UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

MAURICE WHETSTONE,

Defendant,

/

Case No. 09-20348 

HON: AVERN COHN

MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

EVIDENCE

I. Introduction

This is a criminal case. Defendant Maurice Whetstone is charged with:

(1) Possession with Intent to Distribute Heroin under 21 U.S.C. § 841(a)(1),

(2) Possession with Intent to Distribute Cocaine Base under 21 U.S.C. 

§ 841(a)(1), and

(3) Felon in Possession of a Firearm under 18 U.S.C. § 992(g)(1).

Now before the Court is Whetstone’s motion to suppress evidence obtained during the

execution of two search warrants that lead to his arrest and indictment. He asserts that the

warrants were obtained in violation of his Fourth Amendment rights because of a lack of

probable cause. Specifically, he asserts that the information provided by a Drug

Enforcement Administration (DEA) agent to a magistrate judge to obtain the warrant failed

to establish a nexus between the alleged criminal activity and the locations that were

searched and was also stale when the warrants were obtained.

The Court held a hearing on this motion on November 9, 2009. At the hearing, the

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 1 of 13 Pg ID 50
1

This phone number was later identified as Whetstone’s cell phone number.

2

government was directed to provide a copy of the DEA agent’s affidavit separately

highlighting the information in the affidavit that supported a finding of probable cause to

search each of the locations. The government complied with the Court’s order and the

motion is now ready for decision. For the reasons that follow, the motion will be denied.

II. Background

On April 19, 2006, a DEA agent obtained search warrants for 5531 Cadillac Avenue,

Detroit, Michigan (5531 Cadillac) and 5059 St. Clair Street, Detroit, Michigan (5059 St.

Clair) based on allegations that each of the two residences contained drugs, drug

paraphernalia, and drug proceeds related to Whetstone’s alleged drug trafficking activities.

A magistrate judge signed both search warrants on the basis of a single affidavit sworn by

Special Agent Ian Ponman (Ponman) of the DEA. 

A. Information Connecting Defendant to Criminal Activity

The affidavit states:

In August, 2005 DEA agents executed a search warrant for the home of Freman

Raychawn Woodward (Woodward), a suspected drug dealer. DEA agents seized several

cell phones, one of which had a phone book entry for “Wet” which contained the number

313-377-5671.1

In September, 2005 a confidential informant (DEA-1) told Ponman that every one

to two months, Whetstone purchased between 100 and 200 grams of heroin from

Woodward.

In November, 2005 DEA-1 provided Ponman with Whetstone’s cell phone number:

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 2 of 13 Pg ID 51
3

313-377-5671. Ponman obtained an administrative subpoena for 313-377-5681 and found

that Whetstone was the subscriber. Further DEA investigation showed that Whetstone’s

cell phone number was connected to more than one dozen active DEA narcotics

investigations.

During a January, 2006 debriefing, DEA-1 told Ponman that Whetstone had

purchased heroin from Woodward in 100-200 gram quantities since the summer of 2004.

He stated that Whetstone had most recently purchased 200 grams of heroin from

Woodward in early December 2005 at a price of $17,000. DEA-1 also described in detail

the manner in which drug transactions between Whetstone and Woodward occurred. A

second confidential informant (DEA-2), corroborated DEA-1's statements by describing in

almost identical terms the manner in which Woodward’s drug transactions occurred. DEA1 told Ponman that Whetstone utilized another individual, Michael Lewis Dixon (Dixon), to

distribute the heroin for him.

DEA-1 also told Ponman that Whetstone had purchased at least 100 grams of heroin

from Terrence Lamar Tyler (Tyler) in September, 2005. Through another confidential

informant (DEA-3), Ponman obtained corroborating statements that implicated Tyler as a

member of a heroin, cocaine, and marijuana trafficking organization.

In a January 18, 2005 interview with Ponman, DEA-1 stated that Whetstone told him

that, on January 14 or 15, Woodward had offered to give Whetstone heroin in exchange

for one of his vehicles. DEA-1 also told Ponman that, on January 15, 2005, Whetstone had

sold heroin near French Road and Gratiot in Detroit because his distributor, Dixon, was out

of town. 

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 3 of 13 Pg ID 52
2

The suspected drug packaging materials were state lottery receipts which were

cut and folded to facilitate the packaging of heroin.

4

B. Information Connecting 5531 Cadillac to Evidence of Criminal Activity

In September, 2005 DEA-1 told Ponman that Whetstone lived at 5531 Cadillac,

Detroit, Michigan. DEA-1 also told Ponman that Whetstone kept heroin and proceeds from

the sale of heroin at 5531 Cadillac. 

In November, 2005 Ponman confirmed that 5531 Cadillac was Whetstone’s address

by matching it to the address listed in his cell phone subscriber information.

In a January, 2006 debriefing, DEA-1 told Ponman that Whetstone stored heroin and

packaging materials/paraphernalia at 5531 Cadillac.

The DEA again corroborated that 5531 Cadillac was Whetstone’s address by

obtaining records showing that he was the electricity subscriber at that residence.

Ponman further corroborated Whetstone’s association with 5531 Cadillac through

surveillance conducted between December 2005 and March 2006. During four separate

surveillance dates, Ponman observed 3 different cars parked at 5531 Cadillac which were

registered to Whetstone. During one of the surveillance dates, Ponman also observed a

car belonging to Janet Marie Howard (Howard) who was investigated by the DEA in a 1996

heroin and cocaine case.

On February 23, 2006, Ponman and an associate conducted a trash pull at 5531

Cadillac. They found marijuana cigarette stubs, mail addressed to Whetstone, a phone

number belonging to an individual who was linked to other individuals in this investigation

as well as two other ongoing criminal narcotics investigations, suspected drug ledgers, and

suspected drug packaging materials.2

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 4 of 13 Pg ID 53
3

One of the cars was registered to Whetstone’s brother; it was in the constructive

possession of Whetstone and utilized solely by him.

5

C. Information Connecting 5059 St. Clair to Evidence of Criminal Activity

In September, 2005 DEA-1 told Ponman that Whetstone’s girlfriend lived at 5059

St. Clair and that Whetstone occasionally stayed at that address. DEA-1 also told Ponman

that Whetstone kept heroin and proceeds from the sale of heroin at 5059 St. Clair.

In a January, 2006 debriefing, DEA-1 told Ponman that Whetstone stored drug

proceeds and documents at 5059 St. Clair. 

The DEA corroborated Whetstone’s association with 5059 St. Clair by obtaining

records showing that his girlfriend was the electricity subscriber at that residence.

Ponman further corroborated Whetstone’s association with 5059 St. Clair through

surveillance conducted between December 2005 and March 2006. During six separate

surveillance dates, Ponman observed two cars parked at 5059 St. Clair which were

registered to Whetstone or otherwise associated with him.3

 

D. Additional Statements in Affidavit

Ponman stated that in the past DEA-1 had provided accurate and reliable

information related to numerous large-scale heroin, marijuana, and cocaine dealers in the

Detroit area. He made similar statements concerning the reliability of DEA-2 and DEA-3.

Ponman also stated that, based upon his training and experience and information

received from other experienced DEA agents, he knew “that it is common for drug dealers

to secret illegal narcotics, narcotic proceeds, and records of drug transactions or financial

transactions in secure locations within their residence(s) for ready access and to conceal

them from law enforcement authorities.”

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 5 of 13 Pg ID 54
6

III. Analysis

A. The Standard

The Fourth Amendment guarantees that “no Warrant shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. CONST. amend. IV. In Illinois v.

Gates, 462 U.S. 213, 232 (1983), the Supreme Court explained the probable cause is a

“fluid concept – turning on the assessment of probabilities in particular factual contexts

– not readily, or even usefully, reduced to a neat set of legal rules.” Accordingly, the

Supreme Court in Gates rejected previous, more rigid tests in favor of the “totality-ofthe-circumstances” test. Id. at 238. When faced with an application and affidavit for a

search warrant, “the task of the issuing magistrate judge is simply to make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Id.

When a search warrant is sought, probable cause requires “a nexus between the

place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d

591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d

331, 336-37 (6th Cir. 1998)). In other words, there must be “reasonable cause to

believe that the specific ‘things’ to be searched for and seized are located on the

property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). 

In addition, probable cause must exist at the moment that the warrant is issued and the

evidence supporting it cannot be stale. Sgro v. United States, 287 U.S. 206, 210

(1932). There is no fixed time limit regarding the staleness of evidence and a court

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 6 of 13 Pg ID 55
7

must consider the following variables: “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?), the

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

base?), etc.” United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998). 

Generally, a magistrate judge’s determination as to probable cause is entitled to

deference by the reviewing court. Id. at 238-39. The reviewing court’s role is limited to

deciding “whether the evidence as a whole provided a ‘substantial basis’ for the

Magistrate’s finding of probable cause.” Id.; Massachusetts v. Upton, 466 U.S. 272, 733

(1984).

B. Arguments

1.

Whetstone asserts that there was not probable cause to sign the search warrants

because the government failed to demonstrate a nexus between either of the locations and

evidence of criminal activity. He further asserts that, even if the information in Ponman’s

affidavit did provide probable cause when it was gathered, it had become stale by the time

the warrants were signed and was no longer sufficient to support the warrants.

Whetstone asserts that Ponman’s affidavit did not establish a sufficient nexus to

suggest that evidence of criminal activity would be found at either 5531 Cadillac or 5059

St. Clair. He asserts that the evidence obtained from sources other than DEA-1 merely

establish that Whetstone resided at 5531 Cadillac and frequented 5059 St. Clair. The utility

records, phone records, and surveillance information, standing alone do not suggest that

evidence of criminal activity would be found. Further, Whetstone argues that, despite

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 7 of 13 Pg ID 56
4

 Whetstone asserts that the affidavit merely contains conclusory statements

regarding drug ledgers and packaging material and does not provide sufficient detail

support for the conclusions expressed. He also asserts that the marijuana cigarette

butts suggest personal drug use, not drug trafficking. 

8

repeated surveillance activity, the DEA did not observe anything suggesting that criminal

activity was occurring at either address. While the trash pull at 5531 Cadillac suggested

that evidence of drug trafficking could be present, Whetstone asserts that Ponman’s

affidavit did not provide sufficient detail regarding what was found.4

 The only information

in the affidavit suggesting that evidence of drug trafficking would be found at the addresses

were the statements of DEA-1. Whetstone asserts that this information is not reliable

because the affidavit does not include any assertion that DEA-1 personally observed

evidence of criminal activities at these residences and does not otherwise provide the basis

for DEA-1's knowledge. 

Whetstone also asserts that any information that may have supported probable

cause had become stale before the warrants were signed. He notes that the last contact

between DEA-1 and Ponman occurred on January 18, 2009 – three months before the

warrants were sought and obtained. In addition, the last arguably relevant information –

the trash pull at 5531 Cadillac – occurred approximately two months before the warrant

for that address was obtained. Finally, the last investigative activity of any kind – the

surveillance of 5059 St. Clair – occurred on March 22, 2006, nearly a month before the

warrant for that address was sought. 

Whetstone does not appear to challenge that there was probable cause to believe

that he was involved in drug trafficking or distribution. He is challenging whether there was

probable cause to believe that evidence of drug trafficking would be found at either of the

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 8 of 13 Pg ID 57
9

addresses. He claims that there was an insufficient nexus, at the time the warrants were

signed, to suggest that evidence of criminal activity would be found at either address. 

2.

The government asserts that the affidavit included sufficient information to establish

probable cause that Whetstone was involved in drug trafficking and that evidence of this

criminal activity would be found at both 5531 Cadillac and 5059 St. Clair.

The government first asserts that Ponman’s affidavit provided probable cause to

believe that Whetstone was involved in drug trafficking. DEA-1's statements provide the

basis for this assertion. DEA-1 provided Ponman with detailed information of the dates,

frequencies, and quantities of heroin allegedly purchased by Whetstone from Woodward

and Terry. He also provided Ponman with details of how Whetstone packaged the heroin

and sold it through his associate, Dixon. The DEA was able to corroborate DEA-1's

information based on the statements made by DEA-2 and -3 regarding the activities of

Whetstone’s suppliers and through cell phone records that tied Whetstone’s cell phone to

Woodward and to several other ongoing DEA narcotics investigations. In addition, Ponman

stated that all of the DEA’s confidential informants had a history of providing accurate and

reliable information to the DEA.

The government also asserts that there is sufficient information in the affidavit to link

Whetstone to each residence. In addition to DEA-1's statements, the government identified

utility bills and cell phone subscription information establishing Whetstone’s residence at

5531 Cadillac and his girlfriend’s residence at 5059 St. Clair. The DEA’s surveillance

activities also identified the presence of vehicles registered to Whetstone at each

residence. Taken together, this evidence suggests that Whetstone maintained at least a

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 9 of 13 Pg ID 58
10

part-time residence at each location.

Finally, the government asserts that there was probable cause to believe that

Whetstone would keep evidence of his drug trafficking activities at each house. DEA-1 told

Ponman on two separate occasions that Whetstone kept such evidence at each residence.

In addition, the government argues that, based on the experience and training of its agents,

it is reasonable to believe that an individual involved in drug trafficking would keep evidence

of drug trafficking at his or her residence.

Thus the government claims that there was probable cause to believe that

Whetstone was involved in drug trafficking and that he resided at both 5531 Cadillac and

5059 St. Clair. Accordingly, in light of the experience of DEA agents and DEA-1's

statements, it was reasonable for then to believe that Whetstone would keep evidence of

his drug trafficking at these residences.

3.

Although the government has provided virtually no direct evidence to suggest that

drugs, drug paraphernalia, drug proceeds, or any other evidence of drug distribution crimes

would be found at either 5531 Cadillac or 5059 St. Clair, the affidavit did provide a sufficient

basis for a finding of probable cause to search each address.

The government is correct to assert that Ponman’s affidavit provided probable cause

to believe that Whetstone was involved in drug trafficking and resided at both 5531 Cadillac

and 5059 St. Clair. DEA-1's statements regarding Whetstone’s drug trafficking activities,

if taken as true, provide ample evidence to support probable cause. Ponman stated that

the confidential informants implicating Whetstone in drug trafficking, including DEA-1, were

accurate and reliable. In addition, the myriad connections between Whetstone’s cell phone

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 10 of 13 Pg ID 59
11

and ongoing drug investigations corroborated DEA-1's statements. The government’s

surveillance of both residences, as well as the record searches of utility bills and cell phone

subscriptions also established that Whetstone maintained at least a part-time residence at

each address.

However, the question is whether there was probable cause to believe that evidence

of Whetstone’s drug trafficking would be found at the addresses which were searched.

Ponman stated in his affidavit that, based on his experience and training, drug traffickers

kept evidence of their criminal activity at their residences. Therefore, it would also be

reasonable to assume that Whetstone would do the same. The Sixth Circuit has upheld

search warrants on the ground that drug traffickers are likely to keep evidence of their

criminal activity at their residence, even when there is no independent evidence suggesting

that criminal contraband will be found. United States v. Newton, 389 F.3d 361, 365-66 (6th

Cir. 2004), rev’d on other grounds Newton v. United States, 546 U.S. 803 (2005); United

States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002). Thus there was probable cause

to believe that evidence of criminal activity was present at each residence based on

Ponman’s statement alone. The fact that DEA-1 also asserted that Whetstone kept drugs,

drug paraphernalia, and drug proceeds at each residence further supports a finding of

probable cause. 

The information contained in the agent’s affidavit was also sufficiently “fresh” to

establish probable cause to conduct a search at the time it was issued. The DEA’s

investigation of Whetstone, as described in the affidavit, occurred sporadically over the

course of several months. It involved frequent, although not daily activity directed toward

Whetstone and much of the key information included in the affidavit was several months

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 11 of 13 Pg ID 60
12

old. Still, given the nature of the alleged crimes, this information was sufficiently fresh to

support a finding of probable cause under the factors included in Spikes. First, this was an

ongoing criminal enterprise, not an isolated criminal event. Spikes, 158 F.3d at 923.

Whetstone allegedly purchased substantial amounts of heroin every one to two months

over the eighteen months prior to Ponman’s last conversation with DEA-1. Although that

conversation occurred three months before the warrant was signed, there was no reason

to believe that the allegedly ongoing criminal enterprise had ceased. Second, Whetstone

appeared to be entrenched at both addresses. Id. Although Ponman’s surveillance had

ended a month before the warrant was signed and occurred over a period of only two

months, the utility records gathered by the DEA showed that Whetstone has resided at

5531 Cadillac for more than ten years and that his girlfriend has resided at 5059 St. Clair

for nearly three years. Since both locations were long-term residences, it was reasonable

to assume that Whetstone still frequented both locations. Although the drugs, proceeds,

and paraphernalia might be considered to be perishable or easily transferred, Id., the DEA

believed that there was an ongoing criminal enterprise. Even if the exact drugs, proceeds,

and packaging materials mentioned by DEA-1 were no longer present, it was reasonable

to believe that they were replaced by other drugs, proceeds, and packaging materials

through the alleged ongoing drug trafficking enterprise. Finally, the places searched were

the residences of Whetstone and his girlfriend and were places where he resided on a

regular basis. As a result they should be considered secure operational bases and not

merely criminal forums of convenience. Id. Thus all four of the factors listed in Spikes

suggest that the information included in the affidavit was of enduring quality. A gap of only

a few months was not enough to make the information stale.

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 12 of 13 Pg ID 61
13

Thus the information provided in Ponman’s affidavit contained probable cause to

believe that Whetstone was engaged in drug trafficking and that he resided at 5531

Cadillac and at 5059 St. Clair. There was also a sufficient nexus to believe that evidence

of Whetstone’s criminal activity would be found at each location and the evidence was of

an enduring quality and had not become stale.

Conclusion

For the reasons stated above, Whetstone’s motion to suppress the evidence of the

search warrants executed at 5531 Cadillac and 5059 St. Clair is DENIED. 

SO ORDERED

 s/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: November 25, 2009

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, November 25, 2009, by electronic and/or ordinary mail.

 s/LaShawn R. Saulsberry 

Case Manager, (313) 234-5160

2:09-cr-20348-AC-MAR Doc # 20 Filed 11/25/09 Pg 13 of 13 Pg ID 62