1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Plaintiff, Case No. 1:18cr023

v. Judge Michael R. Barrett

Calvin Tuck – 1,

Defendant.

ORDER

This matter is before the Court on Defendant Calvin Tuck’s Motion to Suppress 

Evidence (Doc. 85), the Government's Response in Opposition (Doc. 88), and 

Defendant’s Supplemental Authority (Doc. 93). Defendant moves to suppress all 

evidence and contraband seized from 5039 Casa Loma Boulevard Hamilton County, 

Ohio, on December 8, 2017 and argues that the search warrant obtained to search 5039 

Casa Loma Boulevard violated his Fourth Amendment rights. (Doc. 85). Specifically, 

Defendant contends that the search warrant was not supported by sufficient probable 

cause, as the supporting affidavit did not establish the requisite nexus between the place 

to be searched and the items to be seized. (Id.).

I. BACKGROUND

On June 27, 2018, the Court held an evidentiary hearing and argument on the “four 

corners of the affidavit” at issue. (Doc. 89); see United States v. Frazier, 423 F.3d 526, 

531 (6th Cir. 2005) (holding that a court’s “review of the sufficiency of the evidence 

supporting probable cause is limited to the information presented in the four-corners of 
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the affidavit.”). At the hearing, the Government provided the Court with Exhibit A which 

contains the affidavit at issue, the search warrant at issue, and the return on search 

warrant which permitted officers to search the residence at 5039 Casa Loma Boulevard

and four motor vehicles.1 Following arguments, Defendant submitted Supplemental 

Authority in support of his Motion to Suppress in the form of the Sixth Circuit’s recent

decision in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). (Doc. 93).

II. ANALYSIS

The Fourth Amendment provides that “[t]he 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, 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.

Where an affidavit is submitted as the basis for probable cause in support of a 

search warrant, the Fourth Amendment requires that the affidavit “must provide the 

magistrate with a substantial basis for determining the existence of probable cause.”

United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting Illinois v. Gates, 

462 U.S. 213, 239 (1983)). “This requires ‘a nexus between the place to be searched 

and the evidence sought,’ ‘at the time the warrant is issued.’” Christian, 893 F.3d at 853

(citing United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006), and United States 

v. Hython, 443 F.3d 480, 485 (6th Cir. 2006)). “The connection between the [location to 

 1 Defendant does not contest the Government's search of the motor vehicles.
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be searched] and the evidence of criminal activity must be specific and concrete, not 

‘vague’ or ‘generalized.’” United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016).

The probable-cause standard is practical and nontechnical. [ ] Frazier,

423 F.3d [at] 531 [ ]. In other words, a reviewing court should consider

the “totality of the circumstances” rather than “engage in line-by-line

scrutiny of the warrant application’s affidavit.” United States v.

Williams, 544 F.3d 683, 686 (6th Cir. 2008). But the court must limit

its “review of the sufficiency of the evidence supporting probable cause

. . . to the information presented in the four-comers of the affidavit.”

Frazier, 423 F.3d at 531.

Christian, 893 F.3d at 853.

In Christian, in reversing the district court’s denial of the defendant’s motion to 

suppress, the Sixth Circuit found fault with the sufficiency of the affidavit as it related to 

the defendant’s criminal history, a controlled buy, a confidential informant, and

surveillance by law enforcement. As those areas of concern are similar to the areas of 

concern in this case, the Court will compare and contrast the affidavits using those areas. 

Before doing so, the Court notes that the affidavit in this case begins by setting forth, in 

sufficient detail, information regarding the Affiant’s background and experience in 

narcotics investigations, including working with a team of investigators who are trained 

and experienced in narcotics investigations, interviewing numerous individuals arrested 

for various drug offenses, and familiarity of the methods that drug traffickers utilize for the 

sale and distribution of narcotics. Search Warrant Affidavit, page 2. The Affiant then 

explains how, in October 2017, the Affiant received information from a source which 

identified Defendant as a heroin trafficker in Cincinnati, Ohio, using the cellular phone 

number (513) 714-6919. Id. The Affiant explains that the Affiant confirmed Defendant’s

identification using personal knowledge of Defendant, a picture obtained from the Ohio 

Bureau of Motor Vehicles, and the source’s visual identification of Defendant based on 
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that picture. Id. With that background, the Court turns to the areas of concern highlighted 

in Christian. The Court will begin by comparing the criminal histories of Christian and 

Defendant Tuck. The Court will then compare the controlled buys, confidential 

informants, and surveillance methods found in the two cases.

CRIMINAL HISTORY - CHRISTIAN

Christian has been convicted of several drug-related crimes over a

nineteen-year period: (1) possession of cocaine in 1996, (2) an

unspecified second controlled-substance offense in 2002, (3)

delivery/manufacture of marijuana and possession of a firearm by a

felon in 2009, and (4) delivery/manufacture of cocaine in 2011.

Christian, 893 F.3d at 852. The Sixth Circuit found indicia of Christian’s criminal history 

to be sporadic, dated, and not inconsistent with occasional sales (i.e., his sales were not

protracted and continuous or ongoing and continuous). Id. at 862-63. The Sixth Circuit 

concluded “that Christian’s prior criminal convictions, even considered with the eightmonth-old controlled buy, d[id] not establish that he was engaged in protracted and 

continuous drug activity" and that "absent some 'independently corroborated fact that the 

defendant[ ] w[as a] known drug dealer[ ] at the time the police sought to search [his] 

home,’ probable cause did not exist to search the Residence based on Christian’s criminal 

record.” Id. at 863 (citing McPhearson, 469 F.3d at 524).

CRIMINAL HISTORY - TUCK

In August of 2014, Tuck was arrested for multiple drug trafficking, drug 

possession and tampering with evidence charges (B1404582 and 

B1404361-B) by Cincinnati Police Department. Tuck was convicted and 

sentenced to six months in the Ohio Department of Corrections. In 

September of 2017, Tuck was arrested for trafficking in drugs and drug 

possession (B1705615–A), was indicted by the Hamilton County Grand 

Jury and is currently assigned to the Honorable Judge Thomas Heekin.
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Search Warrant Affidavit, page 2. At the time of the search warrant, Defendant 

was under indictment for an alleged drug offense. Stated otherwise, Defendant’s

criminal history was detailed and recent.

CONTROLLED BUYS AND CONFIDENTIAL INFORMANTS - CHRISTIAN

InDecember 2014, Officer Bush “had contact with a credible and reliable

informant who provided information on several drug traffickers including

Tyrone Christian.” The affidavit states that the unnamed informant

"provided names, nicknames, phone numbers, residences utilized by the

drug traffickers and information regarding specific drug transactions," and

that Officer Bush was "able to confirm much of the information provided."

At the direction of Officer Bush, the informant conducted a controlled

purchase of drugs from Christian at the Residence in January 2015,

eight months before the warrant in question. The affidavit notes that

the drugs purchased were field tested with positive results.

“Within the last four months, [Officer Bush] has been involved in or

received information from several debriefs of subjects who have stated

that [ ] Christian is a large scale drug dealer. These subjects further stated

that they have purchased large quantities of heroin and crack cocaine

from Christian at 618 Grandville Avenue [ ] in the last four to five months.”

Christian, 893 F.3d at 852. The affidavit in Christian described a sole controlled 

buy, using a single confidential informant, that occurred eight months prior to the 

execution of the search warrant. Id. at 860. The Sixth Circuit explained that 

“[S]tale information cannot be used in a probable cause determination.”

United States v. Perry, 864 F.3d 412, 414 (6th Cir. 2017) (quoting United

States v. Frechette, 583 F.3d 374, 377 (6th Cir. 2009)); see also United

States v. Harris, 255 F.3d 288, 299 (6th Cir. 2001) (“Because probable

cause to search is concerned with facts relating to a presently existing

condition, . . . there arises the unique problem of whether the probable

cause which once existed has grown stale.” (quoting United States v.

Spikes, 158 F.3d 913, 923 (6th Cir. 1998))). Whether evidence is stale is

a flexible inquiry that does not “create an arbitrary time limitation within

which discovered facts must be presented to a magistrate.” United States

v. Greene, 250 F.3d 471, 480 (6th Cir. 2001) (quoting Spikes, 158 F.3d at

923). “ A key but by no means controlling issue is the length of time 

between the events listed in the affidavit and the application for the warrant.”
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United States v. Leaster, 35 F. App'x 402, 406 (6th Cir. 2002). Courts

should consider several factors, including:

[1] [t]he character of the crime (chance encounter in the night or

regenerating conspiracy?), [2] the criminal (nomadic or entrenched?), [3] the

thing to be seized (perishable and easily transferable or of enduring utility

to its holder?), [4] the place to be searched (mere criminal forum of

convenience or secure operational base?).

Greene, 250 F.3d at 480-81 (quoting Spikes, 158 F.3d at 923).

Christian, 893 F.3d at 857-58. The Christian majority analyzed the four Greene factors 

and concluded, on balance, that the affidavit lacked sufficient information—indeed 

”almost no detail”—about the controlled buy and the informant involved. Id. at 859.

CONTROLLED BUYS AND CONFIDENTIAL INFORMANTS - TUCK

In November of 2017, the Affiant utilized two separate confidential and 

reliable informants (hereinafter referred to as the CI#1 and CI#2) during the 

course of this investigation and began making controlled heroin purchases 

while under law enforcement supervision from Calvin Tuck. CI #1 and CI#2

are reliable in that they have provided information which has proven true 

and correct through independent investigations. CI#1 and CI#2 have also 

provided assistance, on independent investigations, that has led to the 

recovery of illegal narcotics and convictions of illegal drug traffickers. The 

Affiant showed CI#1 and CI#2 a photograph from the Ohio Bureau of Motor 

Vehicles and confirmed the identity of Calvin Tuck.

For each control heroin purchase, CI#1 and C #2’s person and/or vehicle 

were searched before and after the drug transaction by the Affiant resulting 

in no US currency or unauthorized contraband found. At the Affiant’s

direction, CI#1 and CI#2 placed cellular phone calls to Tuck which were 

monitored by law enforcement personnel. CI#1 and CI#2 identified Tuck as 

the individual who sold him/her the heroin in each controlled heroin 

purchase. Following each drug transaction, the illegal narcotics were sent 

to the Hamilton County Crime Lab for testing resulting in a positive testing 

for heroin.

. . .

On November 13, 2017, the Affiant and other members of the Cincinnati 

Police Department utilized CI#1 to place a telephone call to Tuck at (513)-

714-6919. During this telephone call, Tuck arranged to sell a quantity of 

heroin to CI#1 within the Cincinnati, Ohio area. Following the telephone 
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call, while under law enforcement supervision, CI#1 was driven by Officer 

Zeller to meet Tuck at the predetermined location within Cincinnati, Ohio. 

Once CI#1 and Officer Zeller were at the arranged meeting location, they 

observed a silver Nissan Maxima bearing Ohio license plate of HDY2116,

parked in the lot. Officer Zeller pulled next to Tuck who was operating the 

silver Nissan Maxima. Tuck then gave CI#1 a quantity of heroin in 

exchange for US currency.

On November 27, 2017, the Affiant and other members of the Cincinnati 

Police Department utilized CI# 2 to place a telephone call to Tuck at (513) 

714-6919. During this telephone call Tuck arranged to sell a quantity of 

heroin to CI#2 within the Cincinnati, Ohio area. Following the telephone 

call, while under law enforcement supervision, CI#2 drove to meet Tuck at 

the predetermined location within Cincinnati, Ohio. Once CI#2 was at the 

arranged meeting location, Tuck arrived operating a tan Chevrolet Malibu 

bearing Ohio license plate HBC3301. Tuck instructed CI#2 to drive to the 

next street and park. Tuck then drove alongside CI#2’s vehicle and gave 

CI#2 a quantity of heroin in exchange for US currency.

. . .

On November 30, 2017, the Affiant and other members of the Cincinnati 

Police Department utilized CI#2 to place a telephone call to Tuck at (513) 

714-6919. During the telephone call, Tuck arranged to sell a quantity of 

heroin to CI#2 within the Cincinnati, Ohio, area. Following the telephone 

call, while under law enforcement supervision, CI#2 drove to meet Tuck at 

the location, Tuck arrived operating a Hyundai Santa Fe bearing Ohio 

license plate GTJ2515. Tuck instructed CI#2 to follow him down the street. 

Tuck turned into a parking lot, turned his vehicle around and drove up to 

CI#2’s vehicle. Tuck gave CI#2 a quantity of heroin in exchange for US 

currency.

On December 5, 2017, the Affiant and other members of the Cincinnati 

Police Department utilized CI#2 to place a telephone call to Tuck at (513)-

714-6919. During the telephone call, Tuck arranged to sell a quantity of 

heroin CI#2 within the Cincinnati, Ohio area. Following the telephone call, 

while under law enforcement supervision, CI#2 drove to meet Tuck at the 

predetermined location within Cincinnati, Ohio. Once CI#2 was at the 

arranged meeting location, Tuck told CI#2 he was one street over and 

waiting. The Affiant was monitoring the real time tracking and discovered

Tuck was on Casa Loma Boulevard, one street over. Tuck arrived operating 

a Nissan Altima bearing Ohio license plate GTE1817 and waved for CI#2 

to follow. The Affiant and remaining surveillance teams followed as Tuck 

and CI#2 turned onto a side street. As Tuck attempted to sell CI#2 a 

quantity of heroin, he suddenly fled from the location before completing the 

drug sale with CI#2. A telephone call to Tuck from the CI#2 was made 
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following this. Tuck told CI#2 he saw another vehicle following closely 

behind CI#2’s vehicle and became nervous.

Search Warrant Affidavit, page 2-3. Here, the affidavit sufficiently establishes that the 

Cincinnati Police Department considered the two confidential informants reliable 

informants in independent narcotic investigations. Id. Moreover, the affidavit reflects four

controlled buys, involving the two reliable confidential informants, dated 3, 8, 11, and 25 

days prior to the execution of the search warrant (all while Defendant was under 

indictment for an alleged drug offense). Id. Based on the foregoing, and considering the 

four factors found in Greene, see 250 F.3d at 480-81, it is clear that Defendant’s criminal 

activity was on going as of December 8, 2017.

SURVELILLANCE - CHRISTIAN

On September 3, 2015—the date that the warrant was requested and

issued—surveillance of the Residence was established. A subject later

identified as Rueben Thomas was seen “walk[ing] away from the area

of 618 Grandville Avenue and leav[ing] the area in a vehicle.”

Surveillance of the vehicle continued until officers conducted a traffic stop

for a civil infraction. During the stop, officers seized approximately 20

grams of heroin from the vehicle. Thomas admitted to being on Grandville

Avenue, but denied being at the Residence, “ contrary to observations of

the law enforcement officers.”

Christian, 893 F.3d at 852. The Sixth Circuit emphasized that the affidavit did not 

state whether officers saw the subject with the defendant or saw the subject enter 

and exit the residence. Id. at 854. The Circuit held that the affidavit’s statement 

that the subject was “in the area” of the defendant’s residence was too vague of a 

description to place the subject at or inside residence. Id.
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SURVELILLANCE - TUCK

On November 30, 2017, the Affiant obtained [ ] a search warranted . . . for 

communications records on cellular number (513)714-6919. From this legal 

demand, the Affiant determined the cellular number (513)714-6919 was 

regularly present in the area of 5039 Casa Loma Boulevard.

. . .

Between the dates of December 5-7, 2017, the Affiant established 

surveillance at 5039 Casa Loma Boulevard on multiple occasions. On 

December 5, 2017, at approximately 1630 hours, the Affiant conducted 

surveillance at 5039 Casa Loma Boulevard. The Affiant observed Tuck 

standing in the street talking on the telephone. Tuck was directing a gray 

Cadillac bearing Ohio license plate FXB1430 into the driveway. Continuing 

surveillance, the Affiant watched Tuck enter and exit the residence multiple 

times. Tuck would enter a gray Nissan Altima when exiting the residence. 

This is the same vehicle Tuck was operating on the earlier attempted

controlled buy. Tuck drove off several times in the gray Nissan Altima and 

would quickly return. Throughout the surveillance, the Affiant noticed 

multiple vehicles arrived at 5039 Casa Loma Boulevard. These vehicles 

would only stay for a short period before leaving.

On December 6, 2017, the Affiant conducted surveillance at 5039 Casa 

Loma Boulevard. A known associate and drug trafficker, Pierre Sneed, 

arrived operating a white Acura. Mr. Sneed is a convicted drug trafficker 

and is currently under indictment for drug trafficking and drug possession. 

Cortez Tuck was also present and operating a white Ford Fusion bearing 

New Jersey license plate A22HSW. Cortez Tuck has a previous arrest for 

drug possession. Shortly after, Calvin Tuck arrived in a black Jaguar 

bearing Ohio license plate HFH6643 driven by Daniel Williams. Mr. 

Williams is a convicted drug trafficker and is currently under indictment for 

drug trafficking. All entered the target location. At approximately 1608 

hours, a black Nissan Sentra also arrived and parked in the driveway. The 

driver did not exit the vehicle. Calvin Tuck exited the target residence 

wearing a black t-shirt and red sweat pants. The Affiant observed Calvin 

Tuck grabbing the front part of his sweat pants as if not allowing an object 

to fall from them. Calvin Tuck entered the front passenger side of the 

vehicle. Approximately 2 minutes later Calvin Tuck exited the vehicle and 

walked back inside the target residence. Calvin Tuck was no longer holding 

onto his sweat pants. The Nissan Sentra left the area. Throughout the 

surveillance, Calvin Tuck left multiple times and quickly returned driving the 

same Nissan Altima from the day prior.
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Search Warrant Affidavit, page 4. As stated above, the affidavit reveals that 

Defendant used cell phone number (513)714-6919 in each of the four controlled 

buys throughout November 2017 and early December 2017. Id. at 3. The affidavit 

shows that the November 30, 2017, search warrant confirmed that the cell phone 

operating cell phone number (513)714-6919 was regularly present in the area of 

5039 Casa Loma Boulevard. Id. The affidavit also states that the Affiant personally

saw Defendant enter and exit 5039 Casa Loma Boulevard multiple times on 

December 5, 2017, and December 6, 2017. Id. at 4.

Based on the totality of the circumstances—including but not limited to

(1) Defendant’s detailed and recent criminal history; (2) evidence of four controlled 

buys from Defendant, all within one month of the execution of the search warrant, 

involving two separate reliable confidential informants; (3) the November 30, 2017, 

cell phone report and Defendant’s use of that phone number during each of the 

four controlled buys; and (4) the Affiant’s surveillance described above—the Court 

finds that the affidavit established that there was a fair probability that evidence of 

narcotic crimes would be found at 5039 Casa Loma Boulevard. Taken together, 

Defendant’s criminal history, the use of two reliable confidential informants, 

evidence of four controlled buys, and the details of the Affiant’s surveillance and 

cell phone report, allow the Court to find the requisite nexus between 5039 Casa 

Loma Boulevard and evidence of drug trafficking activity present and that this

nexus is fixed, specific, and concrete. The Court finds the magistrate had probable 

cause to issue the December 8, 2011, search warrant.2

 2 In light of this finding, the Court will not, and need not, address the good faith exception to the exclusionary 

rule found in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L.Ed. 2d 677 (6th Cir. 1984).
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III. CONCLUSION

In accordance with the above, Defendant’s Motion to Suppress Evidence (Doc. 85) 

is DENIED.

IT IS SO ORDERED.

s/ Michael R. Barrett

Michael R. Barrett

United States District Judge