United States District Court, E.D. Wisconsin
RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS
NANCY JOSEPH, Magistrate Judge.
On January 5, 2016, a grand jury sitting in the Eastern District of Wisconsin returned a single count indictment against defendant Marquece L. Hart. The indictment charges Hart with being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Jury trial before the Honorable Pamela Pepper is adjourned pending resolution of pretrial motions.
Before me is Hart's motion to suppress evidence obtained pursuant to a state court search warrant executed on a residence located at 10543 West Wabash Avenue on December 8, 2015. Hart argues that the search violated his rights under the Fourth Amendment because the search warrant was not supported by probable cause. For the reasons that follow, I recommend that Hart's motion to suppress be denied.
On December 4, 2015, Milwaukee County Court Commissioner Barry Phillips issued a warrant for 10543 West Wabash Avenue in Milwaukee, Wisconsin. (Gov't Exh. 1, Docket # 23.) The warrant application was supported by the affidavit of Milwaukee Police Detective Chad Vartanian. ( Id. ) Detective Vartanian averred that he was a Deputized Task Force Officer working with the FBI/MPD Regional Gang Task Force. ( Id. ¶ 1.) Detective Vartanian stated that in April 2014, the FBI/MPD Regional Gang Task Force initiated a long term criminal street gang and narcotics conspiracy case into a group of subjects in Milwaukee that identify themselves as "HPT/ATK." ( Id. ¶ 4.) The investigation was ongoing for approximately 14 months and culminated in a grand jury indictment of 21 members of the group on June 2, 2015. ( Id. ) Detective Vartanian stated that several members of the group who were indicted in federal court were offered Proffer Letters by the federal government and agreed to cooperate with law enforcement to further the investigation into the group, with the main goal being to solidify the remaining nine members as co-conspirators in the case. ( Id. ) Detective Vartanian stated that the subjects under Proffer were debriefed at great lengths about their activities-both narcotic and weapons related offenses-and the debriefs were in the presence of law enforcement officers. ( Id. ) The group members under indictment and cooperating are identified as "Sources of Information" or "SOI" in the affidavit. ( Id. ) Detective Vartanian relied upon information from these SOIs in his affidavit. On December 8, 2015, Task Force officers executed the search warrant on 10543 West Wabash Avenue and located two firearms and various cartridges of ammunition.
The court's duty in reviewing a search warrant and its supporting material is limited. The duty of the reviewing court is simply to ensure that the issuing judicial official had a "substantial basis" for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). In determining probable cause, the "task of the issuing magistrate" is "simply to 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." Id. at 238. Probable cause is dependent upon both the content of the information possessed by the police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330 (1990). Both factors-quantity and quality-are considered in the totality of the circumstances. Id. Probable cause is "a fluid concept-turning on the assessment of probabilities in particular factual contexts." Gates, 462 U.S. at 232.
Hart challenges the search warrant on the grounds that it lacked probable cause. He makes three arguments: (1) that the information contained in the affidavit is stale; (2) that the affidavit does not establish the veracity of the referenced informants; and (3) that the affidavit does not connect Hart's residence with the alleged activity asserted in the affidavit. I will address each in turn.
Hart argues that the warrant lacks probable cause because the information in the affidavit is stale. Hart argues that the SOIs provide little, if any, detail into how they have knowledge of Hart's alleged drug trafficking and argues that the information is "considerably dated." (Def.'s Br. at 7, Docket # 18.)
It is true that the age of the information supporting the application for a warrant is a factor that the magistrate judge should consider when determining that there is probable cause to believe that evidence being sought will be found in the place to be searched. United States v. McNeese, 901 F.2d 585, 596-97 (7th Cir. 1990), overruled on other grounds, United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001). If the information is too old, it is considered stale and probable cause no longer exists. Id. at 597. Nevertheless, the warrant can be issued if other factors indicate that the information is reliable and that the object of the search will still be on the premises. Id. Further, "[i]t is well established that the [p]assage of time is less critical when the affidavit refers to facts that indicate ongoing continuous criminal activity.'" United States v. Mitten, 592 F.3d 767, 775 (7th Cir. 2010) (quoting United States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir.1992)); see also McNeese, 901 F.2d at 597 ("[W]hen a conspiracy to distribute drugs has been ongoing for years, and is clearly an activity of a protracted and continuous nature, the passage of time between the last described act and the application for the warrant diminishes in significance.").
The warrant was issued on December 4, 2015. In the warrant affidavit, Detective Vartanian references debriefs of SOIs that took place in August 2014, September 2014, July 2015, August 2015, September 2015, and November 2015. (Gov't Exh. 1 ¶¶ 5-11.) In a debrief taking place on August 19, 2014, the SOI indicated that he/she had purchased crack cocaine from Hart "on numerous occasions." ( Id. ¶ 5.) During the August 28, 2014 debrief, the SOI stated that he/she had never purchased narcotics from Hart, but knew that Hart belonged to the group identified as "HPT/ATK" and that Hart worked to distribute narcotics with three other named subjects. ( Id. ¶ 6.)
During the September 26, 2014 debrief, the SOI indicated that he/she had purchased cocaine from Hart on two separate occasions in May and June of 2014. ( Id. ¶ 7.) During the July 1, 2015 debrief, the SOI stated that he never purchased cocaine from Hart, but knew that Hart was affiliated with "HPT/ATK" and had observed Hart traffic cocaine in Milwaukee. ( Id. ¶ 8.) On August 10, 2015, a SOI indicated that he never purchased cocaine from Hart, but "middled" a cocaine deal for Hart in 2014. ( Id. ¶ 9.) During a debrief on September 29, 2015, the SOI stated that he would "middle" cocaine sales for Hart beginning in 2013 and lasting until the end of 2014. ( Id. ¶ 10.) On November 18, 2015, a SOI stated that that he/she had been in the presence of Hart over 100 times in the past few years, including as recent as the past 30 days, at which time the SOI observed Hart traffic cocaine to customers. ( Id. ¶ 11.) The SOI indicated that Hart was currently trying to put money together to purchase cocaine. ( Id. ) The SOI also indicated that in May or June 2015, Hart received $1, 000 from Anthony Walton to purchase cocaine. ( Id. )
Looking at the totality of the affidavit, the nature of the offense charged-an on-going drug conspiracy-weighs against a finding of staleness. SOIs described "middling" cocaine deals for Hart in 2013 and 2014. ( Id. ¶¶ 9-10.) A SOI indicated that he/she had purchased cocaine from Hart on two separate occasions in May and June of 2014. ( Id. ¶ 7.) A SOI described a drug transaction taking place between Hart and Walton in May or early June of 2015. ( Id. ¶ 11.) Most importantly, although relying solely on these earlier statements would be concerning, the affidavit also contains a recent debrief on November 18, 2015 in which the SOI stated that he/she had observed Hart traffic cocaine to customers as recently as within the past 30 days. ( Id. ) Given the fact that the affidavit indicates an ongoing pattern of ...