UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 15-20336

DERAL DORSEY,

Defendant.

 /

ORDER DENYING DEFENDANT’S “MOTION TO SUPPRESS ILLEGALLY SEIZED

EVIDENCE AND STATEMENTS”

Defendant was charged with being a felon in possession of firearm in violation of

18 U.S.C. § 922(g)(1) after a search of his home on Westpoint Street in Taylor,

Michigan uncovered five guns and other illegal contraband. Before the court is

Defendant’s Motion to Suppress Illegally Seized Evidence And Statements, filed on

August 7, 2015. (Dkt. # 17.) On September 9, 2015, the Government responded. (Dkt. #

20.) For the reasons stated below, the court will deny Defendant’s motion.

I. BACKGROUND

On November 20, 2014, Detective Czopek, a Michigan State Police Downriver

Area Narcotics Organization (“DRANO”) officer, spoke to an informant who stated that

he could go to the residence on Westpoint Street and purchase heroin. (Dkt. # 17-2, Pg.

ID 61.) On that same day, Czopek met with the informant at a prearranged location,

searched his car for money, weapons, and contraband and issued him prerecorded

funds with which to make a controlled purchase. DRANO officers established and

maintained surveillance on the informant as he drove to the Westpoint residence,

entered the residence, left the residence after the purchase, and drove back to the

prearranged meeting location. The officers ensured that he made no stops on the way

to, or coming from, the house. (Id. at 61-62.) At the meeting location, the informant

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stated he had exchanged the prerecorded funds for heroin and identified Defendant

from photographs provided to him. The informant gave Czopek the substance he

purchased, which a field test confirmed was in fact heroin. Czopek and his DRANO

team repeated the same procedure on December 2, 2014. They searched the informant

before the controlled purchase, surveilled the informant while entering and leaving the

residence, and met with the informant afterward to confirm that he purchased heroin.

(Id.)

On December 4, 2014, Czopek prepared and swore to an affidavit before a

magistrate judge and obtained a warrant. (Dkt. # 21-1, Pg. ID 98.) That same day, at

four o’clock in the afternoon the search was executed. (Dkt. # 21-2, Pg. ID 100.)

Defendant Deral Dorsey was detained during the search at the front of the residence in

the driveway. Defendant was informed of his Miranda rights and thereafter made

various incriminating statements. (Id. at 101.) During the course of the search, the

search team seized five guns from the residence along with other items. (Id. at 21-2.) 

II. DISCUSSION

A. Probable Cause

The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

Probable cause exists “when there is a ‘fair probability’ . . . that contraband or evidence

of a crime will be found in a particular place.” United States v. Helton, 314 F.3d 812, 859

(6th Cir. 2003) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)).

“In other words, a magistrate need only find ‘reasonable grounds for belief’ that

evidence will be found in order to justify the issuance of a search warrant.” United

States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010) (quoting United States v. Bennett,

905 F.2d 931, 934 (6th Cir. 1990)). Affidavits upon which probable cause is founded

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“must provide the magistrate with a substantial basis for determining the existence of

probable cause.” Illinois v. Gates, 462 U.S. 213, 239 (1983). “Search warrant affidavits

are to be judged on the totality of the circumstances, not line-by-line scrutiny.” Thomas,

605 F.3d at 307 (citing Gates, 462 U.S. at 239).

Defendant lodges eight specific complaints pertaining to the sufficiency of the

affidavit, which all amount to the general complaint that the warrant was not supported

by probable cause. (Def.’s Mem. 5.) The specific complaints are as follows:

 (1) there’s no indication that the informant(s) is credible or reliable; (2) the

affiant does not state that there is reason to believe that the informant is

credible or reliable; (3) the affiant fails to aver that there is probable cause

to search the premises; (4) the averment that Mr. Dorsey was “registered”

to the address based upon a LEIN inquiry is contradicted by the LEIN

report which does not support this statement; (5) there’s no indication

drugs were seen or known to have been stored at the location; (6) there

was no representation Mr. Dorsey was a suspected or known drug

trafficker or that the location had been previously associated with drug

trafficking; (7) the police merely corroborated readily accessible public

information about Mr. Dorsey; and (8) merely observed the comings and

goings of an unknown informant who may have secreted drugs in the

location for his own nefarious purposes. 

(Id.) 

Defendant fails to recognize that an “affidavit is judged on the adequacy of what

it does contain, not on what it lacks, or on what a critic might say should have been

added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000). While it is true that

the Detective Czopek did not attest to prior experience with the confidential informant,

or aver that he was confident in the informant’s reliability because he had received

accurate information from him in the past, “information received from an informant

whose reliability is not established may be sufficient to create probable cause when

there is some independent corroboration by the police of the informant’s information.”

United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000). In this case, the independent

corroboration came in the form of two controlled purchases. The informant told

Detective Czopek that drugs were being sold at the Westpoint residence. To verify this

information, Czopek conducted two controlled purchases, each time searching the

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informant and his car for money, weapons, and contraband beforehand. (Dkt. # 21-1,

Pg. ID 95, 96.) Additionally, Czopek surveilled the informant while he drove to and

entered the residence, and continued to observe him as he left the residence and drove

back to the predetermined meeting place, ensuring that he did not make any stops

along the way.

It is true, as Defendant argues, that there is no per se rule establishing probable

cause where there has been a controlled purchase of narcotics. (Def.’s Mem. 7 (citing

United States v. Khounsavanh, 113 F.3d 279, 285 (1st Cir. 1997).) Indeed the Supreme

Court has continually rejected per se rules in the Fourth Amendment context, noting that

determining Fourth Amendment reasonableness requires a “finely tuned approach” and

that each scenario should be evaluated “on its own facts and circumstances.” E.g.,

Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013). But to say that there is no per se

rule does not establish that controlled purchases do not frequently establish probable

cause. To the contrary, the Sixth Circuit has often found that controlled purchases,

when executed properly, as in this case, do establish probable cause. See e.g., United

States v. Coffee, 434 F.3d 887, 894-95 (6th Cir. 2006); Unites States v. Pinson, 321

F.3d 558, 563 (6th Cir. 2003). Coffee is similar to the instant case because the affiant

did not expressly vouch for the credibility or reliability of the informant. The police did

however, like Czopek, conduct a controlled purchase and took measures to ensure that

the informant did not secret drugs into the location in order to frame the subject of the

investigation. While in Coffee the police listened to the single controlled purchase via a

monitoring device, Czopek, unlike the other cases, conducted two controlled purchases,

lessening the likelihood that the informant was attempting to dupe the police. Given the

totality of the circumstances, in particular the two monitored controlled purchases, the

court finds that the warrant was supported by probable cause. 

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In his motion, Defendant also argues that the affidavit is incorrect where it states,

“LEIN inquiry showed Deral Dewayne Dorsey [redacted] registered to [redacted] Taylor,

MI [redacted].” (Def.’s Mem. 5 (citing Dkt. # 17, Pg. ID 62).) Defendant claims that the

LEIN report contradicts this statement. Id. It does appear that the LEIN report attached

to Defendants motion is silent as to his address, and so that report does not support the

statement, though the court cannot go as far as to say it contradicts the affidavit. But

even if Defendant is right, this error would make no difference, as it is essentially

immaterial. That Defendant lives at, owns, frequents, or is “registered to” the address is

not essential to a finding of probable cause that drugs were present in the house. The

search warrant was issued to authorize a search of the house, and the warrant itself did

not name Deral Dorsey as a particular person to be searched. True, the warrant allowed

for the search of “all persons present, arriving, or departing” the residence during

execution of the search, but this is due to their presence at the house for which there

was probable cause to believe drugs were present. 

Even assuming, arguendo, that Defendant was not “registered to” the residence

and that the misrepresentation was intentionally false or made with reckless disregard

for the truth, a warrant is only voided and the fruits of the search suppressed if “setting

aside the affidavit’s false material . . . the remaining content of the affidavit is insufficient

to establish probable cause.” United States v. Ayen, 997 F.2d 1150 (6th Cir. 1993)

(citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). The court finds that the tip

from the informant corroborated by two controlled purchases and the additional

surveillance established probable cause independent of information about Defendant’s

connection to the house itself. While that sort of information might be relevant to the

ultimate question of Defendant’s guilt or innocence, an affiant does not need to

establish probable cause for the crime with which the defendant is ultimately charged.

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Thus, the potential discrepancy with respect to Defendant’s relationship to the house

does not affect the validity of the warrant. 

The court therefore finds that there was probable cause to believe that drugs

were present at the Westpoint residence.

B. Procedural Defects

In his motion, Defendant also argues that the warrant should be invalidated

because it (1) did not specify a time period within which to execute the search, (2) did

not state whether a nighttime search was authorized, (3) and did not order the police to

leave a copy of the warrant with the owner of the premises. (Def.’s Mot. 3.) First, the

court notes that the search was executed during daytime, at four o’clock in the

afternoon on the day the warrant was issued by the magistrate judge. (Dkt. # 21-2, Pg.

ID 100.) Also, the warrant did instruct the police to “[l]eave a copy of this warrant with

affidavit attached and a tabulation (a written inventory) of all property taken with the

person from whom the property was taken or at the premises.” (Id. at 98.) Thus,

Defendant’s contentions are either wrong or the defects did not affect Defendant in any

way.

Moreover, the Sixth Circuit has consistently held that “although the procedural

steps enumerated in Rule 41[]1 are important and should not be disregarded, they are

ministerial and ‘[a]bsent a showing of prejudice, irregularities in these procedures do not

void an otherwise valid search.” Frisby v. United States, 79 F.3d 29 (6th Cir. 1996)

(citing United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971)). As Defendant

was not prejudiced by the alleged procedural irregularities, the court will not invalidate

the warrant or suppress the fruits of the search.

1

Rule 41 has been substantially amended since the decisions in Frisby and

McKenzie such that the subdivisions in earlier versions of the Rule cited in those cases

no longer correspond to the current Rule 41. 

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B. Exclusionary Rule

Finally, even if the court were to accept Defendant’s argument that the warrant

was invalid, the court finds that the exclusionary rule would not suppress the evidence

obtained. The Fourth Amendment exclusionary rule does not apply where law

enforcement acted in good faith and reasonably relied on an invalid search warrant. The

issue is “whether a reasonably trained police officer would have known that the search

was illegal despite the [issuing judge’s] authorization.” United States v. Leon, 468 U.S.

897, 922 n.4 (1984). 

To help reviewing courts properly answer this question, the Court identified four

specific situations in which an officer’s reliance on a subsequently invalidated

warrant cannot be considered objectively reasonable: 1) when the warrant is

issued on the basis of an affidavit that the affiant knows (or is reckless in not

knowing) contains false information; 2) when the issuing magistrate abandons his

neutral and detached role and serves as a rubber stamp for police activities; 3)

when the affidavit is so lacking in indicia of probable cause that a belief in its

existence is objectively unreasonable; and 4) when the warrant is so facially

deficient that it cannot be reasonably presumed to be valid.

Thomas, 605 F.3d at 311. 

To begin with, it is not at all clear that Czopek’s contention in the affidavit that

Defendant was “registered to” the residence was actually false. From the information

provided, the court can determine only that the LEIN report produced to Defendant does

not support that statement. Additionally, Defendant withdrew his request for a Franks

hearing, (Dkt. # 19), and thus no evidence has been presented to convince the court of

the statement’s falsity or that Czopek knew (or was reckless in not knowing) it was

false. Furthermore, the affidavit is based on much more than just the one alleged

misrepresentation. Thus, the Leon exception would apply because of the other portions

of the affidavit that independently establish probable cause. These other indicia of

probable cause make any officer’s reliance on the warrant and affidavit objectively

reasonable. And finally, Defendant submits no evidence suggesting the judicial officer

acted as a rubber stamp, as required. See Thomas, 605 F.3d at 311. Accordingly, the

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officers here acted in good faith, and the exclusionary rule would not apply even if the

search warrant was not supported by probable cause.

IV. CONCLUSION

For the reasons stated above, IT IS ORDERED that Defendant’s Motion to

Suppress Evidence and Statements (Dkt. # 17) is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 29, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, October 29, 2015, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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