Pending before the Court are numerous pre-trial motions filed by six defendants and the government.*fn1 All six defendants have filed motions to suppress evidence seized through physical searches of their homes or homes to which they had a connection; defendant Scurry moves to suppress evidence seized during a search of his vehicles. Defendant Hudson also moves to suppress statements he made during the search of his home. Scurry, Savoy, and Brown have filed additional miscellaneous motions which are dealt with in turn below. Finally, the government has filed one motion to allow impeachment of defendants Hudson and Robinson with their prior felony convictions.
Upon consideration of the defendants' and government's motions, responses of the parties, and relevant law, the Court hereby DENIES defendants' motions to suppress physical evidence [35, 37, 38, 58, 63, 67, 89, 101, 201]; DENIES Savoy's Motion for a Pretrial Hearing , DENIES Scurry's Motion to Compel Disclosure of Information Regarding Confidential Informants, Witnesses, and Cooperating Criminals ; DENIES Scurry's Motion for a Bill of
Particulars ; DENIES Scurry's Request for Notice Prior to Trial of Government's Intention to Present Evidence Pursuant to 404(b) ; DENIES Scurry's Motion for Discovery of Detector Dog Information ; DENIES Brown's Request for Preservation of Electronic Mail
; and GRANTS Hudson's Motion to Suppress Statements . The Court does not rule today on the Government's Motion to Impeach Defendants with Prior Convictions Pursuant to Rule 609 .
In 2009, prompted by renewed violence in the 4200 block of Fourth Street, S.E., Washington, D.C., the Federal Bureau of Investigation's (FBI) Safe Streets Task Force began investigating the cocaine and crack dealers in that area. Agents and detectives introduced a confidential informant into the area, who made a series of controlled purchases of crack cocaine from Eric Scurry from November 2009 to March 2010. In addition to reliance on physical and audio- and video-surveillance, the task force also secured warrants to intercept cellular telephone wire communications of defendants Scurry, Hudson, Savoy, and Johnson.
The government's theory, as outlined in the affidavits, suggests that Jerome Johnson sold wholesale amounts of powder cocaine to Robert Savoy. Gov't Omnibus Resp. Defs.' Mots., Ex. 8, at 9, ECF No. 111-8. Savoy also collaborated with James Brown to buy wholesale quantities of cocaine. Id. Savoy then re-sold powder cocaine and crack cocaine to others, including Terrence Hudson and an unindicted suspect. Id. Hudson, Brown, and a second unindicted suspect resold powder and crack cocaine to others. Specifically, Hudson would resell to Eric Scurry and two additional unindicted suspects. Id. Finally, Nathan Robinson allegedly sold narcotics in the same geographic area as Scurry and a fifth unindicted suspect and the three would assist one another with sales in that area. Id.
Based on the evidence generated during this investigation, a grand jury issued multiple indictments against various alleged co-conspirators. The most recent, the Third Superseding Indictment issued in December 2011, charged Savoy, Hudson, Johnson, Eric Scurry, Robinson, and Brown, with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or More of Cocaine and 280 Grams or More of Cocaine Base, in violation of Title 21, United States Code, Section 846. The indictment also included an additional thirty seven substantive counts against defendants.
Defendants filed motions to suppress evidence obtained from the government's interceptions of their wire communications. This Court denied those motions in August 2012. The Court now considers additional pre-trial motions filed by defendants and the government.
II.Motions to Suppress Evidence Seized through Searches [35, 37, 38, 58, 63, 67, 89, 101, 201]
Each of the six defendants has filed a motion to suppress physical evidence recovered during a search of his residence and defendant Scurry has filed a motion to suppress evidence recovered from his vehicles. Between November 7 and November 9, 2010, Special Agent ("SA") Christopher M. Ray of the FBI submitted three applications for search warrants to the U.S. District Court for the District of Maryland and the U.S. District Court for the District of Columbia. Gov't Omnibus Resp. Defs.' Mots., Exs. 2, 4, 5, 7, 9--11, ECF No. 111-2, 111-4, 111-5, 111-7, 111-9--111-11. SA Ray requested search warrants for eight locations in Maryland and three locations in the District of Columbia, including the residences of all six defendants, as well as warrants for three vehicles, belonging to Scurry. Id. The warrant applications were accompanied by lengthy affidavits from SA Ray. Gov't Omnibus Resp., Exs. 3, 8, 12, ECF No. 111-3, 111-8, 111-12.
The affidavits included facts gleaned from the FBI's lengthy investigation into the distribution of powder and crack cocaine in and around the Washington, D.C. metro area. Gov't Omnibus Resp., Ex. 8, at 8. Specifically, they detailed information obtained from cooperating witnesses, controlled buys, physical surveillance, and finally, intercepted wire communications from the wiretaps authorized by Judge Henry H. Kennedy of the U.S. District Court for the District of Columbia. Id. According to SA Ray, each of the defendants had drug trafficking related communications or interactions with one or more co-defendants, controlled buyers, and/or unindicted suspects. Id. at 9--10. The affidavits also outlined the government's theory regarding the defendants" alleged criminal activities. Finally, each of the co-defendants and unindicted suspects whose residences the government sought to search had at least one, and typically multiple, prior narcotics charges or convictions. Id. at 10--21.
i.Fourth Amendment Protections Generally
The Fourth Amendment protects against unreasonable searches and seizures by government actors. U.S. Const. amend. IV. Warrantless searches are generally per se unreasonable subject to limited exceptions. Katz v. United States, 389 U.S. 347, 357, (1967) ("[T]his Court has emphasized that . . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.") (citations omitted). Thus, a warrant is usually required before a search may be conducted and the warrant must be supported by probable cause. U.S. Const. amend. IV; Katz, 389 U.S. at 357--58.
For a warrant to issue, the magistrate must make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, 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, 237 (1983). Thus, a probable cause determination encompasses both the probability that criminal activity is afoot, as well as a nexus between that activity and the place to be searched. Additionally, probable cause may not be based on mere allegations or conclusory statements. See id. at 239 (citing cases in which "wholly conclusory" or "bare bones" affidavits failed to provide a sufficient basis for probable cause).
Suppression of evidence derived from an unlawful search is the baseline remedy for Fourth Amendment violations. However, as will be described in more detail below, this exclusionary rule has, for almost thirty years, been subject to a significant exception in cases where officers conducted the search pursuant to a warrant.
ii.Standing to Challenge an Allegedly Unlawful Search or Seizure
A defendant must have standing to challenge an allegedly unlawful search or seizure and to seek suppression of evidence derived therefrom. Fourth Amendment rights are "personal" rights and may not be asserted by third parties. Rakas v. Illinois, 439 U.S. 128, 132--34 (1978). Thus, to challenge the validity of a search or the introduction of evidence seized therefrom, an individual must have a "legitimate expectation of privacy" in the place searched. Id. at 143.
One moving to suppress evidence on the basis of an illegal search bears the burden of demonstrating that his own Fourth Amendment rights were violated by the search. Id. 131 n.1 (citations omitted). In Rakas, for example, the court held that petitioners lacked standing in part because they made "no showing that they had any legitimate expectation of privacy" in the areas searched. Id. at 148.
An individual's expectation of privacy is perhaps at its height in his own home. However, individuals often have standing to challenge searches of places other than their own homes, including vehicles or the residence of another. Id. at 142 (citing Jones v. United States, 362 U.S. 257, 265 (1960)). This is part due to the Supreme Court's finding that Fourth Amendment rights do not depend upon "a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. at 143.
Some early cases suggested that an individual might have standing to challenge the search of a location if he was "legitimately on premises." See Jones, 362 U.S. at 267 (holding that a guest staying temporarily in a friend's apartment had standing to challenge the search of that apartment). However, subsequent cases have made clear that mere legitimate presence at a location does not automatically confer standing to challenge a search of that location. See Rakas, 439 U.S. at 142--43 (noting that Jones "merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home" and rejecting the notion that merely being "legitimately on premises" confers standing to challenge a search of that location). Rakas outlined a number of factors which, in Jones,had given rise to standing, including the fact that the movant had permission to stay in the apartment, had been given a key to the apartment, kept belongings there, and had "complete dominion and control over the apartment and could exclude others from it." Rakas, 439 U.S. at 142--43, 149.
Subsequent to Jones and Rakas, however, the Supreme Court made clear that a guest in another's home need not have the level of "dominion and control" over the residence that gave rise to standing in Jones. The Court, in Minnesota v. Olson, held that an overnight guest had standing to challenge the warrantless search of his host's home. 495 U.S. 91, 98--99 (1990). In finding that the individual had a "legitimate expectation of privacy" in his host's home, the Court emphasized societal expectations of privacy in such circumstances and noted that "[w]e are at our most vulnerable when we are asleep [for example, in another's home] because we cannot monitor our own safety or the security of our belongings." Id. at 99.
With respect to vehicle searches, Supreme Court precedent suggests that a defendant may have standing to challenge the search of a vehicle in which has a property or possessory interest. See Rakas, 439 U.S. at 148 (rejecting petitioners' claims in part because they "asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized"). Moreover, the fact that a vehicle is registered in another's name need not negate standing for one who has some privacy interest in the vehicle. See, e.g., United States v. Williams-Davis, 1992 WL 26025, at *1--2 (D.D.C. 1991) (holding that defendant had standing to challenge search of car that he used and drove even though the car was registered in his aunt's name and the ownership of the car was disputed).
In making a probable cause determination for purposes of issuing a warrant, a magistrate should make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238 (1983). The magistrate's decision is owed "'great deference by reviewing courts.'" Id. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969); accord United States v. Spencer, 530 F.3d 1003, 1006--07 (D.C. Cir. 2008)). The magistrate's decision should not be subjected to de novo review. Id. The Supreme Court has directed that reviewing courts should not "invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Id. (citation omitted). "[S]o long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Id. at 236--37 (quoting Jones, 362 U.S. 257, 271 (1960)).
In examining whether probable cause existed to grant a search warrant, reviewing courts look at the "totality of the circumstances" rather than considering facts in isolation. Id. at 238. Relevant factors may include the affiant's experience and training, the reliability of any informants, prior similar criminal acts by individuals allegedly participating in the investigated criminal activity, etc. See, e.g. United States v. Laws, 808 F.2d 92 (D.C. Cir. 1986) (discussing the importance of the affiant's experience and noting that the criminal records of the suspects bore "weightily" on the issue of probable cause). While each fact within an affidavit may be insufficient when standing alone, the combination of all of the facts can establish probable cause. See United States v. Catlett, 97 F.3d 565, 574 (D.C. Cir. 1996); United States v. Halliman, 923 F.2d 873, 881 (D.C. Cir. 1991).
Of particular importance to this case is the magistrate's ability to look to the affiant's experience in putting potentially ambiguous or seemingly innocent conduct into context. See United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). The D.C. Circuit has recognized the role that law enforcement experience can play in probable cause determinations. In United States v. Laws, for example, the court noted that an officer's more than ten years of experience in investigating narcotics distribution "enabled him to fit the informants' descriptions of the suspects' behavior into a pattern familiar to drug-law enforcers" and to recognize facts as part of a modus operandi typical of drug trafficking. 808 F.2d 92, 103 (1986). "Law-enforcement officers may draw upon their expertise in translating activity that appears innocuous to the untrained mind into grounds supporting a search or arrest warrant. . . . In assessing probable cause, as the Supreme Court has declared, 'the evidence . . . collected must be seen and weighed not in terms of analysis by scholars, but as understood by those versed in the field of law enforcement.'" Id. at 103--04.
Also relevant to this case is the ability of magistrates, in making a probable cause determination, to consider the past criminal involvement of the target of a warrant. The D.C. Circuit has noted that the prior drug trafficking records of suspects may be one factor corroborating other information forming the basis of a probable cause decision, for example, the reliability informants' statements. Id. at 104.
As already mentioned, probable cause requires not only a fair probability of criminal activity but also a nexus between that activity and the place to be searched. In other words, it requires "a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 237 (emphasis added). The D.C. Circuit has held that "'observations of illegal activity occurring away from the suspect's residence, can support a finding of probable cause to issue a search warrant for [the suspect's] residence." United States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993) (per curiam). The court in Thomas noted that the nexus simply requires a "reasonable basis to infer from the nature of the illegal activity observed, that relevant evidence will be found in the residence." Id. at 1255. In that case, probable cause to infer that evidence would be found in defendant's residence was supported by the affiant officer's statement that, "in his experience, drug dealers frequently keep business records, narcotics, proceeds from sales, and firearms in their houses." Id. at 1254; see also id. at 1254--55 (citing cases from the Eighth and Ninth Circuits finding probable cause to search residences of those suspected of drug-related activities).
To establish probable cause, the facts relied upon in the government's application must also support an inference that evidence of a crime will be found in the place to be searched at the time of the search. This is often referred to as a requirement that information supporting the application not be "stale." The D.C. Circuit has noted that, while not controlling, the length of time between an event supporting the issuance of a warrant and the actual application of a warrant is an important factor. United States v. Webb, 255 F.3d 890, 904 (D.C. Cir. 2001) (citing Schoeneman v. United States, 317 F.2d 173, 177 (D.C. Cir. 1963); Sgro v. United States, 287 U.S. 206, 210 (1932)). However, Courts need not simply look to the number of days or months between events in determining whether information is stale. Rather they may look to the type of criminal activity alleged, the characteristics of the suspect and the evidence sought, and the nature of the place to be searched. See United States v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981) (noting that a court may examine the character of "'the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.'") (quoting Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975), aff'd, 427 U.S. 463 (1976)).
The D.C. Circuit has upheld searches based on information obtained at
least 109 days prior to application for the warrant, though it has
expressed some discomfort with delays this
long.*fn2 See, e.g., Webb, 255 F.3d at 904. Again,
however, the Circuit's decisions have not relied solely on a numerical
calculation of elapsed days. For example, in Schoeneman v. United
States, the court held that probable cause did not exist to believe
that unlawfully held classified documents would be recovered from
defendant's home. The warrant affidavit was based on a tip that the
documents had been seen at the defendant's residence 107 days prior to
the warrant application. Schoeneman, 317 F.2d at 177--78.*fn3
In Webb, the Circuit upheld a search based on information 109
days old, but found it "troubling" that the warrant to search for
documents related to narcotics trade was based on information of that
vintage. 255 F.3d at 904. Nevertheless, the Webb court upheld the
search because, even if the information was too stale to support a
showing a probable cause, the Leon good faith exception made
suppression inappropriate. Id. at 904--05. In support of its finding,
the court distinguished Schoeneman as relating to a "single-incident
crime." Webb, 255 F.3d at 905 (noting that the warrant in Schoeneman
had issued on the basis "solely of an informant's statement that he
had seen classified documents in the defendant's home on [a] single
occasion"). In contrast, the Webb affidavit suggested ongoing or
recurring narcotics transactions and contained an informant's
statement that Webb had been selling drugs "'for an extended period of
time.'" Id. The court noted that "[c]courts have been considerably more
lenient in assessing the currency of information supporting probable
cause in the context of extended conspiracies than in the context of
single-incident crimes" and continued that "it would not necessarily
have been unreasonable for an officer to conclude that a longtime drug
dealer, whose most recent known deal had occurred three months earlier, would still retain papers permitting him to get
back in touch with his customers or . . . his supplier." Id.
Likewise in United States v. Bruner, the D.C. Circuit rejected an argument that a January 1978 affidavit was based on stale information when it relied on information from the previous summer or early fall. 657 F.2d 1278, 1298 (D.C. Cir. 1981). The Court emphasized that the information related to a suspect who had been involved in a drug trafficking conspiracy for six years, that the conspiracy continued to exist, and the suspect lived at the place to be searched. Id. at 1298--99. The Court also noted that the evidence included in the affidavit (observation of a drug display cabinet in the suspect's home) had long been kept in defendant's residence and that the suspect had expressed his intention to keep the cabinet as long as he sold drugs. Id. at 1299.
iv.Leon Good Faith Exception
Even where a reviewing court disagrees with the magistrate's finding of probable cause, such disagreement does not automatically suggest the need to suppress evidence uncovered during the search. In United States v. Leon, the Supreme Court confirmed a "good faith" exception to the exclusionary rule. 468 U.S. 897 (1984). Specifically, the Court held that law enforcement officers may rely on the probable cause determination of the magistrate approving the search warrant. Id. at 922. As long as the executing officer relied in good faith on the warrant, the exclusionary rule does not apply. Id. at 920. In fact, the D.C. Circuit has noted that the degree of deference owed by police to the magistrate's probable cause determination is even greater than the "great deference" owed by reviewing courts to that determination. Spencer, 530 F.3d at 1007 ("[T]he 'degree of police deference to the magistrate which is perceived by courts as reasonable under Leon exceeds significantly that 'great deference' owed the magistrate by reviewing courts under Gates.'") (quoting 1 Wayne R. Lafave, Search and Seizure § 1.3(f), at 97--98 (4th ed. 2004)).
The Supreme Court has limited application of the Leon "good faith" exception and suppression of evidence remains an appropriate remedy where: (1) "the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;"*fn4 (2) "the issuing magistrate wholly abandoned his judicial role"; (3) the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or (4) the warrant was "so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923.
Only two of these exceptions to the exception are raised by defendants, namely that the affiant relied, knowingly or with reckless disregard for the truth, on false information and that the affidavit was so lacking in indicia of probable cause as to render it unreasonable to rely on.
There appear to be few cases granting motions to suppress on the basis of the third exception to Leon (that the affidavit was so lacking as to render reliance entirely unreasonable). However, the cases appear to include situations where, for example, the affidavit failed to link the suspect to the location to be searched, and failed to explain why the affiant believed evidence of criminal activity would be found at the location, failed to explain why evidence would be present long after officers received relevant information to support the affidavit. See, e.g., United States v. Johnson, 322 F. Supp. 2d 35, 39 (D.D.C. 2004). In another case, discussed in more detail below, officers learned 178 days prior to issuance of a warrant that photographs showing illegal activity had been taken in a suspect's home. United States v. Lindsey, 596 F. Supp. 2d 55 (2009). This Court held that the affidavit at issue was so lacking in indicia of probable cause as to make reliance upon it unreasonable. The affidavit did not specify when the photographs had actually been taken, and therefore when the criminal activity had occurred. Moreover, there was no additional corroborating evidence subsequent to the discovery that the photos were taken in Lindsey's home. Finally, the Court reiterated that the case involved a single-incident crime, rather than an ongoing crime for which evidence of criminal activity would presumably be present in the location to be searched for a longer period of time.
Cases finding that the Leon requirements were not met appear to be the exception rather than the rule. As the D.C. Circuit has noted, "'[w]hen officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish good faith without a substantial expenditure of judicial time.'" Spencer, 530 F.3d at 1007 (quoting Leon, 468 U.S. at 924).
i.Hudson Motions to Suppress [35, 63]
Defendant Terrence Hudson filed two nearly identical motions arguing that the November 10, 2010 search of his home at 6902 Hudson Avenue, Oxon Hill, Maryland, was unlawful and urging suppression of evidence seized pursuant to that search. Def. Hudson's Mot. Suppress Phys. Evid. 1, ECF No. 35; Def. Hudson's Mot. Suppress Phys. Evid. 1, ECF No. 63.*fn5
That search resulted in the seizure of various items including a firearm and ammunition; a plate, straw, razor, and scale with residue; various rock-like substances; over $6,000 in cash; and cell phones and documents. Gov't Omnibus Resp. Defs.' Mots., Ex. 5, at 4--5, ECF No. 111-5.
Mr. Hudson concedes that he lived at the home searched and this is supported by the information contained in SA Ray's affidavit. Hudson's Mot. 5. Hudson thus has standing to challenge the search and seizure.
Hudson argues that the government's warrant affidavit did not establish probable cause. Hudson's Mot. 5. Specifically, he points to the affidavit's reliance on admittedly ambiguous wiretapped conversations between Hudson and co-defendant Savoy. In one such conversation, Savoy told Hudson "I just got a new pair of shoes, I'm getting ready to go in here and try em on right now." Hudson replied, "Alright, let me know something." Gov't Omnibus Resp. Defs.' Mots., Ex. 8, at 28, ECF No. 111-8. Savoy responded that he would "let [Hudson] know in about 40 minutes" and an hour later called to state "we real cool . . . you can run all day if you want to." Id. at 28--29. Four days later, Savoy called Hudson to ask "What's the word?" Hudson replied, "Oh yeah that's straight right there. I need to see you when you get out." Id. at 30. The two then drove separately to a parking lot in Oxon Hill, Maryland where Savoy got into Hudson's vehicle for less than 30 seconds before returning to his own vehicle. Each then drove away in different directions. Id. at 31.
Special Agent Ray interpreted these conversations to include narcotics code language and to relate not to shoes, but to drugs. Id. at 28--29. He argued that "try[ing] on" the "shoes" referred to cooking cocaine into cocaine base or crack cocaine to test the quality. Id. According to SA Ray, Savoy's comment, "we real cool," and Hudson's comment, "that's straight," were references to the satisfactory quality of the drugs Savoy provided Hudson. Id. at 29. SA Ray also believed that during the meeting in the parking lot, Savoy provided Hudson with another supply of drugs. Id. at 31.
Hudson argues that SA Ray's interpretations of the wiretapped conversations amount to "conclusory explanations . . . insufficient to make up for the lack of probable cause" that contraband would be found at Hudson's residence. Hudson's Mot. 6. Specifically, Hudson suggests that codes are usually used more than once and that the mention of "a new pair of shoes" in only one call does not support the inference that the phrase was code for drugs. Hudson's Mot. 8. He argues that more corroboration was necessary to show probable cause that Hudson was part of the conspiracy and that his home would contain illegal drugs or other evidence of criminal activity. Hudson's Mot. 6.
Hudson goes on to suggest that Leon's good faith exception does not save the allegedly defective warrant because the affidavit was so lacking in indicia of probable cause as to make reliance upon it unreasonable. Hudson's Mot. 6--7. Again, Mr. Hudson argues that the affidavit's reliance on coded conversations cannot support the officers' good faith reliance on the warrant. Hudson's Mot. 8.
2.Probable Cause Existed to Search Hudson's Residence
Hudson's motion downplays or fails to mention several key pieces of information. First, Special Agent Ray has served on a drug and violent crime squad since October 2008 and, prior to that, was a Public Safety Officer and Detective for approximately eight years with the Highland Park Department of Public Safety in Highland Park, Texas. Gov't Omnibus Resp. Defs.' Mots., Ex. 8, at 1--2, ECF No. 111-8. His affidavit provides some eight pages of information detailing his experience, training, and involvement in the present investigation as well as patterns he has observed in other drug trafficking investigations. Id. at 1--8. As outlined above, his experience and interpretations are entitled to some weight.
Second, two cooperating witnesses informed the FBI that Hudson sold crack cocaine and that he had been seen with defendant Scurry. Id. at 21--23. Cooperating Witness ("CW1"), for example, had been cooperating with the FBI since July 2007 and had known Hudson "for a number of years." Id. at 21--22. CW1 informed the FBI that Hudson had been selling crack cocaine for "some time," at least since 2007. Id. at 22. Although the cooperating witnesses have criminal records and one has been paid for some of "its" cooperation, the information they provided was corroborated "to the extent possible." Id. Moreover, the affidavit laid out these facts for the magistrate's consideration. Id. at 23.
Third, the affidavit stated that Hudson had two prior charges for possession with intent to distribute a controlled substance and that Savoy, the person with whom Hudson was talking, has two prior charges for possession with intent to distribute cocaine. Id. at 10--11. Although the information is not dispositive, a magistrate making a probable cause determination may consider a suspect's prior involvement in the same type of criminal activity being investigated.
Finally, and perhaps most importantly, Hudson's motion fails to mention an intercepted call between Savoy and Hudson on August 4, 2010. According to SA Ray, the two discussed meeting so that Savoy could provide Hudson with "'five,'" which Ray interpreted to mean five 31-gram packages of powder cocaine. Id. at 31--32. Savoy and Hudson then met in the parking lot of the House of Chang restaurant in Fort Washington, Maryland. Id. A subsequent traffic stop of Hudson by Prince George's County Police resulted in the seizure of five plastic bags each containing approximately 31 grams of powder cocaine from the center console of Hudson's car. Id.
Based on a totality of the circumstances, the magistrate's approval of a search warrant for Hudson's home was reasonable. The affidavit supporting the warrant application was based on a combination of factors, including information from two cooperating witnesses previously determined reliable by the FBI, interpretations of coded conversations by SA Ray, the prior narcotics involvement of both men, two unexplained meetings between Hudson and Savoy in parking lots, and the seizure of five bags of cocaine from Hudson shortly after he had discussed meeting with Savoy to get "five." These were sufficient to support a finding of probable cause that Hudson was engaged in narcotics trafficking with Savoy.
Furthermore, D.C. Circuit precedent supports the inference that evidence of narcotics trafficking would be found in Hudson's home, despite the fact that most evidence of it was derived from activity that may have taken place elsewhere. See United States v. Johnson, 437
F.3d 69, 71--72 (D.C. Cir. 2006); Spencer, 530 F.3d at 1007 ("Common experience suggests that drug dealers must mix and measure the merchandise, protect it from competitors, and conceal evidence of their trade . . . in secure locations. For the vast majority . . . the most convenient location to secure items is the home.").
Finally, even if probable cause were lacking, the agents relied upon the warrant in good faith. The Court rejects Hudson's assertion that the affidavit was "so lacking in probable cause" as to render reliance on it unreasonable. Furthermore, the Court is mindful that "'[w]hen officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish good faith without a substantial expenditure of judicial time.'" Spencer, 530 F.3d at 1007 (quoting Leon, 468 U.S. at 924).
For the foregoing reasons, Hudson's Motions [35, 63] to Suppress are DENIED.
ii.Savoy Motions to Suppress [37, 38]
Savoy moves to suppress the introduction of evidence seized during the November 10, 2010 search his residence at 3766 Stonesboro Road, Fort Washington, Maryland. Def. Savoy's Omnibus Mot. 3--4, ECF No. 37; Def. Savoy's Mot. Suppress Tangible Evid. 1, ECF No. 38. During the search, agents seized a variety of items including what was believed to be over one kilogram of cocaine, two digital scales, multiple firearms and ammunition, and over $35,000 in cash. Gov't Omnibus Resp. Defs.' Mots., Ex. 7, at 4--6, ECF No. 111-7.
Savoy argues that the affidavit in support of the search warrant contains "multiple representations in the nature of conjecture, inferences and conclusions . . . [and] does not set forth any facts or circumstances pertaining to any participation by Mr. Savoy in any specified . . . act of criminal conduct. " Savoy's Mot. 2 (emphasis omitted). Savoy argues that the affidavit "failed to provide the essential specifications of fact and circumstances that might have supported a finding of probable cause." Savoy's Mot. 3. Little other detail is provided regarding why probable cause might be lacking. Savoy requests an evidentiary hearing to "confirm the facts alleged above" and an order suppressing the use of the evidence by the government. Id.
Savoy concedes that the search conducted was of his residence and this is supported by the surveillance information outlined in SA Ray's affidavit. Savoy's Mot. 4; Gov't Omnibus Resp. Defs.' Mots., Ex. 8, at 48, ECF No. 111-8. Savoy thus has standing to challenge the search and seizure.
2.Probable Cause Existed to Search Savoy's Residence
The facts supporting probable cause as to Savoy overlap significantly with those supporting probable cause as to two other defendants and one unindicted suspect. The affidavit incorporates the details of these facts by reference to the sections dealing with the other defendants. Id. The affidavit refers to a number of calls, detailed above, in which Savoy told Hudson, he had gotten a new pair of shoes and was going to try them on. It also refers to the meeting between Savoy and Hudson in the House of Chang parking lot, after which Hudson was stopped with five, 31-gram baggies of cocaine. The affidavit also refers to calls and a meeting between Savoy and co-defendant Johnson. On July 27, 2010, Savoy received a call from Johnson in which Savoy stated he "made me a good move last night" and that he "got rid of, well, you know." Id. at 44. The next day, Johnson called Savoy and Savoy said "Hopefully somebody will hit me and clean me up today. . . . If they do, I will hit you and let you know." Id. at 45. Special Agent Ray believed that in this conversation, Savoy was telling Johnson that he had sold most of the cocaine he had and that he would be ready to buy more from Johnson when another buyer contacted him that day. Id. About two weeks later, during a call between Johnson and Savoy, Johnson said, "Yea, it's good" and asked "where you want to holler at me?" Savoy responded ". . . I guess the regular" and the two met shortly thereafter in a parking lot in Fort Washington, Maryland. Id. at 46. They spoke for approximately 10 minutes before each driving away. Id. at 46--47. Special Agent Ray believed that Johnson provided Savoy with a kilogram of cocaine at this meeting. Id. at 47. Johnson later called Savoy and Savoy said, "[It] should have been six five and one deuce" to which Johnson replied "Oh yeah, thirty-two right?" Id. Savoy said "The six fives was in two bands and the deuce was in one band down the middle." Id. Special Agent Ray interpreted this to refer to $32,000 or a price consistent with the retail price for a kilogram of powder cocaine in Washington, D.C. at the time. Id.
The affidavit also describes conversations and a meeting between Savoy and an unindicted suspect in which the unindicted suspect told Savoy he needed to see him and Savoy replied, "[Y]ou done already? . . . That joint was cool?" Id. at 50. The next day, the unindicted suspect and Savoy met in the parking lot at the House of Chang restaurant and the unindicted suspect walked toward Savoy holding what looked like a white envelope. Id. at 52. The two met briefly before each driving away. Id. SA Ray believed the unindicted suspect had sold all of his cocaine, needed a new supply from Savoy, and met Savoy to purchase it. Id. at 50.
In addition to the interpretations of these conversations and meetings, the affidavit outlined Savoy's previous criminal charges and at least one narcotics conviction. Id. at 10.
The totality of the circumstances supports the magistrate's finding that there was probable cause to search Savoy's home. Perhaps most telling is the meeting between Savoy and Hudson after which Hudson was pulled over and police found five, 31-gram baggies of cocaine. Additionally, the conversations between Savoy and Johnson and between Savoy and an unindicted suspect, while in ambiguous language, support SA Ray's inference that Savoy was purchasing drugs from Johnson and selling them to the unindicted suspect. This interpretation is further supported by meetings between the parties and the apparent exchange of a white envelope between the unindicted suspect and Savoy. Special Agent Ray's interpretations of these conversations, in light of his prior experience, is to be given credence. Finally, Savoy's prior narcotics involvement and the prior narcotics convictions of those with whom he was interacting likewise support the finding of probable cause.
3.Leon Good Faith Exception Applies
As with the Hudson warrant, even if the above were not sufficient to establish probable cause, it would be enough to support the agents' good faith reliance on the warrant under Leon. The warrant included significant information linking Savoy to the alleged drug conspiracy and officers were able to corroborate at least one alleged drug transaction through the traffic stop of and associated seizure of drugs from Hudson. There is nothing to suggest ...