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United States v. Cole

United States District Court, N.D. Indiana, Fort Wayne Division

October 20, 2016

UNITED STATES OF AMERICA
v.
MARLON COLE

          OPINION AND ORDER

          THERESA L. SPRINGMANN JUDGE

         After obtaining a search warrant, police entered Defendant Marlon Cole's apartment and found drugs and related paraphernalia, cash, and firearms. As a result, the Defendant was charged with drug trafficking and firearm offenses. The Defendant has moved to suppress the evidence on the ground that the affidavit submitted with the search warrant application did not establish probable cause to believe that evidence of a crime was located at the Defendant's apartment. He also asserts that evidence police recovered from a locked safe should be suppressed because the search warrant affidavit did not contain any information related to a safe. For the reasons set forth in this Opinion and Order, the Court is unpersuaded by the Defendant's arguments and denies his Motion to Suppress.

         PROCEDURAL BACKGROUND

         The Defendant is charged in a three-count Indictment with possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(a), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On September 16, 2016, the Defendant filed a Motion to Suppress [ECF No. 15]. In this Motion, the Defendant seeks the suppression of evidence obtained during the execution of a search warrant. The Motion challenges the Search Warrant Affidavit completed by Detective James R. Chambers of the Fort Wayne Police Department, arguing that it did not contain sufficient facts upon which the state court judge could have found probable cause to search the apartment for evidence of drug trafficking. The Defendant asserts that the search warrant was based, in part, on information from a confidential tipster whose reliability had not been confirmed. Although the Affidavit also recounts two controlled drug purchases, the Defendant asserts that they do not help because insufficient details are provided about the controlled purchases or the person who made them, and because the last controlled purchase occurred a month before the warrant was issued. The Defendant argues that the Affidavit failed to establish that the Defendant was residing in or otherwise associated with the apartment. Finally, the Defendant contends that the search warrant did not give officers permission to search a safe that they found inside the apartment because the Affidavit did not particularly mention a safe.

         ANALYSIS

         When an affidavit is the only evidence presented to a judge to support a search warrant, as it is here, the validity of the warrant rests solely on the strength of the affidavit.[1] United States v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009). A search warrant affidavit establishes probable cause when, based on the totality of circumstances, it “sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime.” United States v. Mykytiuk, 402 F.3d 773, 776 (7th Cir. 2005) (citing United States v. Peck, 317 F.3d 754, 755-56 (7th Cir. 2003), and Illinois v. Gates, 462 U.S. 213, 238 (1983)). “Probable cause denotes more than a mere suspicion, but does not require certainty.” United States v. Fleischli, 305 F.3d 643, 651 (7th Cir. 2002) (quotation marks and citations omitted). “The task of the issuing magistrate is simply to make a practical, commonsense 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.” United States v. Sims, 551 F.3d 640, 644 (7th Cir. 2008) (ellipsis and brackets omitted). “The judge, however, may not solely rely upon ‘conclusory allegations' or a ‘bare bones' affidavit when issuing a warrant.” Id. A reviewing court will “defer to the determination of the warrant-issuing judge that probable cause existed so long as ‘there is substantial evidence in the record supporting the judge's decision.'” United States v. Farmer, 543 F.3d 363, 377 (7th Cir. 2008) (quoting United States v. Koerth, 312 F.3d 862, 865 (7th Cir. 2002)).

         A. Insufficient Corroboration

         The Defendant asserts that the search warrant should not have issued because it was based, in part, on information from confidential tipsters whose reliability was not confirmed. Viewed in its totality, the Affidavit contains much more information than an informant's tip. It contains information that law enforcement obtained over the course of several weeks in April and May 2016 that led them to suspect that the Defendant was dealing heroin. First, a confidential informant directed Detective Chambers to the back of the Third Street apartment and a gold colored GMC Yukon registered to Racquel Mendez. He stated that a “large black male” drove the vehicle and sold several grams of heroin at a time to people using the Burger Dairy as a meeting location. Detective Chambers, while conducting his own surveillance observed a second vehicle, an older model black Chevrolet Suburban or Tahoe. This vehicle was also registered to Racquel Mendez. About one year earlier the vehicle had been pulled over with the Defendant, Marlon Cole, inside. A few days later, Detective Chambers interviewed a confidential tipster who stated he had purchased heroin from a large black male named Marlon who drove a silver Yukon or black Tahoe. Less than two weeks later, a caller used the Drug Tip Hotline to identify the Third Street address as a location where the caller believed meth was being dealt based on the traffic patterns and a man with no teeth frequenting the address. The tipster also stated that a silver GMC truck was always coming and going.

         The Affidavit then provided details of two controlled drug purchases by a confidential informant on June 10 and 23, 2016. These controlled buys corroborated the informant's statement that he could buy heroin from a black male he knew as Marlon, and that he could buy it from Marlon's residence on Third Street. See United States v. Rosario, 234 F.3d 347, 351 (7th Cir. 2000) (a tip from a confidential informant of unproven reliability may support a finding of probable cause as long as the affiant's investigation substantially corroborates the informant's credibility). “Controlled buys add great weight to an informant's tip.” United States v. McKinney, 143 F.3d 325, 329 (7th Cir. 1998) (noting that police did not simply rely on the tip of an untested informant, but “boosted” his reliability with controlled buys). These controlled purchases also corroborated the information provided by the sources.

         Contrary to the Defendant's argument, “how the confidential informant knew Marlon Cole or why he/she was able to purchase heroin from him” was not “vital information” that was needed to assess the credibility of the informant. (Def.'s Resp. 6, ECF No. 19.) The important fact was that he was able to purchase the heroin, just as he stated. The Court also disagrees with the Defendant's assessment that the Affidavit is deficient because it does not provide any details “regarding what if anything occurred” within the Third Street residence. (Def.'s Resp. 6.) During each purchase, the confidential informant went inside the Third Street apartment with $300 of buy money, stayed for just a few minutes, and left with heroin. Accordingly, what happened inside the apartment, for purposes of determining whether the Affidavit provided a fair probability that evidence of a crime would be found inside the apartment, was an exchange of money for drugs. These transactions were monitored and recorded by law enforcement.

         During the first transaction, a detective observed the confidential informant being freely let into the apartment upon knocking on the door. During the second sale, a detective observed the Defendant and the confidential informant enter the apartment together. The Defendant, driving the GMC Yukon, had just returned to the apartment from the Burger Dairy. Although the detectives could not see the transactions inside the apartment, this does not render the Affidavit account of what transpired unreliable. For each controlled buy, the Affidavit stated that the informant was checked for contraband before going to the apartment, given marked money, outfitted with an electronic monitoring device, and observed going inside his apartment for a short period of time with the money and then returning to the police with suspected heroin in his possession. This was more than was necessary to corroborate the confidential informant's statement. Cf. McKinney, 143 F.3d at 329 (noting that although police could have done more to boost the informant's reliability during controlled drug purchases by conducting a full search and fitting him with surveillance equipment, probable cause only requires a reasonable probability that evidence of a crime can be found at a certain location). Additionally, after the first controlled purchase, the informant identified Marlon Cole from a six-person photo array as the seller. This informant also informed Detective Chambers that the Defendant kept a handgun in the apartment, which the informant had seen.

         The Defendant contends that the Affidavit is “devoid of any detail about Marlon Cole and his association with” the Third Street address. (Def.'s Resp. 7, ECF No. 19.) The Defendant does not elaborate on this point, and the Court is left wondering what further connection the Defendant believes was necessary.

         B. Staleness

         The Defendant argues that the judge should have considered the information in the Affidavit unreliable because it was stale. He notes that the Affidavit was Dated: July 19, 2016, but the latest ...


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