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United States v. Frazier

United States District Court, M.D. Tennessee, Nashville Division

October 3, 2019

UNITED STATES OF AMERICA
v.
MICHAEL FORRESTER, JR.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court are Michael Forrester Jr.'s Motions to Suppress evidence obtained from (1) Room 231, 129 Westfield Court, and a 2002 gold Chevrolet Cavalier (Doc. 884); and (2) a red Mazda B3000 bearing Arkansas license plate 411VYD (Doc. No. 885). Having considered the arguments raised in those motions, the Government's response (Doc. No. 951), Forrester's reply (Doc. No. 1005), the oral arguments held on September 12, 2019, and the supplemental briefing (Doc. Nos. 1028 & 1030), the Court will deny both motions.

         I. The Warrant Requirement

         The Fourth Amendment prohibits unreasonable searches and seizures, with “‘the ultimate touchstone [being] reasonableness.'” Kentucky v. King, 563 U.S. 452, 463 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). The Supreme Court has “determined that ‘[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.'” Riley v. California, 134 S.Ct. 2473, 2482 (2014) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)).

         In this case, a search warrant was issued by a federal Magistrate Judge on January 11, 2018 for both Room 231 at the InTown Suites and the Cavalier. A second search warrant was issued by the same Magistrate Judge on January 19, 2018 for the Mazda truck.

         The warrants were based upon almost identical search warrant applications authored by Special Agent Benjamin Colkmire of the Bureau of Alcohol, Tobacco and Firearms. Agent. Based on many of the same allegations, Agent Colkmire also obtained search warrants for three other residences from the Magistrate Judge, all arising out of a larger investigation into the Mongols Motorcycle Club operating out of Clarksville, Tennessee.

         The applications in support of the search warrants were lengthy: the statement in support of the affidavit for the hotel room and the Cavalier was 57-pages long; the statement in support of the search of the Mazda truck was 49-pages long. Length, of course, is generally not dispositive, and the question presented by both Motions to Suppress is whether probable cause existed for either the search of the hotel room or the vehicles.

         To meet the warrant requirement, “a neutral and detached magistrate must independently determine that probable cause exists after weighing the evidence supplied by the police.” Graves v. Mahoning Cty., 831 F.3d 772, 774 (6th Cir. May 2016); see also Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971) (a “neutral and detached magistrate must review a search warrant before it can be executed”). “In determining whether a warrant is supported by probable cause, ‘the courts must . . . insist that the magistrate . . . not serve merely as a rubber stamp for the police.'” United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005) (citation omitted).

         “The standard of review for the sufficiency of an affidavit ‘is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.'” United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). As the Supreme Court has stated, “[t]he 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. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983).

         The circumstances presented first to the Magistrate Judge and now to this Court raise serious questions as to whether there was a fair probability to believe that, in January 2018, evidence regarding Forrester's supposed affiliation with the Mongols (itself not a crime) would be found in either the hotel room or the vehicles, including apparel that might show such affiliation. This is true even under the “flexible all-things-considered approach, ” Florida v. Harris, 568 U.S. 237, 244 (2013), and even considering that “[t]he critical element in a reasonable search is not that the owner of property is suspected of crime but that there is 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).

         The applications set forth detailed allegations establishing probable cause to conclude that, from the spring of 2015 until July 2017, the Clarksville Mongols constituted a RICO enterprise. There was also probable cause to believe that this enterprise engaged in a variety of crimes, including kidnapping, murder, home-invasion robbery, shootings, and drug trafficking. One could also conclude from the applications that Mongols and their prospects socialized with each other, and showed their affiliation to the club by wearing items displaying the Mongols' logo or other insignia.

         Where the applications falter, however, is showing a continuing connection between Forester and the Mongols, and little if any connection between the hotel room or the vehicles to either the Mongols or any crime that they are alleged to have committed. The applications do not suggest that Forrester committed any crimes in the hotel room, or that he used the vehicles to commit crimes. Instead, the few paragraphs in which Forrester is even mentioned show, at best, his connection with the Mongols through July 2017. These are:

(1) Paragraphs 57 and 58, wherein Witness J identified Forrester as (a) being associated with the Clarksville Mongols in the late spring or early summer 2015, and (b) participating in a home invasion robbery in Christina County Kentucky in early July 2015 in order to get money for an upcoming Mongols' rally.
(2) Paragraph 112(h), stating that a photograph posted on Facebook on January 19, 2018 showed Forrester and others ...

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