United States v. Calhoun

          OPINION AND ORDER DENYING DEFENDANT'S AMENDED MOTION TO SUPPRESS EVIDENCE [DOC. 19]

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant Bobby Lee Calhoun, Jr.'s motion to suppress evidence discovered and seized during the search of two residences pursuant to two search warrants issued in this case. Defendant separately moves to suppress firearms found in the shed at one of the residences as obtained in violation of the Fourth Amendment's particularity requirement.

         The court heard oral argument on defendant's challenge to the sufficiency of the affidavits on July 17, 2019. For the reasons stated in this opinion and order, defendant's motion to suppress is DENIED.

         On December 1, 2018, DEA Special Agent Stacy Zirkle submitted two search warrant applications and affidavits for “bulk currency, documents, drug and other items indicative of drug trafficking [including illegal firearms and weapons] stored and maintained at” two residences belonging to defendant. Judge Alexis Krot of the 31st District Court in Wayne County Michigan issued two search warrants based on the applications and affidavits, one for the “Sanford Street residence” in Pontiac, Michigan and one for the “Cornerstone Village residence” in Southfield, Michigan. Defendant challenges the sufficiency of the affidavits supporting the search warrants. The following facts are taken from the affidavits.

         In November 2018, DEA and other law enforcement received information from a source of information (“SOI”) who identified the defendant and his wife as kilogram distributors of narcotics throughout the Detroit area. (Zirkle Aff. ¶ 2). The SOI disclosed that defendant and his wife live in Southfield, Michigan; that defendant drives a black Ford F-250 and an SUV; that defendant utilizes a house in Pontiac, which he calls the “Dog House, ” to hold narcotics for sale; and that defendant and his wife use the U.S. mail to send and receive money and narcotics. ¶ 2.

         SA Zirkle described law enforcement efforts to corroborate the information received from the SOI. Agents reviewed law enforcement indices and discovered several addresses for defendant and his wife in Pontiac and Southfield, including the two target locations. ¶ 3. The SOI identified a photo of the Sanford Street residence as “The Dog House.” Id. Agents confirmed that a 2008 Ford F-250 and a 2017 Kia Sorrento were registered to defendant at the Sanford Street address. Id.

         After confirming the information about the locations and vehicles, agents surveilled the two target residences. On November 14, 2018, agents drove by the Cornerstone Village residence and saw the Ford F-250 parked in front of the garage. ¶ 4. On November 15, 2018, agents drove by the Sanford Street residence and observed that the Kia Sorrento was parked in the driveway of the residence. ¶ 5. Agents also observed defendant walking quickly from the house to the sidewalk where he looked up and down the street. The agents considered this activity to be significant because they were aware that a package from the United States Postal Service was scheduled to arrive that day and they believed defendant was looking for a mail truck. Id.

         On November 17, 2018, agents intercepted a package that was sent from Tucson, Arizona to the Sanford Street residence. A K9 sniff gave a positive indication that narcotics were present in the package. ¶ 7. On November 19, 2018, Magistrate Judge Majzoub authorized a search warrant for the package. The package contained .555 kilograms of cocaine. ¶ 8.

         On November 27, 2018, agents surveilled the Cornerstone Village residence and observed the Kia Sorrento parked in front of the residence. ¶ 9. Thus, the Kia Sorrento was seen at both target locations.

         On November 30, 2018, Agent Zirkle “received information from a Source of Information, who has been deemed credible and reliable and whose information has led to a seizure of 500 grams of cocaine destined for CALHOUN at [the Sanford Street residence].” ¶ 11. The SOI said he observed a live video chat of bulk currency being stored in trash bags and suitcases at the Cornerstone Village residence. Id. The callers on the live chat, identified by the SOI as defendant's twin sons, identified the currency as drug proceeds from the sale of narcotics by defendant. Id. According to the SOI, the callers stated they planned to rob defendant for the money the next morning and might have to kill defendant in the process. The SOI was aware defendant's sons had stolen guns from defendant previously. Id. The SOI stated the stolen guns were not reported because defendant is a convicted felon. Id. The SOI stated that only two of the three stolen firearms were recovered. Id. The SOI was also aware that defendant stored weapons at the Cornerstone Village residence and the Sanford Street residence. Id.

         Special Agent Zirkle included general information that she knew about drug traffickers from her training and experience, including the fact that drug traffickers often store drugs and drug proceeds at different locations to thwart law enforcement efforts from seizing both drugs and drug proceeds. Zirkle also stated she is aware drug traffickers will travel to their stash locations with short stays to pick up drugs and deliver drugs to customers in the immediate vicinity. ¶ 13.

         Defendant makes three challenges to the search warrant affidavits. First, the SOI did not provide any information of illegal activity witnessed by him first-hand. Second, the only information provided by the SOI that was independently verified by the government was publicly available information - homes and cars owned by the defendant. Third, the claim in the affidavit that the SOI's “information led to a seizure of 500 grams of cocaine destined for CALHOUN at [the Sanford Street residence], ” is misleading at best. The package was not addressed to “Calhoun” but to “Robert Gonzalez” at the Sanford Street residence, and no one named Robert Gonzalez was known to be connected with the Sanford Street residence. These facts were omitted from the affidavit.

         I. Probable Cause

         To evaluate probable cause, courts are instructed “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it] . . . 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). The facts and circumstances taken as a whole must give the magistrate probable cause to believe the items sought will be found during the search. See, id., Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978). “[T]he affidavit supporting the search warrant must demonstrate a nexus between the evidence sought and the place to be searched.” United States v. Brown, 801 F.3d 679, 686 (6th Cir. 2015). “Reviewing courts ...