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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 08-20464

DISTRICT JUDGE JULIAN ABELE COOK

v. MAGISTRATE JUDGE STEVEN D. PEPE

AGGREY COOPER,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION DENYING 

DEFENDANT’S MOTION TO SUPPRESS EVIDENCE (DKT. #11)

Defendant Cooper is charged in a four-count Indictment alleging Felon in Possession of a

Firearm, in violation of 18 U.S.C. § 922(g), Possession with Intent to Distribute Cocaine, in

violation of § 841(a)(1), Possession with Intent to Distribute Cocaine Base, in violation of §

841(a)(1) and Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation

of 21 U.S.C. § 924(c).

On December 16, 2008, Defendant moved this Court, pursuant to Fed. R. Crim. P.

12(b)(3) and 41(f), to enter an order suppressing all evidence seized at the residence at *****

Auburn, Detroit, Michigan, pursuant to a search warrant issued April 7, 2008. This motion was

referred for Report and Recommendation pursuant to 28 U.S.C. 636 (b)(1)(B) (Dkt. #17). A

hearing was held on Defendant’s motion on February 6, 2009, at which time all unresolved

issues were heard. For the reasons stated on the record and indicated below, IT IS

RECOMMENDED that Defendant’s motion be DENIED. 

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I. BACKGROUND

On April 7, 2008, Detroit Police officer Kristopher Richardson presented an application

for a search warrant to a Wayne County District Court magistrate. Based on information

obtained from a confidential informant – circumstantially verified as credible by DPO

Richardson’s observations including controlled buys of narcotics by the CI from Defendant on

March 11 and April 4 – Magistrate Robert Costello issued a warrant authorizing the search of

***** Auburn, Detroit, Michigan. On April 8, 2008, Detroit police officers executed the state

search warrant for Defendant's house in Detroit. Detroit police officers recovered, among other

things, eight firearms, powder cocaine, crack cocaine, marijuana, a digital scale and $1,115 cash. 

Defendant’s wife was present at the house when the officers arrived. She waived her Miranda

rights and made a voluntary statement that Defendant sells cocaine from their home, that he had

been doing so for three years, and that the weapons belonged to him. When Defendant returned

home and spoke with police, he too waived his Miranda rights and admitted that he sells cocaine

from their home, that he had been doing so for two years, and that the weapons were his. 

Defendant has a prior felony record.

Defendant was given the opportunity to cooperate, but he failed to respond. No state

charges were brought. Rather, five months later he was charged in a four-count federal

indictment alleging felon in possession of a firearm, possession of cocaine with intent to

distribute, possession of cocaine base with intent to distribute, and possession of a firearm in

furtherance of a drug trafficking crime. Defendant was arrested without incident on October 29,

2008. He again waived his Miranda rights and met with law enforcement in a videotaped

session lasting approximately 70 minutes. He again admitted to selling cocaine and possessing

the firearms.

Defendant now alleges that Officer Richardson’s warrant affidavit failed to set forth facts

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1 United States v. Leon, 468 U.S. 897 (1984)

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establishing a sufficient nexus between the place to be searched and the items to be seized and

was devoid of any attestation as to the reliability or credibility of the confidential informant upon

which the information in the affidavit relies. Because the warrant affidavit allegedly failed to

establish probable cause to believe that the contraband or evidence of a crime would be found at

***** Auburn, Detroit, Michigan, Defendant contends the search conducted pursuant to the

warrant violated his Fourth Amendment right to remain free from search and seizure without

probable cause. Moreover, given the alleged deficiencies in the search warrant affidavit,

Defendant contends that Officer Richardson’s reliance on the warrant was not objectively

reasonable and cannot be considered in good faith or objectively reasonable. As such, Defendant

argues that the Leon1 exception to the exclusionary rule cannot be applied to this case.

II. ANALYSIS

A. Legal Standard

“Probable cause arises if there are ‘reasonable grounds for belief, supported by less than

prima facie proof but more than mere suspicion.’” United States v. Coffee, 434 F.3d 887, 892

(6th Cir. 2006); United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). “[I]n order for a

judicial officer to issue a warrant, law enforcement officials must present evidence from which

the magistrate judge can conclude from the totality of the circumstances, ‘including the

“veracity” and “basis” of knowledge of persons supplying hearsay information, [that] there is a

fair probability that contraband or evidence of a crime will be found in a particular place.’”

United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000) (quoting Illinois v. Gates, 462 U.S.

213, 238 (1983)).

Search warrant affidavits must be judged based on the totality of the circumstances,

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rather than line-by-line scrutiny. See Coffee, 434 F.3d at 892; United States v. Woosley, 361

F.3d 924, 926 (6th Cir. 2004). In this regard, affidavits for search warrants:

Must be tested and interpreted by magistrates and courts in a commonsense and

realistic fashion. They are normally drafted by nonlawyers in the midst and haste of

a criminal investigation. Technical requirements of elaborate specificity once exacted

under common law pleadings have no proper place in this area. A grudging or

negative attitude by reviewing courts toward warrants will tend to discourage police

officers from submitting their evidence to a judicial officer before acting.

United States v. Ventresca, 380 U.S. 102, 108 (1965); United States v. Greene, 250 F.3d 471,

479 (6th Cir. 2001) (“Courts should review the sufficiency of the affidavit in a commonsense,

rather than hypertechnical manner.”).

A magistrate judge’s determination of probable cause should be paid great deference by a

reviewing court. Coffee, 434 F.3d at 892; United States v. Allen, 211 F.3d 970, 973 (6th Cir.

2000). Thus, “an issuing magistrate's discretion should only be reversed if it was arbitrarily

exercised.” Id.

B. Factual Analysis

Defendant essentially argues that Magistrate Castello did not have a substantial basis for

finding that there was probable cause to believe that evidence of Defendant Cooper’s drug

trafficking would be found at XXXXX Auburn (See, e.g., Dkt. #11, p. 7 ) (“Officer

Richardson’s affidavit fails to set forth any information sufficiently linking drug activity to

***** Auburn.”). The following sworn facts, however, establish the nexus between Defendant’s

drug dealing and his residence at XXXXX Auburn:

• the CI informed Officer Richardson that an individual who drives a vehicle

bearing a certain license plate number was a mid level crack dealer in the area of

Freeland and Plymouth Rd. (Dkt. #18, Ex. A, p. 3, ¶1)

• the license plate number the CI provided was for a blue 1992 Cadillac STS,

registered to defendant Cooper at XXXXX Auburn2 (Dkt. #18, p. 1; p. 3, ¶1)

• Officer Richardson showed the CI a photo of Defendant Cooper; the CI confirmed

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that he was the person the CI had referenced (Dkt. #18, Ex. A, p. 3, ¶1)

• police observed Defendant Cooper's Cadillac STS parked at XXXXX Auburn on

March 11 (Dkt. #18, Ex. A, p. 4, ¶2)

• Officer Richardson arranged with the CI and other Detroit police officers for a

controlled buy from the defendant on March 11 (id.)

• Officer Richardson observed defendant Cooper leaving XXXXX Auburn in his

Cadillac STS on March 11 just prior to the first controlled buy (id.)

• Officer Richardson observed defendant Cooper travel directly from XXXXX

Auburn to the meet spot in his Cadillac STS on March 11 (id.)

• Defendant Cooper sold crack cocaine to the CI on March 11 (id.)

• Officer Richardson arranged with the CI and other Detroit police officers for a

controlled buy from the defendant on April 4 (Dkt. #18, Ex. A, p. 4, ¶3)

• Officer M. Bryant observed Defendant's Cadillac STS parked at XXXXX

Auburn on April 4 while Officer Richardson went with the CI to the pre-arranged

meet spot, (id.)

• Officer Bryant observed Defendant Cooper leaving XXXXX Auburn in his

Cadillac STS on April 4 just prior to another controlled buy (id.)

• Officer Bryant observed Defendant Cooper travel directly from XXXXX

Auburn to the meet spot in his Cadillac STS on April 4 (id.)

• Defendant Cooper sold crack cocaine to the CI on April 4 (id.).

In sum, on both March 11 and April 4, the Cadillac STS registered to Defendant Cooper

at XXXXX Auburn was seen parked at XXXXX Auburn and was driven by Defendant when he

went directly from XXXXX Auburn to the meet spot to sell crack cocaine to the CI. Defense

counsel argues that the affidavit supporting the warrant does not clearly indicate that Officer

Richardson actually observed the March 11 and April 4 buys. Yet, the affidavit indicates that

Officer Richardson coordinated with the CI and other Detroit police officers to conduct a

controlled buy. Knowing the standard operating procedures of such controlled buys and the

surveillance protocols police officers routinely utilize, a magistrate could reasonably read the

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 The affidavit states“[t]he target met with the CI on the street and conducted the

transaction.” Although this sentence does not repeat the word “observed,” it can reasonably be

assumed that the transaction was also observed given the order of the sentences in paragraph 2

and because the affidavit clearly states that the target was observed driving directly to the

prearranged meet spot. 

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affidavit of Officer Richardson as indicating: (i.) Officer Richardson observed the Defendant

leave the target residence and observed him proceeding to the meet spot on March 11, and

further observed him make the controlled buy by the CI, without Officer Richardson needing to

repeat that he “observed” the actual buy at the meet spot which he describes2; and similarly ( ii.) 

Officer Bryant observed the Defendant leave the target residence on April 4, and further

observed him driving directly to the meet spot where Officer Richardson and the CI had earlier

arrived, and Officer Richardson observed the CI he accompanied to the meet spot complete the

buy transaction from the Defendant on April 4. While controlled buy transactions inside a

building are often not observed by the officers coordinating the controlled buy, when the meet

spot is outside in the public, it is reasonable to assume that the coordinating law enforcement

officer if he is at the meet spot seeks to observe the actual buy both for the evidentiary purpose

such observations serve as well as for security purposes for the CI were anything to go awry

during the buy itself. The AUSA at the hearing in this case also confirmed that this was the case

in her discussions with Officer Richardson, that he observed both controlled buys. This

confirmation indicates that Officer Richardson also thought his affidavit concerning two

controlled buys was sufficient to indicate that he observed both of the buys. Reading the search

warrant in a “commonsense” and “realistic fashion,” as required by Ventresca and Greene, it is

reasonable to assume both March 11 and April 4 buys were observed. 

Under these circumstances observed by Officers Richardson and Bryant on March 11 and

April 4, there is reasonable grounds to believe that there would be evidence of Defendant

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 Defendant also argues that the search warrant is deficient because the controlled buys

did not take place at XXXXX Auburn (See Dkt. #11, p. 7 ) (“The affidavit does not refer

to any activity indicating that narcotics transactions were taking place at the ‘target location.’”)

As discussed above, Defendant Cooper was seen leaving XXXXX Auburn immediately before

the two controlled buys. But even so, the Sixth Circuit has decided several cases upholding

search warrants for the homes of known drug dealers based on the logical premise that

incriminating evidence is likely to be found at the residences of drug dealers when there is

probable cause to believe that an individual is a drug trafficker. United States v. Kenny, 505

F.3d 458, 461 (6th Cir. 2007) (upholding search of residence based on probable cause that the

defendant was involved in the manufacture of a controlled substance in another location); United

States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004); United States v. Miggins, 302 F.3d 384,

393-94 (6th Cir. 2002) (collecting cases); United States v. Blair, 214 F.3d 690, 696 (6th Cir.

2000) (“‘[i]n the case of drug dealers, evidence is likely to be found where the dealers live’”)

(quoting United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998)).

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Cooper’s drug dealing at his residence at XXXXX Auburn, and probable cause to search that

residence. See United States v. Jones, 105 Fed. Appx. 327, 333 (6th Cir. 2006) (“Furthermore,

and more importantly, the affidavit included details of two controlled drug buys between the CI

and Jones that were arranged by the police, before at least one of which (on June 14, 2002) the

police observed Jones leaving directly from 3288 Niagara, and during both of which the police

noted that Jones drove a vehicle that was described by the CI and that they had seen parked at

3288 Niagara.”).

 Accordingly, the warrant is supported by sufficient probable cause.3

 

III. RECOMMENDATION

It is therefore RECOMMENDED that Defendant’s motion to suppress be DENIED. The

parties to this action may object to and seek review of this Report and Recommendation, but are

required to file any objections within ten (10) days of service of a copy hereof as provided for in

28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard

v. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

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F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others

with specificity, will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Sec’y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed'n of Teachers Local, 231, 829 F.2d 1370,1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20) pages in

length unless by motion and order such page limit is extended by the Court. The response shall

address specifically, and in the same order raised, each issue contained within the objections.

Date: February 23, 2009 s/Steven D. Pepe 

Ann Arbor, Michigan United States Magistrate Judge

Certificate of Service

The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or

parties of record by electronic means or U.S. Mail on February 23, 2009 .

s/Jermaine Creary 

Deputy Clerk

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