S.D.Ohio: Affidavit for SW judicially estopped govt to claim no standing

The affidavit for the search warrant alleged the house was defendant’s house. The government was judicially estopped from claiming otherwise in the proceeding without real evidence the affidavit was wrong. [I’ve been arguing this for years; see Treatise § 4.03.] Moreover, defendant’s guilty plea in state court on the same affidavit for the search warrant after a motion to suppress was filed and abandoned was not collateral estoppel because there was final resolution on the merits. United States v. Black, 2018 U.S. Dist. LEXIS 24199 (S.D. Ohio Feb. 14, 2018):

Although not the target of the warrant, Defendant was mentioned several times throughout four discrete paragraphs in Officer Maloney’s supporting affidavit. For example, she states that, on November 11, 2015, a source of information to Task Force Officer Stratmann referred to Defendant as the “leader” of FDD and the “weed man” in the West End neighborhood of Cincinnati who would sell “ounces to pounds” of marijuana. (Id. at PageID 464.) Also according to Officer Maloney, “TFO Stratmann identified 1821 Tuxworth Avenue as an address associated with Jerry BLACK and other members of FDD.” (Id. (emphasis added).) Continuing, she testified:

On February 19, 2016 officers executed a search warrant at the residence of Jerry BLACK at 1821 Tuxworth Ave #1. During the search of the residence officers recovered approximately 49,700 grams of marijuana in the basement, $142,210 in the master bedroom closet, and 3 handguns in the master bedroom closet. Jerry BLACK told officers that FDD was not a gang. BLACK stated that FDD was a record label with artists all throughout Cincinnati and he was the CEO. Jerry BLACK pled guilty to Trafficking in Marijuana and Having Weapons Under Disability and was sentenced to the Ohio Department of Corrections. Your Affiant learned that FDD members continue to be involved in illegal activities to include drug trafficking throughout the city.

(Id. at PageID 464-65 (emphasis added).) The position taken by Officer Maloney in support of the Maybridge warrant—Tuxworth Avenue is Jerry Black’s residence—is “clearly inconsistent” with the position now taken by the Government—Tuxworth Avenue is not Jerry Black’s residence—in response to Defendant’s Motion to Suppress. (Doc. 123 at PageID 459.) This contradiction unfairly advantages the Government, and is a “perversion” of the judicial process. (Id. at PageID 458-59.) Accordingly, Defendant urges the Court to exercise its discretion, apply the doctrine of judicial estoppel, and prohibit the Government from arguing that he lacks standing to challenge the Tuxworth Avenue search warrant. (Id. at PageID 459-60.)


A. The Government may not contest Defendant’s standing to challenge the Tuxworth Avenue search warrant.

The Court concludes that application of the doctrine of “judicial estoppel” is appropriate here, which, in turn, necessitates a finding that the Government may not contest Defendant’s standing to challenge the Tuxworth Avenue search warrant.

“The doctrine of judicial estoppel applies to a party who has successfully and unequivocally asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in a subsequent proceeding.” Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982). It may be applied “even if detrimental reliance or privity does not exist” because it “is intended to protect the integrity of the judicial process.” Id. “Judicial estoppel addresses the incongruity of allowing a party to assert a position in one tribunal and the opposite in another tribunal. If the second tribunal adopted the party’s inconsistent position, then at least one court has probably been misled.” Id.

. . .

Defendant correctly states that two of these three factors are present in this case. The Government’s position as to whether Mr. Black resides at Tuxworth Avenue has done an unmistakable about-face. On May 20, 2017, Officer Maloney swore to Magistrate Judge Greenberg that Defendant lived there, but beginning on October 16, 2017, with the filing of the Government’s memorandum in opposition to Defendant’s Motion to Suppress made in this criminal proceeding, the United States Attorney took the position that Defendant had no “previous relationship with the residence” and there was no “indicia of acceptance into the household.” (Doc. 99 at PageID 267; see Doc. 124 at PageID 490.) This turnaround, moreover, spawned both an “unfair advantage” for the Government and an “unfair detriment” against Defendant. Had the Government not argued that Defendant lacked standing to challenge the constitutionality of the Tuxworth Avenue search warrant, Juanda Bankhead’s testimony—credible or not—would have been unnecessary. Argument instead would have focused on whether Defendant is collaterally estopped from challenging the search warrant, and, if not, whether the warrant is constitutionally sufficient. As discussed below, neither of these arguments ultimately resolve in the Government’s favor.

In the Court’s view, the “balance of equities” tips toward estoppel. See New Hampshire, 532 U.S. at 751. The Mayridge Court affidavit was made on May 20, 2017 by the same Cincinnati Police Officer investigating the same drug trafficking conspiracy. In it, she includes investigation details uncovered by TFO Stratmann who, for the November-December 2015 time period, identified Tuxworth Avenue as an address “associated with” Defendant, in addition to her own recitation that the search warrant at issue was executed “at the residence of Jerry BLACK.” As of May 20, 2017, therefore, the date the Mayridge Court affidavit was made, the Government declared under oath that 1821 Tuxworth Avenue, #1 was Defendant’s residence. The Government downplays this reference, insisting it had no “significant bearing” on the probable cause assessment made by Magistrate Judge Greenberg in issuing the warrant for Mayridge Court. (Doc. 124 at PageID 490.) The Court disagrees. Officer Maloney applied for a warrant to search not only the Mayridge Court property, but also the body of co-Defendant Washington within, whom she suspected of drug possession, drug trafficking, participating in a criminal gang, and felonious assault. (Doc. 123-1 at PageID 462-63.) Evidence that nearly 50,000 grams (in excess of 100 pounds) of marijuana, $142,210 in cash, and three handguns were found at the residence of Defendant, the alleged leader of the gang under investigation, most certainly had to play some part in the “totality-of-the-circumstances” analysis required by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

All these factors prompt the Court to decide that judicial estoppel bars the Government from arguing that Defendant lacks standing to contest the Tuxworth Avenue search warrant. The Court’s prior Order (Doc. 115), therefore, is VACATED. We now must consider the Government’s alternate contention, whether Mr. Black’s previous guilty plea in the state criminal proceeding acts as a waiver against collateral attack of the warrant in this federal prosecution.

B. Defendant’s guilty plea in the state criminal proceeding does not bar him from challenging the constitutionality of the search warrant in this federal prosecution.

. . .

Defendant, on the other hand, cites Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983). While not precisely on point, Haring is sufficiently instructive to resolve the estoppel question raised by the Government. John Franklin Prosise pleaded guilty in state court to one count of manufacturing phencyclidine (“PCP”). Id. at 308. While incarcerated, he filed a pro se civil action under 42 U.S.C. § 1983, claiming that state officers unlawfully searched his apartment in violation of the Fourth Amendment. Id. at 309. The district court granted summary judgment for the officers, reasoning that Prosise’s failure to assert his Fourth Amendment claims in state court “constituted a waiver of that right precluding its assertion in any subsequent proceeding.” Id. (emphasis added). The Court of Appeals reversed and remanded, and the matter made its way to the Supreme Court, which decided that his conviction in state court following his guilty plea did not bar a § 1983 action for an alleged constitutional violation “that was never considered in the state proceedings.” Id. at 311, 322. The Court outright rejected the contention by the officers that “by pleading guilty Prosise should be deemed to have either admitted the legality of the search or waived any Fourth Amendment claim, thereby precluding him from asserting that claim in any subsequent suit.” Id. at 318. Prosise made “no concession” as to whether the search of his apartment was proper under the Fourth Amendment, and none should be inferred. Id. It is “impermissible” to assume that a plea of guilty is grounded in a defendant’s determination that “he would be unable to prevail on a motion to suppress evidence.” Id. “[A] defendant’s decision to plead guilty may have any number of other motivations.” Id. (citing Tollett v. Henderson, 411 U.S. 258, 262-63, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973) (citing Brady v. United States, 397 U.S. 742, 750, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970))). Elaborating on the concept of waiver, the Court observed:

Under our past decisions, as the District Court correctly recognized, a guilty plea results in the defendant’s loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment. It does not follow, however, that a guilty plea is a “waiver” of antecedent Fourth Amendment claims that may be given effect outside the confines of the criminal proceeding. The Defendant’s rights under the Fourth Amendment are not among the trial rights that he necessarily waives when he knowingly and voluntarily pleads guilty.

Id. at 320-21.

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