United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
F. COX UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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.
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.
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
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.
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
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.
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.
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