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United States v. McGhee

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

May 8, 2018

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

          Mona K. Majzoub Magistrate Judge

          OPINION AND ORDER DENYING MOTIONS TO SUPPRESS EVIDENCE SEIZED PURSUANT TO SEARCH WARRANT [33, 39]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         1. Introduction

         On March 14, 2017, Defendant Lamont James McGhee was indicted on two charges: possession with intent to distribute and distribution of a controlled substance, under 21 U.S.C. §§ 841(a)(1), 841(B), (Count I); and possession of a firearm in furtherance of and during and in relation to a drug trafficking crime, under 18 U.S.C. § 924(c), (Count II). Dkt. No. 11, pp. 1-2 (Pg. ID 19-20). And on June 2, 2017, McGhee requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). See Dkt. No. 17. The Court denied his request in an Opinion and Order dated October 26, 2017. Dkt. No. 30.

         Then, on November 8, 2017, McGhee filed a Supplemental Motion to Suppress Evidence Seized Pursuant to the Search Warrant. Dkt. No. 33. The Government responded to the motion on November 21, 2018, and McGhee replied in support on November 29, 2017. See Dkt. Nos. 34, 35. Because this motion challenged the alleged use of a wiretap, and the Government then confirmed it did not use a wiretap here, the Court granted McGhee leave to file an additional motion to suppress. See Dkt. No. 37.

         McGhee filed on January 16, 2018 a Second Supplemental Motion to Suppress Evidence Seized Pursuant to the Search Warrant. Dkt. No. 39. The Government filed a brief in opposition on January 30, 2018. Dkt. No. 41. McGhee submitted a reply in support on February 6, 2018. Dkt. No. 42.

         Presently before the Court are the Defendant's Motions to Suppress Evidence Seized Pursuant to the Search Warrant [33, 39]. These motions are fully briefed. The Court held a hearing (and status conferences) regarding this motion over several dates in February and March 2018. For the reasons detailed below, the Court ruled from the bench and DENIED the Defendant's Motions to Suppress Evidence Seized Pursuant to the Search Warrant [33, 39]. The Court will explain its rationale below.

         II. Background

         The search warrant and affidavit at issue here was authored by James Onyski, a Deputy Sheriff for Macomb County, Michigan. In the affidavit, Onyski first noted that officers had tried to collect McGhee's trash on “countless” occasions, but his trash was never on the street.

         Yet on January 3, 2017, after midnight, but before daylight, Onyski and fellow Macomb County Detectives Scott Gallus and Keith Davlimnck observed trash bags on the curb outside of McGhee's residence. Onyski wrote that Gallus placed the trash bags in the police vehicle and the detectives then returned straightaway to their office.

         Onyski continued that the trash contained items associated with drug dealing, including wrappers with cellophane-like material and tape, boxes of Arm & Hammer baking soda, dryer sheets, and sandwich baggies. Additionally, in a field test, the wrappers tested positive for cocaine, according to Onyski.

         All three detectives testified at the suppression hearing. And at the hearing, all three testified that they collected only McGhee's trash that morning. Indeed, they said they were unable to locate any other target's trash prior to reaching McGhee's home and after collecting McGhee's trash, they proceeded directly to their office, not making any stops in between.

         III. Discussion

         According to the Defendant, the Court must suppress the evidence discovered pursuant to the search warrant and affidavit because that document lacks probable cause. Specifically, McGhee maintains the detectives' testimony suggests that there was no probable cause for the search warrant. The Court disagrees. The detectives' testimony indicates that the trash ...


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