CONCLUSIONS OF LAW
heard and observed the witnesses who testified at the
evidentiary hearing, allowing for this Court to assess
credibility, having considered the arguments presented by
counsel, and having applied the governing legal principles,
the Court makes the following findings of fact and
conclusions of law.
Jason Kment has been employed by the Southgate Police
Department in Southgate, Michigan since June of 2003.
February of 2016, Kment was working as a Southgate police
officer on detail to the federal Drug Enforcement
Administration. He began that role as a task force officer in
March of 2010. While working as a task force officer, the
drug cases he investigates can go either state or federal.
February of 2016, a confidential informant, who had reliably
provided true information in the past (the “CI”),
provided information relating to cocaine trafficking by a man
named John Yalda. Several other officers, in addition to
Kment, were involved in that investigation.
agents on the task force met with that CI for the purpose of
making a controlled buy of cocaine from Yalda.
February 22, 2016, the CI arranged to make a purchase of
cocaine from Yalda. Shortly before the transaction, officers
observed Yalda leave the area of the Floyd Street Residence
in Clinton Township, Michigan and drive to a Party King food
store in Clinton Township, Michigan. Once he arrived there,
Yalda met with the CI in the parking lot and exchanged $2,
600.00 for two ounces of cocaine, inside the CI's
that purchase, Yalda went into the store for a few minutes
and then left the area, driving directly to the Floyd Street
Residence. Yalda remained inside the Floyd Street Residence
for less than ten minutes and then left the area.
that night, Yalda drove to a home on Clancy Street. While
Yalda was there, he had a monitored call with the CI wherein
the CI was attempting to purchase more cocaine. Yalda told
the CI it was tough to find right now, but that he may be
able to find another half ounce or so. Yalda said he would
work on it and try to find some cocaine for the CI. But Yalda
did not leave the home on Clancy Street for the remainder of
that night, and no additional cocaine was sold to the CI the
night of February 22, 2016.
February 29, 2016, the CI purchased additional cocaine from
Yalda, during a second controlled buy. Yalda and the CI met
in a parking lot near the Party King food store, and agreed
that the CI could purchase one ounce of cocaine for the price
of $1, 300.00. The CI then left the location, and so did
Yalda. Yalda drove to the Floyd Street Residence.
Approximately one minute later, the officers identified Rich
as the driver of a black Cadillac Escalade that arrived at
the Floyd Street Residence. Yalda and Rich were observed
going inside the Floyd Street Residence together. Yalda
exited the house a few minutes later. Rich then exited the
home as well, and both men left the area in separate
vehicles. Yalda was followed and he returned to the area of
the Party King store parking lot. Yalda went into a Metro PCS
store in the same commercial complex. The CI then arrived in
the parking lot and called Yalda. Yalda and the CI were in
the Metro PCS store for together briefly, and then both men
went to the CI's vehicle. While in the CI's vehicle,
Yalda sold the CI one ounce of cocaine for $1, 300.00. After
the purchase, Yalda went back into the Metro PCS store for
less than an hour, and also went into the Party King Store.
those two controlled buys from Yalda, Kment learned that Rich
has an extensive criminal history, including felony drug
convictions for delivery of cocaine. Another officer on the
task force obtained records from DTE Energy that showed that
the electricity account for the Floyd Street Residence is in
then prepared an affidavit for a search warrant. On February
29, 2016, Kment prepared an affidavit under oath in support
of a search warrant for evidence related to controlled
substances at the Floyd Street Residence in Clinton Township,
Michigan. That affidavit was submitted to the Honorable James
Kandrevas, a state district court judge in Southgate,
Michigan, who issued the requested warrant. In relevant part,
Kment's search warrant affidavit stated:
1. Affiant is a Police Officer with the Southgate Police
Department and has been employed for over 12 years. Affiant
has been a law enforcement officer for over sixteen years and
is currently assigned as a Task Force Officer (TFO) with the
Drug Enforcement Administration (DEA) for the past five years
and eleven months. Affiant's primary duties include the
initiation and investigation of narcotic related complaints.
Through experience and training, Affiant is familiar with the
unlawful use, production, and distribution of dangerous
. . . .
1. This affidavit contains information from one confidential
source (hereinafter referred to as DEA1). The DEA1 has
provided information in prior investigations that have been
verified through other sources to be reliable, true and
2. To date, DEA1 had provided information in prior
investigations that has been verified through other sources
to be reliable, true, and accurate. DEA1 has provided
information that has led to the arrest of drug traffickers
and the ...