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United States v. Battles

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

July 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RAY S. BATTLES, JR., Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE [24]

          Nancy G. Edmunds United States District Judge.

         Defendant Ray S. Battles, Jr. is charged in this matter with one count of possession of ammunition by a prohibited person in violation of 18 U.S.C. § 922(g) and one count of maintaining a drug-involved premises in violation of 21 U.S.C. § 856. (Dkt. 13.) The matter is before the Court on Defendant's motion to suppress evidence. (Dkts. 24, 32.) Defendant moves to suppress all evidence seized during the execution of a search warrant in February 2019 at his home on Blackmoor Street in Detroit, Michigan. The government opposes the motion. (Dkt. 26.) The Court held oral arguments on the motion on May 30, 2019. The Court also allowed the parties to file supplemental briefs following the Sixth Circuit's en banc decision in United States v. Christian, 925 F.3d 305 (6th Cir. 2019). (Dkts. 34, 35.) For the reasons set forth below, Defendant's motion is GRANTED.

         I. Background

         The search warrant at issue in this case was executed on February 15, 2019. The warrant was issued pursuant to an affidavit sworn by an ATF Special Agent and approved by a federal magistrate judge on February 6, 2019. (Dkt. 24-2.) The affidavit indicated that Defendant was under investigation for the distribution of controlled substances and being in possession of a firearm. (Id. at PgID 70.)

         The information supporting probable cause for the search was organized under two subheadings: “The Subject Premises, June to August of 2018” and “BATTLES' Facebook Account.” Under the first subheading, the affidavit set forth in part that 1) the Detroit Police Department executed a state search warrant at the Blackmoor residence in June 2018 and found marijuana, prescription pills, two firearms, and assorted ammunition; 2) surveillance conducted between July and August 2018 revealed continuing evidence of drug trafficking from the Blackmoor residence; 3) ATF executed a federal search warrant on August 8, 2018 and found marijuana, prescription pills, packaging material for narcotics, a small amount of crack cocaine, two firearms, and ammunition. (Id. at PgID 71-73.) Under the second subheading, the affidavit set forth that the affiant conducted a review of data from Defendant's “open source Facebook social media account” on January 15, 2019. (Id. at PgID 74.) The most recent posts she found were 1) an image of a revolver posted on January 10, 2019, with a message “[a]bout to buy this .38 special;” 2) a message posted on December 21, 2018, stating “Wayne county prosecutor trying to take my house they say I am running a drug operation . . . leave me alone . . .”; 3) an image of a rifle posted on December 4, 2018, with a message stating, “AR 15 do not make me bring my baby back out;” 4) a message on November 28, 2018, stating “I hate trapping I can't never go no where;”[1] and 5) a message on October 18, 2018, stating “[w]ho need perks 10 a pop.”[2] (Id. at PgID 75-77.)

         II. Analysis

         Defendant argues the February 2019 warrant lacked probable cause because the information set forth in the underlying affidavit regarding the searches and surveillance that took place in the summer of 2018 was stale and the more recent Facebook posts failed to demonstrate a nexus between the suspected criminal activity and the Blackmoor residence. The government argues that Defendant's Facebook posts were sufficient to establish ongoing criminal activity at the Blackmoor residence and even if the affidavit lacked probable cause, it is saved by the Leon good-faith exception.

         A. Probable Cause

         To determine whether probable cause for a search exists, the judge issuing a warrant must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). While the magistrate judge's determination of probable cause is owed “great deference, ” the reviewing court must “ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 236, 238-39 (internal quotation marks and citation omitted).

         In order to establish probable cause, there must be “a nexus between the place to be searched and the evidence sought.” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (internal quotation marks and citation omitted). “In other words, the affidavit must suggest that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought and not merely that the owner of property is suspected of a crime.” Id.

         Moreover, “stale information cannot be used in a probable cause determination.” United States v. Perry, 864 F.3d 412, 414 (6th Cir. 2017) (quoting United States v. Frechette, 583 F.3d 374, 377 (6th Cir. 2009)). Temporal proximity is necessary “to eliminate the possibility that a transfer in ownership or a cessation of illegal activity had not taken place.” United States v. Hython, 443 F.3d 480, 486 (6th Cir. 2006). Whether information is stale is a flexible inquiry that does not “create an arbitrary time limitation within which discovered facts must be presented to a magistrate.” United States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001) (internal quotations and citation omitted). In considering the length of time between the events listed in the affidavit and the application for the warrant, courts consider the following factors:

(1) the character of the crime (chance encounter in the night or regenerating conspiracy?), (2) the criminal (nomadic or entrenched?), (3) the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), and (4) the place to be searched (mere criminal forum of convenience or secure operational base?).

United States v. Young, 847 F.3d, 328, 347 (6th Cir. 2017) (quoting Frechette, 583 F.3d at 378).

         With regard to the first factor of the staleness inquiry, “the passage of time becomes less significant when the crime at issue is ongoing or continuous.” Hython, 443 F.3d at 485. The sale of drugs out of a residence “is not inherently ongoing” but rather “exists upon a continuum ranging from an individual who effectuates the occasional sale from his or her personal holdings of drugs to known acquaintances, to an organized group operating an established and notorious drug ...


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