United States v. Cooper

          ORDER DENYING MOTION TO SUPPRESS EVIDENCE

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         I. Introduction

         Omar Cooper is charged with two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922. These charges stem from a search of two properties associated with Mr. Cooper, one of which is his personal residence (the “Nottingham House”), and the other is a house he owns and from which he allegedly conducted sales of crack cocaine (the “Berkshire House”). Mr. Cooper contends that the search of the Nottingham House was unconstitutional because the affidavit supplied in application of the search warrant “did not provide probable cause that the home would contain evidence of a crime.” ECF No. 16, PageID.42 (citing U.S. Const. amend. IV). Accordingly, Mr. Cooper seeks to suppress the evidence seized from the Nottingham House as “fruits of an unlawful search.” ECF No. 16, PageID.43 (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). Mr. Cooper does not contest the search of the Berkshire House.

         II. Background

         As Mr. Cooper notes in his motion, nearly all of the facts recounted in the affidavit supporting the warrant pertain to the Berkshire House. In the section titled “Probable Cause, ” Special Agent Dent provides 15 paragraphs of information in support of her application for the search warrants. ECF No. 16-2, PageID.63-73. Of those 15 paragraphs, only three deal with the Nottingham House. ECF No. 16-2, PageID.72-73. The other 12 paragraphs focus on activities at the Berkshire House, providing ample probable cause to support a search warrant for that location. For this reason, Mr. Cooper does not challenge the warrant for the Berkshire House. Rather, he contends that the three paragraphs about Nottingham House are insufficient to establish probable cause to search his personal residence.

         In Paragraph 18, SA Dent says that a confidential informant (“DPD-1”) “understands” that Mr. Cooper uses the Nottingham House to “cook” narcotics. ECF No. 16-2, PageID.72. DPD-1 says that this information is based on conversations with Cooper, but DPD-1 did not say that he or she personally witnessed Mr. Cooper or anyone else cooking narcotics in the Nottingham House. ECF No. 16-2, PageID.72.

         In Paragraph 19, SA Dent says that at some time in November 2018, DPD-1 “personally observed a digital scale and a Pyrex jar (commonly used to cook crack cocaine) with white cloudy residue located in the kitchen [, as well as] multiple large chunks of crack cocaine on the kitchen counter next to the digital scale and Pyrex jar” at the Nottingham House. ECF No. 16-2, PageID.72. SA Dent says that DPD-1 “observed COOPER place large chunks of crack cocaine inside of a plastic bag inside” the Nottingham House. ECF No. 16-2, PageID.72.

         In Paragraph 20, SA Dent states that “agents conducted surveillance of [Nottingham House].” ECF No. 16-2, PageID.72. During that surveillance, according to SA Dent, an agent “observed the dark gray Ford F-150 backed into the driveway[, ]” and SA Dent says that the vehicle was similar to one seen at the Berkshire House previously being driven by the Defendant. ECF No. 16-2, PageID.72-73.

         Both homes were searched on December 19, 2018. ECF No. 18, PageID.88. A return^[1] is attached as an exhibit to Mr. Cooper's motion, showing numerous items that were apparently seized during the searches. ECF No. 16-2, PageID.84-85. Those items include numerous firearms and ammunition, multiple cell phones, cash, a small quantity of what may be marijuana, six unidentified pills, two photographs of Mr. Cooper, miscellaneous proofs of residence for Mr. Cooper, and $1, 100.00 in cash. ECF No. 16-2, PageID.84-85.

         III. Argument

         Mr. Cooper argues that the information in the affidavit relating to the Nottingham House is deficient. First, he argues that the information about the Nottingham House comes from an uncorroborated tip provided by an unnamed informant. ECF No. 16, PageID.47-52. Next, he argues that the information provided by the informant was stale at the time the affidavit was made, failing to provide probable cause of a “presently existing condition” at the Nottingham House. ECF No. 16, PageID.52- 54. Lastly, Mr. Cooper argues that the evidence seized from the Nottingham House “must be suppressed because the agents did not rely upon the warrant in good faith.” ECF No. 16, PageID.54-55. He claims that “the warrant affidavit so lacked the requisite indicia of probable cause that it was ‘entirely unreasonable' for an official to rely on it.” ECF No. 16, PageID.55.

         The Government opposes this motion, arguing that “the facts that established that Cooper was a member of a continual and ongoing drug trafficking operation [make it] reasonable to conclude that he keeps evidence of his illegal scheme in his residence.” ECF No. 18, PageID.95. The Government responds that “‘facts showing that the residence has been used in drug trafficking' are not required to find probable cause” when a defendant is involved in a “continual and ongoing drug trafficking operation.” ECF No. 18, PageID.95 (citing United States v. McCoy, 905 F.3d 409, 417-18 (6th Cir. 2018); and United States v. Brown, 828 F.3d 375, 383 & n.2 (6th Cir. 2016)) (quotation marks omitted).

         The Government notes that the affidavit relied on information from DPD-1 and also from information gained during a traffic-stop on December 12, 2018. ECF No. 18, PageID.96. In that stop-which appears to be unrelated to the investigation of Mr. Cooper-a woman passenger in the car informed police that she purchased drugs from the Berkshire House, that the Berkshire House is owned by “O”^[2] (an alias for Mr. Cooper), and that “O” carried a gun on his person. ECF No. 18, PageID.96; ECF No. 16-2, PageID.69-70. She also provided a phone number for “O” to police. ECF No. 18, PageID.96; ECF No. 16-2, PageID.70. This information corroborated the tip from DPD-1, who also said that Mr. Cooper carried a gun, and who provided the same phone number for Mr. Cooper. Compare ECF No. 16-2, PageID.63 with ECF No. 16-2, PageID.69-70. The Government admitted at the hearing that no one had verified whether this number actually belonged to Mr. Cooper, but that does not change the fact that two informants, independent of each other, supplied the same information when they were identifying Mr. Cooper.

         The Government opposes Mr. Cooper's characterization of DPD-1 as an unreliable source, saying instead that DPD-1 had worked with the police before and had proven to be reliable. ECF No. 16, PageID.98. The Government also claims that because elements of DPD-1's tip were ...