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United States v. McGhee

United States District Court, E.D. Michigan, Southern Division

October 26, 2017

United States of America, Plaintiff,
v.
Lamont James McGhee Defendant.

          Mona K. Majzoub United States Magistrate Judge.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR A HEARING PURSUANT TO FRANKS V. DELAWARE [17]

          HON. GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.

         I. INTRODUCTION

         Presently before the Court in this criminal action is Defendant Lamont James McGhee's motion for a hearing to challenge the truthfulness of a warrant affidavit, brought pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Defendant asserts that there was a lack of probable cause for his arrest because the search warrant rested upon false statements made with reckless disregard for the truth. For the reasons that follow, the Court DENIES Defendant's Motion for a Franks Hearing.

         II. FACTUAL BACKGROUND

         On April 23, 2015, Anderson Robinson was arrested in the City of Detroit. Dkt. No. 19-1, p. 3 (Pg. ID 69). The police seized from him over 1.5 kilograms of cocaine and over $145, 000 in cash. Id. An interview with Robinson revealed that his cocaine supplier was known to him as “L.” Id. According to Robinson, L supplied him with approximately 1-2 kilograms of cocaine every month. Id. Robinson provided the police with L's phone number, and he was released from custody in exchange for future cooperation in the investigation of L. Id.

         Through the use of toll records, Officer Brian Elko of the Drug Enforcement Agency (“DEA”) identified L as the Defendant, Lamont James McGhee. Id. It was also determined that Defendant resided at 16124 Veronica in the City of Eastpointe. Id. Robinson was shown a photograph of Defendant, and he positively identified Defendant as L. Id.

         Officer Elko obtained four 30-day search warrants for phone pings on Defendant's phone through the 41-B District Court in Clinton Township. Id. He also obtained three 56-day tracking warrants for Defendant's vehicles from the same court. Id. From approximately May 18, 2015 to May 6, 2016, these surveillance devices revealed that Defendant made frequent stops at various residences in Wayne and Macomb County for short periods of time. Id. On numerous occasions, it was also observed that Defendant met with “DEA 1, ” who was the target of a large-scale investigation by the DEA for trafficking cocaine in the Metro Detroit area. Id.

         The police then obtained information from a “credible and reliable” criminal informant, “C.I. #221, ” that Robinson was still purchasing cocaine from Defendant. Id., p. 4 (Pg. ID 70). C.I. #221 had previously aided the police in the seizure of multiple kilograms of cocaine, large amounts of pharmaceutical drugs, along with heroin and marijuana. Id. Robinson was arrested on January 26, 2016, and additional cocaine and currency was seized. Id.

         On January 3, 2017, the police gathered two trash bags from the bin located in front of Defendant's home. Id. In the bags were “wrappers” consistent with the kind of packaging used for two kilograms of cocaine. Id. Along with the wrappers were cellophane, empty boxes of baking soda, dryer sheets, and sandwich baggies. Id. The police swabbed the wrappers using a Sirchie Narc Cocaine ID swipe, which indicated a positive test for cocaine. Id.

         Detective James Onyski sought a search warrant for Defendant's home based on the following: “the statements of Robinson, the information gathered from the phone search warrants, tracking search warrants, surveillance and the positive tests for cocaine on multiple kilogram size ‘wrappers.' ” Id. On January 3, 2017, a warrant issued by Magistrate Karen Haydett of the 38th District Court of Eastpointe was executed to search Defendant's residence. Dkt. No. 1, p. 2 (Pg. ID 3). Defendant was found in possession of 290 grams of cocaine, 65.5 grams of crack cocaine, and a 9mm Glock pistol, which was holstered on his person. Id., pp. 3-4 (Pg. ID 3-4).

         Defendant was charged under 21 U.S.C. §§ 841(a)(1) and 841(B) (“Possession with Intent to Distribute and Distribute a Controlled Substance”) and 18 U.S.C. § 924(c) (“Possession of a Firearm(s) in Furtherance of and During and in Relation to a Drug Trafficking Crime”). Dkt. No. 11, pp. 1-2 (Pg. ID 19-20). Defendant filed the present motion for a Franks hearing on June 2, 2017. Dkt. No. 17. He challenges the truthfulness of the January 2017 warrant affidavit written by Detective Onyski, asserting that elements of the affidavit were false or fabricated. Id.

         III. LEGAL STANDARD FOR FRANKS HEARING

         A defendant is entitled to a hearing to challenge the validity of a search warrant if he makes a substantial preliminary showing that: (1) 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 probably cause. Franks, 438 U.S. at 154-55 (emphasis added). To mandate an evidentiary hearing, the challenger's attack must be more than conclusory, pointing out specifically, with supporting reasons, the portion of the warrant affidavit that is claimed to be false. Id. It also must be accompanied by an ...


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