UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 15-cr-20442

Hon. Gerald E. Rosen

vs.

DAVON KEMP (D-1) and

TRAVOUGHN DANIELS (D-3),

Defendants.

_______________________________/

OPINION AND ORDER REGARDING

DEFENDANTS’ MOTIONS TO SUPPRESS EVIDENCE

At a session of said Court, held in

 the U.S. Courthouse, Detroit, Michigan

on May 31, 2016

PRESENT: Honorable Gerald E. Rosen

 United States District Judge

INTRODUCTION

On July 16, 2015, the Grand Jury returned a six-count indictment against

Defendants Davon Kemp and Travoughn Daniels and three other co-defendants, Myron

Duncan-Plunkett, Raynaldo Galindo and Keven Samaniego. All five Defendants are

charged with Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine

(Count I), and Attempted Possession with Intent to Distribute Cocaine, Aiding and

Abetting (Count II). Defendants Kemp and Daniels are also charged with Possession

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with Intent to Distribute Controlled Substances, Aiding and Abetting (Count III) and

Possession of Firearms in Furtherance of a Drug Trafficking Offense (Counts IV and

V).

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 Additionally, Daniels is charged with Felon-in- Possession of a Firearm (Count VI). 

All of these charges arise out of a controlled delivery of 5 kilos of cocaine and the sameday seizure of additional drugs, cash, drug evidence and firearms from Defendant

Daniels’ apartment on W. Grand Blvd. in Detroit on June 27, 2015. Daniels and Kemp,

through counsel, now move to suppress the evidence seized from Daniels’ residence.

On May 17, 2016, the Court conducted an evidentiary hearing on the matter, at

which it heard the testimony of DEA Detroit Group 6 Task Force Officer Shawn Reed.

At the conclusion of the hearing, the Court took the matter under advisement.

Having now had the opportunity to review and consider the parties’ briefs, the

arguments of counsel, the testimony and the evidence submitted at the hearing held on

May 17, 2016, and the Court’s entire record of this matter, the Court is now prepared to

rule on Defendant’s Motion. This Opinion and Order sets forth the Court’s ruling.

PERTINENT FACTS

On June 25, 2015 Agents of the DEA Detroit Group 6 Task Force were notified

by Texas State Troopers of their interception of a 1999 Chevrolet Silverado that was

destined for delivery to Detroit, Michigan. The Texas State Troopers intercepted the

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 Kemp and Daniels are both charged in Count IV; Daniels is charged alone in

Count V.

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Chevy Silverado while conducting a Federal Department of Transportation inspection on

I-40 in Oldham County, Texas. During this inspection the Texas State Troopers

discovered 5 kilograms of cocaine hidden in a spare tire stored beneath the undercarriage

of the Silverado. The troopers learned in their investigation that the Silverado had been

retrieved in Arizona where the transporters met an unknown Hispanic male going by the

alias of “Mike Jones.” The transporters had been directed to haul the Chevy Silverado to

8920 W. 8 Mile Road in Ferndale, Michigan (on the border of Detroit) where Jones or

another person was to take control of the vehicle.

A controlled delivery of the Chevy Silverado was thereafter arranged.

On June 27, 2015, DEA Task Force Officer Shawn Reed took possession of the 5

kilos of cocaine, and he and other members of the DEA Group 6 Task Force replaced the

cocaine that was found in the spare tire of the Chevy Silverado with 5 replica kilograms

of a sham substance containing a detectable amount of cocaine. A warrant was also

obtained for GPS tracking of the Silverado and GPS device was placed on the truck.

At approximately 1:15 p.m. on June 27th, the car hauler, monitored by members

of DEA Group 6, arrived at the Kroger parking lot at 8920 W. 8 Mile Road. The driver

of the car hauler was immediately met by Defendant Raynaldo Galindo. Galindo paid

the driver and took possession of the Chevy Silverado. Galindo was observed placing an

Arizona license plate on the rear of the vehicle.

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Members of the DEA Group 6 surveillance team then observed a black 2009 Saab

SUV, occupied by Defendants Myron Duncan-Plunkett and Davon Kemp. The Saab

drove in tandem with the Chevy Silverado toward southwest Detroit.

Near the Michigan Avenue exit from I-96, the surveillance team observed a black

Nissan Pathfinder, driven by Defendant Daniels, following the Silverado and the Saab. 

The three cars pulled into a Valero gas station at the corner of Vernor and West Grand

Blvd. Galindo still driving the Silverado, picked up Defendant Kevin Samaniego at the

gas station. Members of the surveillance team then observed the Silverado and the

Nissan drive to the rear of a secured parking lot of a loft apartment building at 727 W.

Grand Blvd. The Saab drove around the perimeter of the location during this time.

In the parking lot, Defendants Daniels, Samaniego and Galindo attempted to

remove the spare tire which now contained the imitation cocaine. The Detroit DEA

agents then made themselves known and Daniels, Samaniego and Galindo were placed

under arrest.

When he was arrested, Defendant Daniels produced a Michigan State

Identification card which listed 727 W. Grand Blvd., Apt. 312 as his address. The DEA

agents also discovered that Daniels had a .25 caliber handgun in his pocket. 

Meanwhile, a traffic stop was conducted on the Saab which was occupied by

Defendants Kemp and Duncan-Plunkett. Both occupants were taken into custody, as

well. 

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Because it had rained heavily that day, there were large puddles of standing water

on the gravel surface of the parking lot. As a consequence of being placed on the ground

at the time of his arrest, Daniels’ clothing was wet and muddied. Therefore, before being

taken in for booking, the agents on the scene asked Daniels if he would like to change his

pants and Daniels said he would like that opportunity. According to the Government,

Daniels informed the officers of his apartment number (Apt. 312), identified the key on

his key chain which would allow the officers to gain entry into his apartment to retrieve

dry pants for him, and told the agents where to look in the apartment for his clothes.

The agents first did a protective sweep of the apartment. They did not locate any

other occupants. However, they observed an SKS assault rifle in plain view in an open

closet immediately adjacent to the entry. (The weapon remained untouched until a search

warrant was obtained.) After their security sweep, the agents retrieved a pair of pants for

Defendant and locked the residence with Defendant’s key.

Task Force officers were subsequently posted outside the building to make sure

no one else entered the apartment. Other officers on the scene then transported the

Defendants to the station for booking.

Meanwhile, Task Force Officer Shawn Reed, who was not, at the time, on site

with the agents who arrested Defendants Daniels, Galindo and Samaniego, prepared an

affidavit for a search warrant for a search of 727 W. Grand Blvd., Apt. 312 -- the address

listed as Defendant Daniels’ residence on his State Identification Card.

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Shawn Reed has been a police officer with the Detroit Police Department for 16

and 1/2 years. Since 2003, Reed has been assigned to the narcotics section, and for the

last eight years, he has been a member of the DEA Detroit Task Force. He testified that

he has been an affiant approximately 1,000 times for both federal and state search

warrants.

Reed testified that he was not part of the team that surveilled the Defendants while

they drove in tandem the approximately 11 miles from the Kroger parking lot in Ferndale

to the parking lot at 727 W. Grand Blvd. Rather, he was on patrol in full uniform in a

marked police squad car, where he remained in radio contact with the surveillance detail,

on stand by to assist. He eventually effectuated the traffic stop of Defendants Kemp and

Duncan-Plunkett who were driving in the black Saab, while the arrest of the other three

defendants was taking place in the parking lot of the W. Grand Blvd. building. After he

took Kemp and Duncan-Plunkett into custody, Reed proceeded to draft the affidavit for

the search warrant.

Reed testified that while he was preparing the warrant affidavit he was in radio

and cell phone contact with the other Task Force officers and some of the information he

included in the warrant affidavit was information conveyed to him by the other officers.

When questioned as to why he did not mention in his affidavit that a GPS tracking

device had been placed on the Chevy Silverado, Reed said that he did not believe that the

GPS was relevant to the search warrant. He stated that the GPS had only been put on the

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truck so it could be located in case someone attempted to drive away with it. He added

that, although someone from the Task Force was monitoring the GPS tracking, he did not

believe the monitoring was used since the surveillance team had direct eyes on the

vehicles at all times, except for the brief time when the truck was driven to the rear of the

W. Grand Blvd. apartment building.

Reed also testified that there was no information included in the affidavit

pertaining to the initial consensual entry by Task Force officers into Apt. 312 to obtain

dry pants for Defendant Daniels, or the security sweep of the apartment done at that time. 

Reed explained that he was not present at the time of this initial entry into the apartment;

he was in the process of taking Defendants Kemp and Duncan-Plunkett to the holding

cell at that time, and then was occupied with typing up his affidavit. Although Reed

stated that he was eventually told about the agents’ initial entry into the apartment to

obtain dry pants for Defendant Daniels, he testified that he was not told about it until he

had either already finished preparing his affidavit or was almost done with it. Though he

conceded that adding the information would not have been difficult since he was writing

the affidavit on a computer, because he felt the facts he had already laid out in his

affidavit were sufficient to obtain the search warrant, he did not want to delay getting the

investigation done by having to take the time to add this information.

Reed was also questioned about the inconsistent identification as to which

defendant took possession of and drove the Chevy Silverado from Ferndale to the W.

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Grand Blvd. apartment. In his warrant affidavit, Reed stated that it was Defendant

Samaniego who took possession of and drove the Silverado, but in the affidavit he

submitted two days later in support of the federal criminal complaint, Reed stated that the

driver was Defendant Galindo. Reed testified that his identifying of Samaniego in his

warrant affidavit was a mistake made in haste; that it was Galindo who took possession

of the truck. He explained that he was not familiar with the names of the defendants at

the time and that he had simply inverted the two defendants’ names throughout the

affidavit.

Reed stated that after he finished drafting his affidavit and an assistant prosecuting

attorney approved it, Reed personally presented the affidavit and proposed search

warrant to the magistrate.

The magistrate first was called to inform her that the Task Force needed to obtain

a search warrant and the magistrate directed that Reed should meet her at her mother’s

house in Dearborn Heights where she was having dinner. Reed met the magistrate in the

living room of her mother’s house around 5:30 p.m. He swore to what was stated in his

affidavit, and the magistrate judge signed the warrant. Reed testified that the entire

process took no more than ten minutes.

Reed further testified that he did not provide any information to the magistrate

that was not included in his affidavit. He further stated that the magistrate did not ask

any questions and made only one modification to his warrant application: she had Reed

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write in the address of the location to be searched , “727 W. Grand Blvd., Apt. # 312,

Detroit, MI,” on page 3 of the document, because she wanted to make sure that the

address appeared on each page, in case the pages got separated when the affidavit and

warrant were filed with the court. Both Reed and the magistrate initialed this addition. 

Later that night, Task Force officers returned to Daniels’ residence and conducted

a search.

During the execution of the search warrant, the agents recovered approximately 50

grams of cocaine, 114 grams of heroin, packaging materials and a machine to heat seal

plastic bags, the SKS assault rifle, over $35,000 in cash, narcotic ledgers, United States

passports for Defendants Kemp and Duncan-Plunkett, airline tickets in Kemp’s name for

a recent flight to Belize, a lease agreement for the apartment in Duncan-Plunkett’s name,

Kemp’s Macintosh computer, and handwritten notes containing instructions on how to

transport narcotics across country without being detected by law enforcement, how to

avoid detection from K-9 drug sniffs, and how to set up and operate a drug house.

Based on the controlled delivery of the Chevy Silverado, the surveillance of

Defendants’ activities on June 27, 2015, and what was discovered during the execution

of the search warrant, on June 29, 2015, a federal Criminal Complaint was sworn out

against Defendants Daniels, Kemp, Duncan-Plunkett, Galindo and Samaniego. Then, on

July 16, 2015, the Grand Jury returned its indictment.

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DEFENDANTS MOTIONS TO SUPPRESS

Defendants Daniels and Kemp now move to suppress the evidence seized during

the search of Daniels’ residence.

Daniels’ first argument for suppression is based on the agents’ pre-warrant entry

into his apartment to get dry pants for him. Defendant claims that he did not consent to

the agents’ initial entry into his apartment. The Government counters that Defendant’s

motion regarding a non-consensual warrantless entry and search when the agents entered

the apartment to get Defendant a change of clothes should be denied as moot because

evidence from Daniels’ apartment was seized under a valid search warrant, and,

therefore, even if there had been an unlawful initial entry (before the search warrant was

issued), the “independent source rule” applies and suppression of the evidence is not

required.

The “independent source rule” permits the introduction of evidence initially

discovered during, or as a consequence of, an unlawful search, but later obtained

independently from lawful activities untainted by the initial illegality. See Murray v.

United States, 487 U.S. 533,108 S.Ct. 2529 (1988).

Murray, like this case, was a drug conspiracy case. In that case, federal law

enforcement agents, acting on information received from informants, had Murray and

several of his co-conspirators under surveillance. While under surveillance, the agents

observed Murray drive a truck and one of his co-defendants, James Carter, drive a

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camper into a warehouse in South Boston. When the two defendants drove out of the

warehouse 20 minutes later, the surveilling agents saw within the warehouse two

individuals and a tractor-trailer rig bearing a long dark container. Murray and Carter

later turned the truck and camper over to other drivers, who were, in turn, followed and

ultimately arrested and the vehicles lawfully seized. Both vehicles were found to contain

marijuana.

After receiving this information, several other federal agents converged on the

South Boston warehouse and forced entry. They found the warehouse unoccupied, but

observed in plain view numerous burlap-wrapped bales that were later found to contain

marijuana. The agents left without disturbing the bales, kept the warehouse under

surveillance, and did not reenter it until they had a search warrant.

In applying for the search warrant, the agents did not mention the prior entry into

the warehouse, and did not rely on any observations made during that entry. When the

search warrant was issued -- some eight hours after the initial entry -- the agents

immediately re-entered the warehouse and seized 270 bales of marijuana and notebooks

listing customers for whom the bales were destined.

Murray and Carter moved to suppress the evidence found in the warehouse. The

district court denied the motion and the First Circuit Court of Appeals affirmed. Taking

the opportunity to clarify the contours of the independent source doctrine, the Supreme

Court subsequently granted certiorari and held:

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The independent source doctrine ... rest[s] ... upon the policy that, while the

government should not profit from its illegal activity, neither should it be

placed in a worse position than it would otherwise have occupied. So long

as a later, lawful seizure is genuinely independent of an earlier, tainted one

... there is no reason why the independent source doctrine should not apply.

The ultimate question, therefore, is whether the search pursuant to

warrant was in fact a genuinely independent source of the information and

tangible evidence at issue here. This would not have been the case if the

agents’ decision to seek the warrant was prompted by what they had seen

during the initial entry, or if information obtained during that entry was

presented to the Magistrate and affected his decision to issue the warrant.

***

The District Court found that the agents did not reveal their warrantless

entry to the Magistrate ... and that they did not include in their application

for a warrant any recitation of their observations in the warehouse. . . . It

did not, however, explicitly find that the agents would have sought a

warrant if they had not earlier entered the warehouse. To be sure, the

District Court did determine that the purpose of the warrantless entry was

in part “to guard against the destruction of possibly critical evidence,”...

and one could perhaps infer from this that the agents who made the entry

already planned to obtain that “critical evidence” through a warrantauthorized search. That inference is not, however, clear enough to justify

the conclusion that the District Court’s findings amounted to a

determination of independent source.

Accordingly, we vacate the judgment and remand these cases to the

Court of Appeals with instructions that it remand to the District Court for

determination whether the warrant-authorized search of the warehouse was

an independent source of the challenged evidence in the sense we have

described.

487 U.S. at 542-44, 108 S.Ct. at 2535-36 (internal citations omitted; emphasis added).

As indicated, “[a]ccording to Murray, a subsequent search pursuant to a warrant

would not be an independent source of evidence unearthed by a previous search if the

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information obtained during the first search was ‘presented to the Magistrate and affected

his decision to issue the warrant.’” United States v. Jenkins, 396 F.3d 751, 757 (6th

Cir.), cert. denied, 546 U.S. 813 (2005). However, the Sixth Circuit -- and all courts of

appeals to have considered the matter -- have interpreted Murray to mean that in these

situations, for evidence to be inadmissible, the tainted information presented to the

magistrate judge “must affect the judge’s decision [on the search warrant application] in

a substantive meaningful way.” Id. at 758 (citing United States v. Herrold, 962 F.2d

1131, 1141 (3d Cir. 1992) (emphasis in original).

Under this interpretation of Murray, the simple fact that an application for

a warrant contains information obtained from an illegal search does not by

itself signify that the independent source doctrine does not apply. If the

application for a warrant “contains probable cause apart from the improper

information, then the warrant is lawful and the independent source doctrine

applies, providing that the officers were not prompted to obtain the warrant

by what they observed during the initial entry.

Id. at 1141-42. See also United States v. Markling, 7 F.3d 1309, 1315-16 (7th Cir. 1993)

(considering whether probable cause remained after purging tainted information from a

warrant and noting that “[t]his is the approach federal courts ... typically take” in

applying Murray); United States v. Restrepo, 966 F.2d 964, 968-70 (5th Cir. 1992), cert.

denied, 506 U.S. 1049 (1993) (interpreting Murray to mean that “evidence obtained in an

illegal search is first excised from the warrant affidavit, after which the expurgated

version is evaluated for probable cause”); United States v. Halliman, 923 F.2d 873, 880-

81 (D.C. Cir. 1991) (finding that despite the inclusion of tainted information in a warrant

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application, “there [were] overwhelming independent grounds for probable cause” in the

application); United States v. Gillenwaters, 890 F.2d 679, 681-82 (4th Cir. 1989) (setting

aside facts illegally obtained from the rest of the information in an affidavit and then

examining the affidavit for probable cause); United States v. Veillette, 778 F.2d 899,

903-04 (1st Cir. 1985), cert. denied, 476 U.S. 1115 (1986) (same).

In this case, the Government states in its brief that “the agents’ decision to seek

the warrant was not prompted by what had been seen during the initial entry -- and the

plain view observation of the assault rifle wasn’t included as a basis for the probable

cause in the search warrant affidavit [and] was not relied upon by the judge that

authorized the warrant.”

A review of the warrant bears out the Government’s assertion that the agents’

plain view observation of the assault rifle was not included as a basis for probable cause

in the warrant affidavit. Further, Shawn Reed, the Task Force Officer who prepared the

warrant affidavit and presented the affidavit and warrant to the magistrate, testified that

he did not provide any information to the magistrate that was not in the affidavit. Officer

Reed further testified that the decision to obtain a search warrant was made well before

other Task Force agents entered Daniels’ apartment to get Defendant Daniels dry pants. 

Reed was not present when the other officers made this initial entry; he was charged with

taking Defendants Kemp and Duncan-Plunkett to the holding cell and then was occupied

with typing up his warrant affidavit. He testified he was not even told about the entry

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until either after he was finished typing up his affidavit or almost done with it.

The Court credits Officer Reed’s testimony, and based on his testimony, the Court

concludes that the warrant-authorized search of the warehouse was an independent

source of the evidence challenged by Defendants.2

Of course, in order for the independent source rule to apply a valid search warrant

is needed. Both Defendants Kemp and Daniels challenge the validity of the search

warrant. They argue that the affidavit in support of the warrant request was a “bare

bones” affidavit and provided insufficient cause to believe that evidence of criminal

activity would be found at Daniels’ residence. Specifically, they contend that the

affidavit contains an insufficient “nexus” between the alleged criminal activity and the

location to be searched. 

An affidavit is bare bones when it “contains only ‘suspicions, beliefs, or

2

 Though not argued by the Government, the Court also finds that the “inevitable

discovery” doctrine would render the challenged evidence admissible, as well. The

inevitable discovery rule is “an extrapolation of the independent source doctrine.” 

Murray, 487 U.S. at 539. The inevitable discovery doctrine allows unlawfully obtained

evidence to be admitted at trial if the government can prove by a preponderance that the

evidence inevitably would have been acquired through lawful means. Nix v. Williams,

467 U.S. 431, 444, 104 S.Ct. 2501, 2509 (1984); United States v. Keszthelyi, 308 F.3d

557, 574 (6th Cir. 2002) (“[T]he inevitable discovery exception to the exclusionary rule

applies when ... evidence discovered during an illegal search would have been

discovered during a later legal search and the second search inevitably would have

occurred in the absence of the first.”). “‘The exception requires the district court to

determine, viewing affairs as they existed at the instant before the unlawful search, what

would have happened had the unlawful search never occurred.’” United States v.

Kennedy, 61 F.3d 494, 498 (6th Cir. 1995) (quoting United States v. Eng, 971 F.2d 854,

861 (2d Cir.1992), cert. denied, 510 U.S. 1045 (1994)).

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conclusions, without providing some underlying factual circumstances regarding

veracity, reliability, and basis of knowledge.’” United States v. Laughton, 409 F.3d 744,

748 (6th Cir. 2004) (citing United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996)). 

A magistrate’s issuance of a search warrant based on a “bare bones” affidavit constitutes

an arbitrary exercise of discretion and does not meet the requirements of the Fourth

Amendment. United States v. West, 520 F.3d 604, 610 (6th Cir. 2008); Weaver, 99 F.3d

at 1377-78.

A search warrant comports with the Fourth Amendment if it was issued by a

“magistrate [who] had a ‘substantial basis for ... conclud[ing]’ that a search would

uncover evidence of wrongdoing. . . .” United States v. McPherson, 469 F.3d 518, 523-

24 (6th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76

L.Ed.2d 527 (1983). Such a conclusion depends on the totality of the circumstances and

should not be set aside unless arbitrarily drawn because, as noted by the Sixth Circuit in

McPherson, “great deference” should be accorded to the determination of probable cause

made by a state magistrate. Id. (citing United States v. Weaver, 99 F.3d 1372, 1376 (6th

Cir. 1996). However, the Court must “insist that the magistrate perform his ‘neutral and

detached’ function and not serve merely as a rubber stamp for the police.” Aguilar v.

Texas, 378 U.S. 108, 111 (1964), overruled on other grounds, Gates, 462 U.S. at 238.

567.

“For the magistrate to be able to properly perform this official function, the

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affidavit presented [in support of the search warrant] must contain adequate supporting

facts about the underlying circumstances to show that probable cause exists for the

issuance of the warrant.” McPherson, 469 F.3d at 524;Weaver, 99 F.3d at 1376. The

affidavit must contain particularized facts demonstrating “a fair probability that evidence

of a crime will be located on the premises of the proposed search.” McPherson, 469 F.3d

at 524 (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). This requires

“a nexus between the place to be searched and the evidence sought.” United States v.

Carpenter, 360 F.3d 591, 594 (6th Cir.) (en banc), cert. denied, 543 U.S. 851 (2004)

(internal quotation 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 crime.” McPherson at 524 (citing Zurcher v. Stanford Daily, 436

U.S. 547, 556 (1978). However, the Sixth Circuit has emphasized that “line-by-line

scrutiny [of an underlying affidavit is] ... inappropriate in reviewing [a] magistrate[’s]

decisions.” United States v. Allen, 211 F.3d 970, 973 (6th Cir.) (en banc), cert. denied

531 U.S. 907 (2000) (quoting Gates, 462 U.S. at 246 n. 14, 103 S.Ct. 2317). Such “a

hypertechnical critique of warrants would only, in the end, encourage warrantless

searches, undermining the very Fourth Amendment right such an approach would seek to

protect.” Id.

Turning to the case at hand, despite Defendants Kemp and Daniels’s contentions,

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under the totality of the circumstances presented in the affidavit in question, there was

sufficient basis for the magistrate to conclude that there was a fair probability that

evidence of narcotics trafficking or fruits of illegal activity would be found at 727 W.

Grand Blvd., Apt. 312. 

In his affidavit, Officer Shawn Reed, the warrant applicant, attested to his then 15-

year experience as a police officer and his specialized experience in narcotics interdiction

with the DEA Group Six unit. [Warrant Affidavit ¶ 1]. Officer Reed further related with

particularity the interception of the Chevy Silverado in Texas and the 5 kilos of cocaine

found concealed in a spare tire on the truck, the arrangement of the controlled delivery of

the sham cocaine, the surveillance of the delivery and the subsequent transport of the

truck with the contraband by two of Kemp and Daniels’ co-defendants, Defendants

Samaniego and Galindo, from Ferndale, while being accompanied by two other vehicles

following in tandem, one being a black Saab (later found to be occupied by Defendants

Kemp and Duncan-Plunkett) and the other the black Nissan driven by Defendant

Daniels. [Warrant Affidavit ¶¶ 2-3].

The affidavit further states that surveillance was maintained over these three

vehicles while they proceeded from Ferndale to 727 W. Grand Blvd. in Detroit,3 where

the Silverado (driven by Galindo) and the Nissan driven by Defendant Daniels parked

3

 The Court takes notice that, according to Google maps, the Defendants drove in

tandem a distance of approximately 11.5 miles.

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behind the loft apartment building. Id. The affidavit further states that members of the

Group 6 Task Force observed Defendants Daniels, Galindo and Samaniego remove the

spare tire containing the sham cocaine and they were thereafter detained by the agents. 

When he was apprehended, Defendant Daniels, who was found in possession of a

firearm, produced a Michigan identification card with the address 727 W. Grand Blvd.,

Apt. 312. Id. Paragraph 3 of the warrant affidavit concludes, “This is the same location

the kilograms were transported to. . . .” [Warrant Affidavit ¶ 3].

In the final paragraph of the Affidavit, Officer Reed stated that the behavior of the

defendants described in the Affidavit is “consistent [with] a drug trafficking

organization.” [Warrant Affidavit ¶ 4] He further stated that, based on prior

investigations, drug traffickers keep records and names, addresses, phone numbers and

email addresses, or other identifying information of their criminal associates in their

residences, and that in executing prior search warrants after observing the same types of

activities observed in this case, he has recovered narcotics, narcotics paraphernalia,

narcotics proceeds and firearms. Id.

Officer Reed’s Affidavit is hardly “bare bones.” As is evident, it contained far

more than mere “suspicions, beliefs, or conclusions, without providing some underlying

factual circumstances regarding veracity, reliability, and basis of knowledge.” Laughton,

409 F.3d at 748. 

Even if the Court were to find that the Magistrate Judge erred in issuing the search

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warrant, the “good faith” exception established in United States v. Leon, 468 U.S. 891

(1984), would apply. Leon stands for the proposition that “the exclusionary rule ‘should

be modified so as not to bar the admission of evidence seized in reasonable, good-faith

reliance on a search warrant that is subsequently held to be defective.’” Weaver, 99 F.3d

at 1380 (quoting Leon, 468 U.S. at 905). There are only four exceptions to Leon’s

applicability:

(1) if the issuing magistrate was misled by information in an affidavit that

the affiant knew was false or would have known was false except for his

reckless disregard for the truth; (2), if the issuing magistrate wholly

abandoned his judicial role; (3) if the affidavit was so lacking in indicia of

probable cause as to render official belief in its existence entirely

unreasonable, or in other words, where the warrant application was

supported by nothing more than a “bare bones” affidavit; and (4) if the

warrant was facially deficient -- i.e., failing to particularize the place to be

searched or the things to be seized.

Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998), cert. denied, 526 U.S. 1077 (1999)

(enumeration added; citations omitted). 

Defendants do not contend that the magistrate abandoned her role as a neutral

arbiter in issuing the warrant, nor do they argue that the warrant failed to particularize the

place to be searched or things to be seized. Thus, the Court need only determine whether

the affidavit “was so lacking in indicia of probable cause as to render official belief in its

existence unreasonable.”

The standard by which an affidavit is to be judged for purposes of the “good

faith” exception “‘is a less demanding showing than the “substantial basis” threshold

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required to prove the existence of probable cause in the first place.’” United States v.

Carpenter, 360 F.3d at 595.

There have been a number of cases in the Sixth Circuit which involved questions

about the nexus between criminal activity and places, where the appellate court found

that probable cause did not exist but that the Leon good faith exception should apply. 

See e.g., United States v. Washington, 380 F.3d 236, 242 (6th Cir. 2004); United States

v. Carpenter, 360 F.3d at 595; United States v. Van Shutters, 163 F.3d at 336-38; United

States v. Schultz, 14 F.3d 1093, 1097-98 (6th Cir. 1994). In all of these cases, the

appellate court was satisfied that the good faith exception should apply to render the

searches therein valid. In these cases, the court specifically found the nexus requirement

satisfied because in each case there was “some modicum of evidence, however slight, to

connect the criminal activity described in the affidavit to the place to be searched.” 

United States v. Laughton, 409 F.3d at 749. Here, that standard is easily met.

The Silverado with the concealed kilos of pseudo-narcotics was delivered to 727

W. Grand Blvd. Defendant Daniels was among the three co-defendants caught in the act

of removing the spare tire containing the concealed sham drugs from the truck in the

parking lot behind the building bearing the address “727 W. Grand Blvd.” Daniels had

followed the Silverado and drove in tandem with the truck during the course of the 11.5

mile trip from Ferndale where the truck was delivered to Galindo to its end destination at

727 W. Grand Blvd. When he was apprehended in the lot behind 727 W. Grand Blvd.,

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Defendant Daniels produced a state ID card which showed his address as 727 W. Grand

Blvd., Apt. 312. Officer Reed stated in the affidavit that he had 15 years experience as a

police officer doing narcotics interdiction. He further stated that based on his experience

and training -- including his experience executing narcotics search warrants -- that there

was a fair probability that evidence of narcotics trafficking, including narcotics, records

pertaining transactions and the proceeds thereof, and firearms would be found in a

narcotics trafficker’s residence. Based on a totality of circumstances, the warrant

affidavit was not “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Therefore, the third exception to Leon’s applicability

does not apply here.

Defendants also argue that Leon does not apply because the issuing magistrate

was misled by information in the affidavit that the affiant knew was false or would have

known was false except for his reckless disregard for the truth. Defendants point to the

final statement in paragraph 3 of the Affidavit which states, with respect to 727 W.

Grand Blvd. Apt. 312, that “this is the same location the kilograms were transported to

by SAMANIEGO.” Specifically, Defendants challenge the inclusion of “Apt. 312” as

having misled the magistrate in the issuance of the warrant to search that apartment.

However, as indicated, the Court must read the affidavit in its totality and not

engage in a line-by-line, word-by-word hypertechnical analysis. While it is true that

nothing else in the Affidavit other than this one sentence specifically states that the

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delivery was to be to Apt. 312, it is unlikely that it was this one sentence that led the

magistrate to issue the warrant to search Apt. 312. Indeed, reading the affidavit in its

totality, it was not unreasonable for Officer Reed to have construed the drugs as having

been at least “constructively” delivered to 727 W. Grand Blvd., Apt. 312 as that is the

apartment belonging to Defendant Daniels and, as stated in the affidavit, Defendant

Daniels was apprehended in the parking lot behind the apartment building while

attempting to remove the drugs from their hiding place in the spare tire (after having

escorted the truck carrying the concealed drugs to that location), and Defendant Daniels

produced a state ID that listed 707 W. Grand Blvd., Apt. 312 as his address.4

Defendants also argue that in addition the above allegedly misleading information,

Officer Reed also omitted “critical facts” from his Affidavit, to-wit (1) that a GPS tracker

had been placed on the Silverado and that was being monitored by the officers; (2) that

officers allegedly obtained consent from Defendant Daniels to enter Apt. 312; (3) that

4

 As for the mistaken identification of Defendant Samaniego as the driver of the

Silverado who transported the drugs to the parking lot of 707 W. Grand Blvd., Officer

Reed testified at the May 17 hearing that the affidavit he submitted in support of the

criminal complaint two days after the search, on June 29, 2015, correctly identified

Defendant Galindo as the individual who accepted delivery of the Silverado in Ferndale

and drove the vehicle with the pseudo-cocaine in the spare tire to the parking lot of the

707 W. Grand Blvd. building. Reed admitted that the mis-identification of Defendant

Samaniego as the driver of the Silverado in his warrant affidavit was a mistake he

attributed to his lack of familiarity with the names of the defendants and his haste in

preparing the search warrant affidavit. As he pointed out at the May 17 hearing,

throughout the search warrant affidavit he had simply inverted the names of “Galindo”

and “Samaniego,” and there was no intention to mislead the magistrate.

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officers took keys from Defendant Daniels to enter his apartment; (4) that officers made a

warrantless entry of the apartment and conducted a “protective sweep”; (5) that during

the protective sweep, the officers observed an SKS rifle in a closet; and (6) that after the

initial entry, the officers entered again with Defendant in custody to obtain a pair of

pants. Defendants argue, without any citation to any authority, that Officer Reed’s

omission of the above information “suggests an intent to conceal these facts from the

magistrate” and that “[i]t is quite likely, that had the magistrate known of the prior

entries, she may have either questioned the tactics or questioned the credibility of the

affiant” and decided not to issue the warrant.

Defendants engage in pure speculation here. More importantly, they have failed

to demonstrate how any of the above omissions negate the magistrate’s finding of

probable cause. “[T]o be constitutionally problematic, the material must have been

deliberately or recklessly omitted and must have undermined the showing of probable

cause.” United States v. Duval, 742 F.3d 246, 251 (6th Cir.), cert. denied, 135 S.Ct. 116

(2014) (quoting United States v. Carpenter, 360 F.3d 591, 596-97 (6th Cir. 2004) (en

banc)). Defendants cannot show that these omissions undermined the showing of

probable cause.

Officer Reed was questioned extensively at the hearing about each of the aboveenumerated omissions. As for having omitted from his affidavit that a GPS tracker had

been placed on the Silverado, Reed testified that he did not mention the GPS tracker

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because he did not believe it was relevant. He explained that Task Force officers had

direct eyes on the vehicle at all times while it was en route to 707 W. Grand Blvd.

(except at the very end of the trip when the truck drove to the rear of the 707 W. Grand

Blvd. apartment building) and that the tracker was put on the truck only so it could not be

driven away suddenly. Though Reed admitted that the GPS was monitored by a Task

Force Officer, he testified that the officers relied on their direct surveillance of

Defendants, not the GPS monitoring.

With regard to the issue of Daniels’ consent to Task Force officers entering his

apartment and their discovery during a protective sweep of the apartment of the rifle in

the hallway closet, Officer Reed credibly testified that he did not include any reference to

the initial entry as he was unaware of it since was not present on the scene at the time; he

was then occupied taking Defendants Kemp and Duncan-Plunkett to the holding cell and

typing up the warrant application. Reed said he was told about the circumstances of the

entry, the protective sweep, and discovery of the rifle either after he had finished typing

up his affidavit or almost done with it, And although he was informed about this initial

entry before he went to see the magistrate, he did not re-write his affidavit or tell the

magistrate about it because he felt that the facts laid out in his affidavit were sufficient

and he wanted to save time so that they could get the investigation done.

In sum, the Court finds no evidence that Officer Reed deliberately or recklessly

omitted any information from his affidavit or that any of the complained of omissions

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undermine the finding of probable cause. Indeed, as the Court pointed out to defense

counsel at the suppression hearing, most -- if not all -- of the omitted information would

have further supported a finding of probable cause for the issuance of the warrant, not

undermined it. Accordingly, the Court concludes that the search of Defendant Daniels’

residence was valid.

5

CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendants’ Daniels’ and Kemp’s Motions to

Suppress [Dkt. Nos. 91 and 93] are DENIED.

s/Gerald E. Rosen 

United States District Judge

Dated: May 31, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on May 31, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

5

 The Court’s determination that the search pursuant to the warrant was valid and

that the independent source rule applies renders it unnecessary for the Court to address

Defendant Daniels’ argument that he did not consent to the agents’ pre-warrant entry into

his apartment.

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