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United States v. Gojcaj

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

February 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK GOJCAJ, Defendant

          MEMORANDUM AND ORDER DENYING MOTION TO QUASH (DOC. 31)

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I.

         This is a criminal case. Defendant is charged in a one count indictment with possession with intent to distribute controlled substances, in violation of 18 U.S.C. § 841(a)(1), (b)(1)(C).

         Before the Court is defendant's motion to quash the search warrant executed at 27286 Bunert, Warren, Michigan on the grounds the affidavit accompanying the application for search warrant was not supported by probable case. Defendant also seeks suppression, as fruits of the poisonous tree, the evidence obtained during the execution of the search warrant (cocaine, more than $6, 500 in cash, digital scales, baggies, and other indicia of drug trafficking). The Court held a hearing on January 22, 2018, on the motion. The motion is DENIED for the reasons stated on the record following oral argument and as supplemented by the comments which follow.

         II.

         On May 4, 2017, a judicial officer of the 37th Judicial District Court in Warren, Michigan authorized a search warrant for the Bunert residence. The application for the search warrant was supported by the affidavit of a Warren police officer. On May 5, 2017, the search warrant was executed by members of the Warren police department. As noted above, evidence of drug activity was found and seized.

         III. Parties' Arguments

         Defendant's motion is premised on the argument that his status as a drug dealer alone is insufficient to provide probable cause to search the Bunert residence.[1]Defendant also says that the affidavit lacks information to show a connection between the Bunert residence and defendant's status as a drug dealer.

         The government agrees that a suspect's status as a drug dealer standing alone does not give rise to probable cause, i.e. a fair probability, that drugs will be found in the suspect's residence. However, the government says that the affidavit has ample factual assertions which, under the totality of the circumstances, supports probable case. In other words, the government says that there is a nexus between the Bunert resident and defendant's drug activities.

         IV. The Law

         The law is well settled. Under the Fourth Amendment, “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.” “[S]o long as the magistrate had a ‘substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213, 236, (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). In order to conclude that an affidavit establishes probable cause, the issuing judge must find that “given all the circumstances set forth in the affidavit ... 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.

         To meet the nexus requirement of probable cause, “the circumstances must indicate why evidence of illegal activity will be found in a particular place.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). In other words, “the affidavit must suggest ‘that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought' and not merely ‘that the owner of the property is suspected of a crime.' ” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir.2006) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)). “There must, in other words, be a nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)

         Regarding known drug dealers, the Sixth Circuit has said:

We have acknowledged that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (citation omitted). Thus, in some cases, we have permitted judges to infer a fair probability of finding evidence in a residence even though the affidavit did not state that such evidence had been observed directly. See, e.g., Id. at 974-75. We have never held, however, that a suspect's “status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Rather, we have required some reliable evidence connecting the known drug dealer's ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence. Compare Jones, 159 F.3d at 974-75 (finding probable cause to issue a warrant where confidential informant made drug purchases from defendant, was at defendant's residence during monitored drug transactions, and observed defendant in possession of cocaine), United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (inference was proper because reliable confidential informant had “observed someone come out of [the defendant's] residence, engage in a drug transaction, and then return into the residence”), and Berry, 565 F.3d at 339 (“Although a defendant's status as a drug dealer, standing alone, does not give rise to a fair probability that drugs will be found in defendant's home, there is support for the proposition that ...

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