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United States v. Manning

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

June 27, 2018

United States of America, Plaintiff,
v.
Jason Manning and Gregory Hendon, Defendants.

          OPINION AND ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS

          SEAN F. COX UNITED STATES DISTRICT JUDGE.

         Five years ago, Detroit Police officers entered a known vacant apartment without a warrant. Inside, they found a shotgun, narcotics, and three men. Two of those men-Jason Manning and Gregory Hendon-have since been charged with various crimes stemming from the discovery of the firearm and narcotics. They have moved to suppress all evidence stemming from the warrantless entry, arguing that the officers violated their Fourth Amendment rights. For the reasons below, the Court shall deny their motion because Defendants have not shown that they had an objectively reasonable expectation of privacy in the vacant apartment.

         BACKGROUND

         Defendants Jason Manning and Gregory Hendon face numerous charges in a third superseding indictment. Together, they are charged with: possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 942(c); and felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Doc. # 66). The indictment also charges some crimes specific to each Defendant. For Hendon, two counts: use and carry of a firearm during and in retaliation to a drug trafficking crime causing death and crimes of violence causing death, 18 U.S.C. §§ 924(c) and (j), and conspiracy to possess with intent to distribute and to distribute controlled substances, 21 U.S.C. §§ 846 and 841(a)(1). For Manning, one count: possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1).

         In December 2017, Hendon filed several motions, including a motion to suppress, with which Manning concurred (Doc. # 35, 36). The Court held a hearing on these motions on February 16, 2018, after which it issued an opinion and order resolving most of them but, at the parties' request, adjourning the hearing on the motion to suppress to allow the parties to determine whether an evidentiary hearing was required (Doc. # 54).

         It was. The request evidentiary hearing proceeded slowly but surely across three dates in May: May 2, May 25, and May 29. The Government presented two witnesses-Detroit Police Sergeant Thomas Grzywacz and Detroit Police Officer Thomas Zberkot. It also introduced two exhibits-a videotaped interview between law enforcement officials and Manning and a proffer letter for David Griffin, the third man arrested in the apartment. The defense presented several witnesses-Griffin, William Van Slingerlandt, and Jay Van Slingerlandt-along with Manning, who testified on his own behalf.[1]

         After the hearing, the Court allowed the parties to file supplemental briefs (Doc. # 63) and they have done so (Doc. # 67, 68, 70). So, having heard and observed the witnesses who testified at the evidentiary hearing, allowing for this Court to assess credibility, having considered the exhibits submitted by the parties, 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.[2]

         FINDINGS OF FACT

         This case, like many, involves two competing versions of events. The first, from the Government, was presented primarily through the testimony of Sergeant Grzywacz. He testified that on the night of August 3, 2013, he and his partner, Derek Loringer, were on patrol in an unmarked car on Peterboro Street in Detroit. This was a high-crime area, narcotics trafficking and violent crimes in particular, that was patrolled daily.

         While on patrol, Grzywacz observed one or two people in the area, including a man he believed to be Gregory Hendon. Grzywacz was familiar with Hendon; he had previously written him loitering tickets and knew that “word on the street” was that Hendon trafficked narcotics. Upon seeing Grzywacz, Hendon immediately started running and entered a three-story residential apartment complex located at 473 Peterboro Street.

         Grzywacz was well familiar with this location, having been to the apartment building many times. In his experience, it was a frequent spot for narcotics trafficking. A few weeks prior, Grzywacz had spoken to an individual with access to the building, who he believed to be the owner. That person indicated that all but two of the units in the building were vacant. Grzywacz also, at some point, received keys to the front door of the apartment building and the vacant units inside. Although he did not recall specifically who gave him the keys, he believed it was someone associated with the apartment building in either an ownership or residential capacity.

         Seeing Hendon run inside, Grzywacz and his partner pursued Hendon into the building. Before they entered, they observed people inside up on the second floor. And, when they got inside, they heard movement up on the second floor as well. What Grzywacz did next is somewhat unclear-he either briefly glanced down the first floor hallway or he briefly checked the doors to the first floor apartments that were on his list. What is clear, however, is that he then made his way to the second floor, whereupon he and his partner entered apartment 201-a unit that Grzywacz knew to be vacant.

         In the apartment, the officers encountered three men-Jason Manning, Gregory Hendon, and David Griffin. Hendon was seated at a table, upon which there was a large sum of money (later determined to be just under $3, 000), lotto folds, narcotics, and a scale. There was also a shotgun resting in the corner by the door. After securing the apartment, the officers arrested all three men.

         Grzywacz's description of apartment 201 is corroborated by a statement made by Griffin to Officer Zberkot and others during a proffer on April 10, 2018. The proffer agreement obligated Griffin to tell the truth as to the events on August 3, 2013, and threatened various legal consequences if he failed to do so. During the proffer, Griffin stated that he did not live at 473 Peterboro on the date in question. Instead, he characterized apartment 201-a vacant apartment with very ...


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