UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 2:11-CR-010(1)

JUDGE SMITH

SEAN MURPHY,

Defendant.

OPINION AND ORDER

This matter is before the Court on the Defendant’s Motion to Suppress Evidence (Doc. 113). 

Defendant moves to suppress anything recovered as a result of the search and seizure at his home,

407 Walnut Street, Lynn, Massachusetts, on January 23, 2009. Defendant also requests that all

observations made and information obtained by the officers and agents as a result of the search be

suppressed. 

A. BACKGROUND

On January 23, 2009, federal, state and local authorities executed a series of search warrants

at Defendant Murphy’s home at 407 Walnut Street, Lynn, MA; at his moving storage warehouse;

and on his vehicle. Defendant is only seeking to suppress the warrant issued for the search of his

home. Defendant has attached a copy of the search warrant executed on his home as an exhibit to

the Motion. However, Defendant has failed to attach the second search warrant issued on his home

that same day. The Government has responded and has attached the second search warrant, as well

as all the exhibits to both warrants. 

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The Court held a hearing on Defendant’s Motion on October 12, 2011. At the hearing, the

Court heard testimony from Lieutenant Alan C. Zani with the Massachusetts State Police, the affiant

on the search warrants. The Defendant did not present any witnesses, but did submit an exhibit, the

grand jury testimony of Jordayne Hartman, in support of his arguments.

Counsel for the Government questioned Lieutenant Zani about his background and his basis

for the initial search warrant, which included detailed information of Defendant’s criminal history,

and interviews with witnesses, specifically Jordayne Hartman. Lieutenant Zani also described what

was observed during the initial search and how he acted with an abundance of caution in obtaining a

second search warrant to expand the scope of the search. 

B. STANDARD OF REVIEW

The Fourth Amendment to the United States Constitution provides that “the right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . ..” U.S.

Const. amend IV. Therefore, search warrants are prohibited unless they have been issued “upon

probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. In order to demonstrate

probable cause sufficient to justify a search warrant, the proponent must submit an affidavit that

“indicate[s] a fair probability that evidence of a crime will be located on the premises of the proposed

search.” United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005). In other words, the affidavit

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

Williams, 544 F.3d 683, 686 (6th Cir. 2008) (quoting United States v. Bethal, 245 Fed. Appx. 460,

464 (6th Cir. 2007)). 

In reviewing the sufficiency of evidence, the Court is limited to examining the information

contained within the four corners of the affidavit. United States v. Frazier, 423 F.3d 526, 531 (6th

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Cir. 2005). The Sixth Circuit has recently restated that in reviewing an application for a search

warrant, the Court must consider the totality of the circumstances and “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.”

Ellison v. Balinski, 625 F.3d 953, 958 (6th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). Probable cause may derive from information provided by a confidential informant, so long

as the information is “sufficiently detailed and corroborated by the independent investigation of law

enforcement officers.” United States v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998).

Warrant affidavits carry a “presumption of validity” and the challenger’s attack must focus on

statements made by the affiant, and not statements the affiant states were made by a

nongovernmental informant. Franks v. Delaware, 438 U.S. 154, 171. The burden is on the

Defendant to establish the invalidity of a facially adequate warrant. The issuing court’s

determination of probable cause in the issuance of the search warrant is given great deference. 

United States v. Swihart, 536 F.2d 715 (6th Cir. 1976); United States v. Chaffin, 622 F.2d 927 (6th

Cir. 1980). 

C. DISCUSSION

Defendant Murphy sets forth seven arguments in support of his Motion to Suppress: (1) the

application for the search warrant contains material misstatements of fact; (2) the Affiant omitted

material information from the Affidavit; (3) there was a lack of corroboration on information

received; (4) the Affidavit contained excessively stale information; (5) there was no nexus between

the items sought and criminal activity associated to those items; (6) the officer used the search for

business-related records as a pretext to search for other evidence; and (7) the officers searched

beyond the scope of the Search Warrant.

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The Government argues that “[t]he defendant’s motion contains no assertion that the affidavit

in support of the search warrant was deceptively drawn or contained factual misrepresentations. It

merely alleges that following the execution of the warrant, one Informant, Jordayne Hartman, made

some alleged inconsistent statements than those that appear in the FBI 302 report documenting her

interview.” (Gov’t Response at 3). Nonetheless, the Court will consider each of Defendant’s

arguments in turn.

1. Misstatements

Defendant asserts that the five page statement given by Jordayne Hartman on January 15,

2009 is “riddled with misstatements, falsities and outright lies.” (Def.’s Mot. at 4). Ms. Hartman

met with federal and state authorities at Woburn District Court where she was appearing for a felony

burglary charge unrelated to Defendant. Ms. Hartman provided this statement in exchange for a

favorable outcome on her pending charges. 

Defendant sets forth specific statements made by Ms. Hartman and then provides argument

as to why each statement is incorrect. Defendant also asserts that the statements made by Frank

Senibaldi and Thomas Enquist were false. Defendant therefore argues that he has made a substantial

showing that the affiant knowingly and intentionally or with reckless disregard for the truth, included

a false statement in the warrant affidavit. Specifically, Defendant argues that Lieutenant Zani knew

or should have known that the aforementioned informants provided false information that he

included in the affidavit in support of the search warrant. 

Reckless disregard can be established by evidence that the officer acted “with a high degree

of awareness of [a statement’s] probable falsity,” that is, “when viewing all the evidence, the Affiant

must have entertained serious doubts as to the truth of the statement or had obvious reasons to

doubt the accuracy of the information reported.” Wilson v. Russo, 212 F.3d 781, 788 (3rd Cir.

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2000). 

The Government does not address each alleged misstatements by Ms. Hartman, but does

argue that regardless of the alleged inconsistencies, they do not affect the validity of the search

warrant. Specifically, with respect to the cell phone jammer, regardless of the description of it, the

fact that Murphy had one in his possession is noteworthy for the reviewing judge. Next, the alleged

mistakes made by Hartman is in the description of jewelry obtained via Defendant Murphy’s criminal

activity were not material. The critical issue was that Hartman described that Defendant Murphy had

jewelry in his possession that was taken during the E.A. Dion burglary in Massachusetts. Finally,

there is no question that Hartman knew that Defendant Murphy used an alias when he conducted

business at a New Hampshire rental company. While Hartman may have made some inconsistent

statements during the grand jury proceeding, weeks after the execution of the search warrant, that

does not affect the validity of the search warrant. 

Lieutenant Zani testified that Ms. Hartman gave crucial information that Defendant Murphy

had a cell phone jammer and that he had given his girlfriend Rikkile Brown a New York Giants

superbowl ring. Ms. Hartman also stated that Defendant Murphy has used aliases, which was

consistent with information already known about Defendant and confirmed in subsequent

investigations. 

Again, Defendant Murphy is not alleging that the affiant made any false statements in the

affidavit, but is challenging false statements made by Jordayne Hartman, a witness who provided

information that formed the basis for the search warrant. Regardless of the alleged inconsistent

statements, they do not suggest that the affiant misrepresented facts to the judicial officer, or acted

with reckless disregard in his approach to the facts. Since the affiant was not deceptive and made no

misrepresentation in the search warrant affidavit, there is a presumption of validity that is attached to

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the affidavit requesting the warrant. United States v. Breckenridge, 782 F.2d 1317, 1322 (5th Cir.

1986). The Court finds based on the affidavit in support of the search warrants and the testimony

here in Court today that the affiant, Lieutenant Zani, was quite thorough in providing a very detailed

description of the ongoing investigation, as well as detailed attachments for the judicial officer to

consider in support of the search warrant application. 

2. Omissions of Material Information

Defendant argues that on January 20, 2009, the Affiant appeared at a meeting in the Boston

FBI office to discuss Mr. Murphy’s case. During the meeting, SA Cabral of the FBI stated that he

spoke to Dennis Dion of the E.A. Dion Company to attempt to verify the information that Jordayne

Hartman provided. Defendant argues that this information was not included in the affidavit because

“Hartman claimed to have seen gold bars when none were stolen from E.A. Dion. Hartman also

claimed to have received a gold ring with the red ruby bearing the Radio Shack logo, when no such

ring existed. Dennis Dion surely would have told this to SA Cabral, which would have dispelled

Hartman’s statement.” (Def.’s Mot. at 9). 

Defendant argues that these material omissions amount to reckless disregard. “Reckless

disregard” can be established by evidence that police “failed to inform the judicial officer of facts [he]

knew would negate probable cause.” Beauchamp v. City of Noblesville, Inc., 320 F.3d 733, 743 (7th

Cir. 2003). 

Lieutenant Zani testified that the evidence of Defendant giving his girlfriend Brown a

superbowl ring helped further the investigation; however, there is no testimony regarding gold bars

or a Radio Shack ring. Based on all the other evidence and testimony presented, the court finds that

this evidence, or lack thereof, is not material and therefore does not amount to reckless disregard. 

3. Lack of Corroboration

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Defendant argues that the Affiant failed to corroborate many of the statements made by

Jordayne Hartman, as well as the information received from Frank Senibaldi and Thomas Enquish. 

Accordingly, Defendant argues that uncorroborated information received by police does not provide

probable cause. United States v. Hammond, 351 F.3d 765 (6th Cir. 2003); United States v.

Monteiro, 447 F.3d 39 (1st Cir. 2006); United States v. Leake, 998 F.2d 1359 (6th Cir. 1993). 

The Affiant Lieutenant Zani, however, testified that he did corroborate the testimony. 

Specifically, Lieutenant Zani testified that he was involved in an investigation of some burglaries and

was aware of Defendant Murphy’s past criminal behavior that included renting a truck in his

company name and contacting a business using his business name. These two businesses, North

Shore Movers and Angel One Security, were being operated out of Defendant Murphy’s home. 

Lieutenant Zani further testified that during the interview with Ms. Hartman, she was able to tie

much of this information together, providing the basis for the search warrant. Therefore, the Court

finds that there was sufficient corroboration of the information received by Lieutenant Zani that

provided probable cause for the issuance of the search warrant. 

4. Stale Information

Defendant argues that the statement from Anthony Cataldo from February 20, 2007,

referenced a 2006 burglary, which is stale and may negate the finding of probable cause. See United

States v. Thomas, 757 F.2d 1359, 1367-68 (2nd Cir. 1989). Defendant also argues that the Enquish

statement mentioned a bicycle shop break-in from 1984 in Saugus, Massachusetts. Further,

Defendant asserts that the information provided by Ms. Hartman was at least seven months old or

more. Additionally, at the hearing, defense counsel argued that all evidence of Defendant’s criminal

activity from 1984 through the Amerisource burglary in 2006 is stale information negating probable

cause for the search warrant.

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The Government, however, argues that this information is not stale, but rather, establishes a

propensity by the Defendant to use his businesses as a front for his high end burglaries, such as

renting a truck under his business name. Then the interview with Ms. Hartman helped to bring it all

together, when she mentioned how Defendant Murphy used his businesses in the burglaries. There is

no question that this alleged stale information was not being offered to establish probable cause on

its own. Lieutenant Zani even stated that they did not expect to find items from these older crimes

during the search of Defendant’s home. Rather, Lieutenant Zani testified that this information was

not stale, but rather that “displaying an ongoing pattern of behavior overcomes any staleness or at

least combats stale information.” (Hearing Tr. at 22). 

Defendant references United States v. Brooks, 594 F.3d 488 (6th Cir. 2010), in support of his

argument that the aforementioned activities of Defendant are stale. The Brooks Court noted that “in

seeking to establish probable cause to obtain a search warrant, the affidavit may not employ ‘stale’

information, and whether information is stale depends on the ‘inherent nature of the crime.’” Id. at

493 (quoting United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)). The Court continued:

Whether information is stale in the context of a search warrant turns on several

factors, such as “the character of the crime (chance encounter in the night or

regenerating conspiracy?), the criminal (nomadic or entrenched?), the thing to be

seized (perishable and easily transferable or of enduring utility to its holder?), [and]

the place to be searched (mere criminal forum of convenience or secure operational

base?).” United States v. Hammond, 351 F.3d 765, 771-72 (6th Cir. 2006) (quoting

United States v. Greene, 250 F.3d 471, 480-81 (6th Cir. 2001)). In the context of

drug crimes, information goes stale very quickly “because drugs are usually sold and

consumed in a prompt fashion.” United States v. Frechette, 583 F.3d 374, 378 (6th

Cir. 2009).

Id. at 493. 

Regardless of the finding by the Court that the information was stale “for purposes of

establishing probable cause in its own right,” the Court noted that the Government was “arguing that

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the otherwise stale information is nevertheless relevant, and properly considered by the magistrate, to

add flavor and force to the non-stale information.” Id. at 494.

The Court agrees with the Government in this case, that the information establishes a

propensity by the Defendant to use his businesses as a front for high end burglaries, or that there was

at least a commingling of business and criminal operations. “Information which demonstrates a chain

of related events covering a broad span of time continuing to the current period may furnish a most

reliable indicia of present activity, thereby clearly demonstrating that probable cause exists for the

order to intrude.” United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988) (quoting United

States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir. 1983)). Further, “the basis criterion as to the

duration of probable cause is the inherent nature of the crime.... [I]f an affidavit recites activity

indicating protracted or continuous conduct, time is of less significance.” Id. 

Accordingly, the Court finds that the information is not stale and the information is relevant

to show Defendant’s repeated criminal conduct and his use of businesses as a front or co-mingling of

his businesses with burglaries and other criminal activity. 

5. No Nexus Between the Items Sought and Criminal Activity

Defendant argues that “the Affidavit is devoid of any information alleging that Northshore

Movers of Lynn or Angel One Corporation was involved in any criminal activity that the businessrelated records would reveal.” (Def.’s Mot. at 11). 

There must be a sufficient nexus between the places and items to be searched and some sort

of criminal activity associated to those items. See United States v. Williams, 544 F.3d 683 (6th Cir.

2008). 

Lieutenant Zani testified that the search warrant application provided a sufficient nexus

between Defendant Murphy’s home and the criminal activity. Specifically, he stated that he was

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aware of the two businesses operating at Defendant’s home address, 407 Walnut Street. And, that

he had evidence that the Defendant was using those businesses in his involvement with criminal

activity. Lieutenant Zani stated that Defendant’s businesses, if not a total front, were commingled

with his criminal activities. (Hearing Tr. at 9, 17-18, 21). Accordingly, the Court finds that there

was sufficient evidence set forth in the application for the search warrant and the accompanying

affidavit and exhibits to establish a nexus between the items sought and the alleged criminal activity. 

6. Business-Related Records Used as Pretext to Search for Other Evidence

Defendant argues that “totality of the circumstances” supports a finding that the search for

business-related records was a pretext to search for evidence of crimes that police were investigating

and that possibly involved Defendant Murphy. Defendant asserts that there was no need to bring 19

officers and agents to his small one-family home to search for business-related records of a small

business. Next, he asserts that the officers intent and objective was established based on where they

searched and what they seized. Finally, Defendant asserts pretext because the officers entered his

home with their pistols drawn and handcuffed the Defendant claiming he was the target of a major

investigation. 

Lieutenant Zani testified that he, along with the other law enforcement officers, were looking

for business records at Defendant’s home based on their belief that Defendant Murphy was using his

businesses as a front for criminal activity. Lieutenant Zani provided sufficient testimony to establish

this, specifically that Defendant Murphy was apprehended in a truck following a burglary of a Costco

in Pennsylvania and the truck was rented in the name of Defendant Murphy’s business. 

The Court agrees that there was probable cause for the execution of the search warrant for

Defendant’s business records. Further, this search did not constitute pretext to search for other

evidence because when other potential evidence was observed in plain sight by officers, a second

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search warrant was obtained expanding the scope of the initial search warrant. 

7. Search Beyond the Scope of the Search Warrant

Defendant argues that the search warrant for his home was limited to business-related records

only, yet the officers and agents exceeded the scope of the search warrant. Defendant argues that

there are three specific items that must be excluded as beyond the scope: two Massachusetts licenses

bearing Murphy’s picture; a half-moon series key; and a Carnival Cruise guest folio. Defendant

argues that these items were beyond the scope of the search warrant. However, Defendant Murphy

fails to even acknowledge that the officers obtained a second search warrant on his home based on

the information observed in plain view while executing the first search warrant. There is no question

that these items were the subject of the second search warrant and therefore the search of

Defendant’s home did not exceed the scope of the search warrants. 

D. CONCLUSION

Based on the totality of the circumstances, there is no question that the Judge had a

substantial basis to conclude that there was a fair probability that contraband would be found in

Defendant Murphy’s home. The affidavit in support of the search warrant contained adequate detail

regarding the suspected criminal activity of Defendant Murphy and the items expected to be found at

his home, which is sufficient to support the Judge’s finding of probable cause to issue the search

warrants. Further, Defendant Murphy has failed to show that specific portions of the affiant’s

statements are deliberately or recklessly false. 

Even if this Court were to conclude that the search warrants were not supported by probable

cause, the Supreme Court has held that the Fourth Amendment’s exclusionary rule does not require

suppression of evidence where law enforcement agents act in reasonable reliance on the search

warrant issued by a Magistrate or Judge, even when such search warrant is ultimately determined to

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be unsupported by probable cause. United States v. Leon, 468 U.S. 897 (1984). Here, the evidence

shows that the law enforcement officers acted in reasonable reliance on the search warrants issued by

the judicial officer in the search of Defendant’s home. For this additional reason, Defendant’s

Motion to Suppress is without merit. 

In light of the aformentioned discussion, the Court finds there was sufficient probable cause

for the issuance of both of the search warrants on Defendant Murphy’s home. Accordingly,

Defendant’s Motion to Suppress is DENIED. 

The Clerk of this Court shall remove Document 113 from the Court’s pending motions list.

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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