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United States v. Elizondo

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

April 24, 2018

United States of America, Plaintiff,
v.
Miguel Elizondo, Defendant.

          Mag. Judge, Mona K. Majzoub

          ORDER DENYING MOTION TO SUPPRESS [20]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE

         On December 12, 2017, Miguel Elizondo was named in a single-defendant five-count indictment on firearm and drug offenses. (Dkt. 10.) The charges are based on evidence seized by Dearborn, Michigan police officers pursuant to a warrant to search Elizondo's home issued by a state-court judge. Elizondo now moves to suppress that evidence. He argues that the warrant lacked probable cause because there was an insufficient nexus between the items to be seized and defendant's alleged criminal conduct, and it cannot be saved by the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984).[1] (Dkt. 20.) The government responds that the affidavit set forth probable cause, and if it did not, the good faith exception applies. (Dkt. 24.)

         I. Background

         The facts are not in dispute. On November 29, 2017, a Dearborn, Michigan police officer, Joshua Urbiel, who was then serving as a Corporal in the Dearborn Police Narcotics Unit, submitted a request for a search warrant to State of Michigan 19th District Court Judge Sam Salamey. The affidavit in support of the warrant had been reviewed by an Assistant Wayne County Prosecutor. The affidavit set forth Officer Urbiel's experience as a narcotics investigator and indicated that as a result of his training and experience, he is aware that drug traffickers conceal contraband, including drugs and firearms, in their homes, along with various records and large amounts of cash.

         The affidavit further indicated that Officer Urbiel had received information from a confidential informant, CI# 508, regarding a cocaine and fentanyl dealer that the CI knew as “Miguel.” CI #508 indicated that Miguel was a Hispanic man who “distributed drugs from a red Ford Explorer Sport Trac and possibly lived in the area of Silvery Lane and Cherry Hill, in Dearborn, MI.” (Dkt. 20 at 14.) The CI also indicated that he believed “Miguel supplies large quantities of cocaine, heroin, and fentanyl to area strip clubs.” (Id.)

         The affidavit goes on to describe how the affiant verified the information from CI# 508. For example, the CI provided a phone number for Miguel and the affiant traced it to a Miguel Antonio Elizondo, who lives at 460 Kingsbury, Dearborn, Michigan. Although that Elizondo had a 1965 date of birth, the affiant checked law enforcement databases and located a Michigan driver's license for a man with the same name and same address who is much younger, having been born in 1983. Officer Urbiel showed the license photograph to the CI, and he positively identified that individual as the defendant, Miguel Elizondo. Sure enough, Officer Urbiel went to the 460 Kingsbury address, and a red Ford Explorer Sport Trac was parked on the street next to the home. He then ran a lien check on the license plate number and the connection was complete. The Ford Explorer was registered to Miguel Elizondo, of 460 Kingsbury, in Dearborn, Michigan.

         A criminal history check revealed that Elizondo had the following “drug related charges/convictions:” a February 1990 felony drug conviction, a June 1992 felony drug conviction, an October 2008 felony prostitution-related conviction, and an August 2011 felony drug conviction. This information was contained in the affidavit. (Dkt. 20 at 14-15.)

         Officer Urbiel went on to describe the controlled buy in some detail. All of the usual activity took place to make sure the CI did not already have drugs on him, and his call to the defendant was monitored by Officer Urbiel. He was given pre-recorded money for the transaction and was kept under surveillance throughout the buy. Meanwhile, another Dearborn police corporeal was surveilling Elizondo's home on Kingsbury Street. That officer saw Elizondo exit the side door to his home and enter the red Ford Explorer Sport Trac that the CI had previously told them Miguel used to distribute drugs. At the hearing on this motion, the Court asked the government whether this officer saw anything in Elizondo's hands, or whether he was carrying a backpack or holding anything at all that might contain drugs or other contraband. Counsel for the United States indicated that he was not seen carrying anything. (Tr. at 31, March 26, 2018.)

         The affidavit indicates that the controlled buy was successful, and CI #508 turned over the suspected heroin. He and his vehicle were searched again with negative results. The suspected heroin was tested by the Dearborn Police Narcotics office and a preliminary field test confirmed that it was, indeed, heroin. Interestingly, “[f]ollowing the controlled purchase, surveillance was terminated on ELIZONDO.” (Dkt. 20 at 15.)

         Based upon this, Officer Urbiel believed there was probable cause to search Elizondo's home, and 48 hours later he submitted a warrant request with an affidavit setting forth the information above. State of Michigan 19th District Court Judge Salamey agreed. The warrant was executed the same day, November 29, 2017. Officers recovered drugs and guns from the house, and on December 12, 2017, Miguel Elizondo was indicted on three counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a): one count for distribution of heroin, another count for distribution of cocaine, and the third count for distribution of crack cocaine. The indictment also contained one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). This motion was filed in a timely manner on January 19, 2018, and the government responded. Oral argument was held on March 26, 2018.

         II. Anaylsis

         The Fourth Amendment requires that warrants be supported by probable cause. To be sufficient, the affidavit supporting the warrant must establish probable cause to believe that evidence of narcotics trafficking would be present at the place to be searched, in this case the 460 Kingsbury Street home on November 29, 2017. See United States v. Lattner, 385 F.3d 947, 951 (6th Cir. 2004) (citing United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). Probable cause is defined as “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). It is said to exist “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. Davidson, 936 F.2d at 859; see also United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003).

         In reviewing the sufficiency of a search warrant affidavit, the “magistrate's determination of probable cause is afforded great deference, ” and should only be reversed if arbitrarily made. United Statesv. Greene, 250 F.3d 471, 478 (6th Cir. 2001). The “review of an affidavit and search warrant should rely on a ‘totality of the ...


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