must show that the material was “deliberately or recklessly omitted” and that, had
it been included in the warrant affidavit, it would have negated a finding of
probable cause. United States v. Carpenter, 360 F.3d 591, 596-97 (6th Cir.

2004).

I. Paragraphs 7 and 8

Paragraph 7 of Officer Hillman’s Affidavit states as follows:

In the hours after that [early September 2016] purchase, HARRIS

contacted the CS by phone and explained that HARRIS was waiting

on a new supplier, referring to the supplier by his street name,

“BONJO.”

Doc. #80-1, PagelD#477.

Stroud challenges this statement on several grounds: (1) this conversation
was not recorded; (2) in other recorded conversations, the Confidential Source
(“CS”) cannot accurately recall the name of the new supplier, referring to him as
“BeJu,” “ByJu” and “Banjo”; and (3) during a September 16, 2016, phone call,
agents informed the CS that the supplier that Harris was talking about was
“Bonjo.” Stroud suggests that, based on the foregoing, it appears that the agents
may have “fed” his name to the CS.

The Government notes, however, that Stroud has produced no recordings or
other evidence to support this theory. Nor has Stroud produced any evidence that

Hillman’s statement—that Harris told the CS that he was waiting on “Bonjo,” who

was his new supplier—was false. The CS’s subsequent uncertainty as to the


329-4322 phone, DEA investigators observed that Target
Telephone started to appear in HARRIS' tolls about the date that
HARRIS told the CS that he was dealing with "BONJO" as a new
supplier. The subscriber for Target Telephone is "Stroud
Enterprises LLC” with an address on 3761 Denlinger Road in
Dayton. This same address was listed on STROUD's 2011 Ohio
driver's license.

10. On 16 September 2016, HARRIS told the CS he was
about to meet with "BONJO" to re-supply. HARRIS' tolls on that
day show the Target Telephone was in contact with HARRIS'
phone (13) thirteen times. HARRIS had contact with only one
other number other than the Target Telephone that day on “his
business phone". Based on the above information, Affiant believes
STROUD is the supplier HARRIS referred to as ''BONJO." By
identifying the Target Telephone's location, investigators can
identify STROUD's location and places where drugs are being
stored and distributed, and the[n] possibly identify others who may
be involved in the drug trafficking activity.

Doc. #80-1, PagelD#478.

Stroud again maintains that paragraphs 9 and 10 contain materially false
information, given that none of the toll data for Harris’s 937-329-4322 phone
number indicates that Harris and Stroud were in communication with each other by
telephone in mid-September of 2016. Stroud argues that once these materially
false statements are stripped from Hillman’s Affidavit, the magistrate judge could
not have concluded that probable cause existed to issue the October 21, 2016,
search warrant.

As previously noted, the Government concedes that Hillman’s statement
that Harris and Stroud were in telephone contact 13 times on September 16,

2016, is inaccurate. It argues, however, that Stroud has failed to make a

substantial preliminary showing that Hillman intentionally made any false

10


Stroud now argues, however, that Hillman made a material omission by
failing to include additional information about what happened on the day that this
conversation allegedly took place. A DEA report concerning Harris's activities on
the afternoon of September 16, 2016, indicates that the CS attempted to make a
controlled buy, but Harris had no drugs available at that time. He told the CS that
he would call him after he obtained more from “his baby mama’s daddy.” Harris
confirmed that this was the same guy who used to supply drugs in Cincinnati
(referring to Stroud). Doc. #80-2, PagelD#485.

Stroud argues that one would expect that, if he was, in fact, Harris’s new
supplier, officers would have observed Harris meeting with him immediately after
Harris's conversation with the CS. However, there is no evidence that Harris met
with Stroud on the afternoon of September 16, 2016.

The DEA report indicates that officers followed Harris to a house in Dayton,
where they observed him with Tonisha Williamson. The officers then observed
Harris leave her residence and drive to Markam Auto Sales. A maroon Monte Carlo
with two younger black males also arrived there. After one of those males showed
a half-full white plastic bag to a third black male who came out of the garage, all
three black males entered the garage. A black male who was not Harris then came
out and pulled Harris’s car into the garage. Officers then observed a black male
remove a full black backpack from the Monte Carlo and place it inside a black

Dodge pickup. /d. at PagelD#486.


correct pronunciation of Bonjo’s name does not give rise to an inference that Harris
never told the CS that his new supplier was known as “Bonjo.” Because Stroud
has failed to make a substantial showing that the statement at issue was false, the
concerns he raises do not warrant a Franks hearing.

Paragraph 8 of Officer Hillman’s Affidavit, concerning a controlled meeting
that allegedly took place in mid-September of 2016, between Harris and the CS,
states as follows:

HARRIS told the CS that he would call the CS in an hour after he

(HARRIS) met with HARRIS’ baby’s mama’s daddy. The CS asked

HARRIS if this was the same person who used to supply the

Cincinnati area (referring to ‘BONJO’) and HARRIS said yes. After this

meeting, the CS also reported speaking with HARRIS later that same

day (which was not monitored by law enforcement). During that

second conversation, the CS reported that HARRIS said BONJO is

feeling HARRIS out and not fronting HARRIS large quantities of drugs

at this time, because BONJO is seeing how fast HARRIS can sell the

narcotics and return with the proceeds.
Doc. #80-1, PagelD##477-78.

Hillman’s statement implies that Harris's baby’s mama’s daddy is Stroud,
aka “Bonjo,” and that Stroud is Harris’s new supplier. As discussed in the previous
Decision and Entry, Stroud denies that he is Harris’s “baby mama’s daddy.”
Nevertheless, this statement is not impeachable because Hillman was merely
repeating what the CS told him that Harris had said. Because the statement at

issue was that of the CS, and not Hillman, it is not subject to a Franks analysis.

Doc. #78, PagelD#451 (citing Franks, 438 U.S. at 171).


possession. Early in September of 2016, the CS made a controlled purchase of
fentanyl! from Harris, who told the CS that he was waiting on a new supplier
named “Bonjo.” Harris confirmed that this person had previously supplied drugs in
the Cincinnati area. In mid-September, Harris also told the CS that Bonjo was not
fronting him large quantities of drugs at that time, because he first wanted to see
how quickly Harris could sell the drugs and return with the proceeds. DEA agents
knew that “Bonjo” was Robert Stroud’s nickname, and that Stroud had two
previous convictions for drug trafficking in southwest Ohio. Moreover, Stroud’s cell
phone number started to appear in Harris's cell phone records about the same date
that Harris told the CS that Bonjo was his new supplier. Under these
circumstances, including information about the contents of the DEA report in

Hillman’s Affidavit would not be sufficient to negate a finding of probable cause.

Ml. Paragraphs 9 and 10

Paragraphs 9 and 10 of Hillman’s October 21, 2016, Affidavit concern
Stroud’s cellular telephone, 937-318-7977, referred to in Hillman’s Affidavit as the
“Target Telephone.” Those paragraphs state as follows:

9. On 13 October 2016, a controlled-call was placed by the
CS to HARRIS. HARRIS gave the CS a new phone number where
HARRIS could be reached, namely 937-329-4322. HARRIS
referred to this new number as "his business phone". It is
common for traffickers to use certain phone numbers just for
communicating with co-conspirators in an attempt to thwart law
enforcement. DEA investigators have obtained HARRIS' cellular
phone tolls and the subscriber information of phone numbers
HARRIS calls. When analyzing the toll data from HARRIS' 937-


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 3:17-cr-183

JUDGE WALTER H. RICE

v.
ROBERT STROUD, et a/.,
Defendants.

DECISION AND ENTRY OVERRULING DEFENDANT ROBERT
STROUD’S MOTION TO RECONSIDER MOTION TO SUPPRESS AND
REQUEST FOR FRANKS HEARING (DOC. #80) AND AMENDED
MOTION TO RECONSIDER MOTION TO SUPPRESS AND TO
REQUEST FRANKS HEARING (DOC. #88)

On July 2, 2018, the Court issued a Decision and Entry Overruling Motions
of Defendant Robert Stroud and Jordan Smith for a Franks Hearing. Doc. #78.
The Court concluded that Defendants had failed to make a substantial showing
that: (1) in order to obtain the October 21, 2016, search warrant, Officer
Alexander Hillman knowingly and intentionally, or with reckless disregard for the
truth, included false statements in his Affidavit, indicating that Stroud was Harris's
“baby’s mama’s daddy” and that Stroud and Harris had 13 telephone contacts on
September 16, 2016; or (2) these allegedly false statements were necessary to a

finding of probable cause.


Paragraph 10 does contain a false statement in that Harris and Stroud were
not in contact by telephone 13 times on September 16, 2016. Stroud, however,
has presented no proof that Hillman made this false statement knowingly and
intentionally, or with reckless disregard for the truth. Moreover, given Hillman’s
access to the phone records showing numerous other telephone contacts between
Harris and Stroud between the end of September and mid-October, it cannot be
said that he entertained serious doubts about the truth of his statement or had
obvious reasons to doubt its accuracy. The Court finds that Hillman’s statement
that Harris and Stroud were in phone contact 13 times on September 16, 2016,
was, at most, negligent.

The Government further argues that, even if this statement is excised from
Hillman’s Affidavit, probable cause still exists for the issuance of the search
warrant. The Court previously held that, even if Stroud made a substantial
showing that this statement was made in reckless disregard of the truth, it was
not necessary to a finding of probable cause. Doc. #78, PagelD##456-57.
Hillman’s Affidavit indicates that Stroud’s cell phone number started appearing in
Harris’s toll records about the same time that Harris told the CS that Bonjo was his
new supplier. Regardless of whether the first telephone contact between Harris
and Stroud happened on September 16, 2016, or several days later, the other
statements in Hillman’s Affidavit are sufficient to support a finding that Robert

Stroud, aka “Bonjo,” was supplying Harris with drugs.

12


statements or that he entertained serious doubts about the truth of these
statements or had obvious reasons to doubt their accuracy. Negligent statements
are insufficient to trigger a Franks hearing. Franks, 438 U.S. at 171.

As stated in paragraph 9 of the Affidavit, Stroud’s number did, in fact, begin
showing up in toll data for Harris’s cell phone about the same time that Harris told
the CS that Bonjo was his new supplier. Toll data for 937-329-4322 indicates that
Harris was in contact with Stroud’s cell phone on September 27, 2016, October 5,
2016, October 6, 2016, October 7, 2016, October 8, 2016, October 10, 2016,
and October 13, 2016. Doc. #98-2, PagelD##560-68. Accordingly, paragraph 9
of Hillman’s Affidavit does not contain any false statements.

Stroud maintains that, because the Government did not obtain this data from
T-Mobile until November 10, 2016, it was not available to DEA agents and could
not have been relied upon by Hillman in support of his October 21, 2016,

Affidavit. The Government, however, has submitted a Declaration of Scott
Morningstar, a Support Analyst to the DEA Dayton Resident Office. He indicates
that, on October 13, 2016, a subpoena was sent to AT&T, requesting toll data for
937-329-4322, from September 13, 2016, through October 12, 2016. AT&T
provided that data, which Morningstar made available to DEA investigators in the
Dayton Resident Office, on October 18, 2016. Doc. #98-1, PagelD#549.
Accordingly, Hillman did have access to these phone records prior to swearing his

October 21, 2016, Affidavit.

11


Because Stroud is not implicated in the DEA report, he argues that including
information about that report in the Affidavit would have negated any suggestion
that Harris met with him on September 16, 2016, or that he was Harris’s new
supplier. He maintains that, in omitting this information from his Affidavit, Hillman
engaged in a reckless disregard for the truth.

The Government, however, argues that Stroud has failed to make a strong
preliminary showing that this omission was made with the intent to mislead the
magistrate. The Court agrees. Hillman was simply recounting the conversations
that took place between Harris and the CS, conversations that give rise to a strong
inference that Stroud is Harris’s new supplier. Although the DEA report could be
construed to discredit the CS’s statements, Stroud has presented no proof that
Hillman deliberately or recklessly omitted the contents of that report from his
Affidavit with the intent to mislead.

Moreover, Hillman’s omission of the contents of the DEA report is not
material to the question of probable cause. Regardless of whether Harris and
Stroud actually met each other on September 16, 2016, the same day that Harris
told the CS that “Bonjo” was his new supplier, there is ample other evidence to
support a finding of probable cause to believe that collecting information
concerning the location of Stroud’s cell phone would lead to evidence of drug
trafficking activity.

As the Court explained in its previous Decision and Entry, Hillman’s Affidavit

indicates that the CS had observed Harris with large quantities of narcotics in his


In other words, a hearing is required only if the defendant makes a
substantial preliminary showing that: (1) a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included in the warrant
affidavit; and (2) that allegedly false statement is necessary to the finding of
probable cause. /d.

Warrant affidavits are presumed to be valid. Accordingly, allegations that
they contain deliberately false or misleading statements or statements made with
reckless disregard for the truth “must be accompanied by an offer of proof.” /d. at
171. “Allegations of negligence or innocent mistake are insufficient.” /d. A
statement is made “with reckless disregard for the truth” when viewing all the
evidence, “the affiant in fact entertained serious doubts as to the truth of the
affidavits or had obvious reasons to doubt the accuracy of the information
contained therein.” United States v. Cican, 63 F. App’x 832, 835-36 (6th Cir.
2003).

A defendant may also obtain a Franks hearing based on an allegedly material
omission in a warrant affidavit; however, this is subject to a higher standard.
United States v. Fowler, 535 F.3d 408, 415-16 (6th Cir. 2008). In Mays v. City
of Dayton, 134 F.3d 809 (6th Cir. 1998), the Court held that, “except in the very
rare case where the defendant makes a strong preliminary showing that the affiant
with an intention to mislead excluded critical information from the affidavit, and
the omission is critical to the finding of probable cause, Franks is inapplicable to

the omission of disputed facts.” /d. at 816 (emphasis in original). The defendant


November 10, 2016, those records could not have formed the basis for the
issuance of the October 21, 2016, search warrant.

On August 28, 2018, the Government filed its Response to the Amended
Motion to Reconsider, Doc. #98. It again argues that Stroud has failed to make a
substantial preliminary showing the Hillman entertained serious doubts about the
truth of his Affidavit or had an obvious reason to doubt the accuracy of the
information contained therein. The Government provides evidence that Hillman did
have access to the relevant cell phone records prior to requesting the warrant. It
also again argues that, even if paragraph 10 is excised from the Affidavit, probable

cause still exists.

I Relevant Law
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held as
follows:

[W]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant's request. In the event that at
that hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence,
and, with the affidavit's false material set to one side, the
affidavit's remaining content is insufficient to establish probable
cause, the search warrant must be voided and the fruits of the
search excluded to the same extent as if probable cause was
lacking on the face of the affidavit.

/d. at 155-56.


The Court further concluded that, viewing the Affidavit as a whole, there
was sufficient evidence to support a finding that Stroud was engaging in drug
trafficking activity, and that there was a fair probability that a search warrant
authorizing collection of information about the location of Stroud’s cell phone
would lead to evidence of that drug trafficking activity. Doc. #78, PagelD#455.
Accordingly, the Court found that no Franks hearing was warranted.

Defendant Stroud has filed a Motion to Reconsider Motion to Suppress and
Request for Franks Hearing, Doc. #80, in which he raises several new arguments.
He now argues that: (1) paragraphs 7 and 8 of Hillman’s Affidavit contain other
material omissions and false statements that destroy probable cause for the search
warrant; and (2) paragraphs 9 and 10 of Hillman’s Affidavit contain other false
statements that destroy probable cause for the search warrant.

The Government filed a Response, Doc. #86, arguing that Stroud has failed
to make a substantial preliminary showing that Hillman made a material omission
with intent to mislead the issuing judge or that such an omission was critical to a
probable cause finding. It also argues that Stroud failed to show that a material
misstatement was made intentionally or with reckless disregard for the truth.

On August 1, 2018, Stroud filed an “Amended Motion to Reconsider Motion
to Suppress and to Request Franks Hearing,” Doc. #88. Although entitled an
“Amended Motion,” this document appears to be merely a supplement to the initial
Motion to Reconsider. Stroud maintains that, because certain cell phone records

allegedly relied upon by the Government were not provided by T Mobile until


Nothing in Stroud’s Motion to Reconsider or his Amended Motion to
Reconsider convinces the Court that the statement at issue was necessary to a
finding of probable cause. For the reasons previously stated, the Court finds that,
even if the offending statement is excised from the Affidavit, there is still a fair
probability, given the totality of the circumstances, that contraband or evidence of
a crime would be found by tracking the location of Stroud’s cell phone.

Accordingly, the Court OVERRULES Defendant Stroud’s Motion to
Reconsider Motion to Suppress and Request for Franks Hearing, Doc. #80, and
Defendant Stroud’s Amended Motion to Reconsider Motion to Suppress and

Request for Franks Hearing, Doc. #88.'

Date: September 17, 2018 hun na

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

’ On August 13, 2018, the Court held an evidentiary hearing on the non-Franks

aspects of the Motions to Suppress. The Court will issue a decision after post-
hearing briefs have been filed.

13