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United States v. Nasir

United States District Court, D. Delaware

March 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MALIK NASIR, Defendant.

          David C. Weiss, Acting United States Attorney, and Daniel E. Logan, Jr., Assistant United States Attorney, U.S. DEPARTMENT OF JUSTICE, Wilmington, DE Attorneys for Plaintiff

          James F. Brose, BROSE LAW FIRM, Media, PA Attorney for Defendant

          MEMORANDUM OPINION

          STARK U.S. District Judge

         On February 23, 2016, a federal grand jury indicted defendant Malik Nasir ("Defendant" or "Nasir") on three counts, relating to drug distribution and unlawful possession of a firearm. (D.I. 1) On July 21, 2016, Nasir filed a motion to suppress evidence. (D.I. 28) The Court held an evidentiary hearing on September 7, 2016. (See D.I. 38 ("Tr.")) Nasir then filed a motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978). (D.I. 35) The Court denied Nasir's Franks motion (D.I. 46) and allowed the government to supplement the evidentiary record at a second hearing, held on December 21, 2016 (see D.I. 52 ("Dec. Tr.")). The parties then briefed Nasir's suppression motion (see D.I. 51, D.I. 53, D.I. 54), which the Court now resolves.

         I. BACKGROUND

         On March 10, 2015, defendant Malik Nasir leased a 5x5 foot unit at Liberto Mini Storage in Dover, Delaware. (See D.I. 35 at 7 of 7 ("Rental Agreement")) The Rental Agreement gave Nasir use of "Space No. C43, " subject to certain terms and conditions. (Id.)

         Around nine months later, on December 21, 2015, the Liberto facility's owner made a phone call to Delaware State Police (DSP) Troop Number 3. During over-the-phone and in-person conversations with DSP Sergeant Lance Skinner, the facility owner complained of possibly suspicious and potentially illegal activity being carried out of unit C69, prompting DSP to investigate. (See, e.g., Tr. at 5, 7) The tenant leasing unit C69 was apparently accessing his space up to five times daily, in different vehicles, and would enter his small 5x5 unit, close the door behind him for a short time, reemerge, and leave the facility. (Id. at 8, 66) The facility owner had taken a photo showing that inside the unit were two large coolers, two closed buckets, a box of baggies, something that looked like a duffel bag, and a can of something. (Id. at 10)

         The facility owner told Skinner that unit C69 belonged to Malik Nasir, and provided Skinner with the Rental Agreement and a photocopy of Nasir's driver's license. (Id. at 11) DSP officers did not notice the discrepancy between the unit number on the Rental Agreement, C43, and the storage owner's statements about unit C69, and so did not press for an explanation. (See Dec. Tr. at 8-9)

         DSP then ran a criminal history check and learned that Nasir had felony drug convictions on his record. (Tr. at 13) Later that evening, DSP officers returned to the facility with Detective Donaldson and a trained and certified narcotics detection dog named Ripper. (Id. at 15; see also D.I. 30-1 ("Warrant Affidavit") at 5-6) Ripper "positively alerted to the odor of narcotics emanating from" unit C69. (Warrant Aff. at 6; see also Tr. at 16)

         Next, DSP detectives applied for a search warrant for unit C69 from the Justice of the Peace Court. (See generally Warrant Aff.) In the meantime, while other DSP officers remained at the storage facility "holding" the unit, a DSP detective monitoring Nasir's home saw Nasir place a large black bag in the cargo area of a Mercury Mariner SUV. (Tr. at 26) Nasir then got into the Mariner SUV, which was registered in Nasir's name, and drove it directly to the storage facility. (Id.) As Nasir drove into the lane in which unit C69 was located, DSP officers stopped his vehicle, handcuffed him, and put him in the back of a patrol car. (See Id. at 29-30) Skinner testified this was done "as soon as [the driver] committed to the area of where it would lead [the driver] to C69" (id. at 28), and that it was done for the purpose of preventing Nasir from "compromising]" execution of the search warrant (id. at 30), the application for which was then pending before a judge. A search of the Mariner recovered a key to unit C69 and a "duffle bag" with "marijuana residue." (Id. at 32)

         When the search warrant was issued and executed that same night, officers found that unit C69 contained in excess of 3 kilograms of marijuana, as well as scales and packaging materials. After a separate search warrant was issued, officers searched a Dodge Charger registered in Nasir's name and parked outside his home; they found that this vehicle contained $5, 000 in a grocery bag and several handguns with ammunition. (Id. at 37, 39)

         With his motion to suppress, Nasir urges the Court to "exclude all evidence gathered in this case." (D.I. 51 at 9)

         II. LEGAL STANDARDS

         The United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This Fourth Amendment right "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. Accordingly, probable cause is the "threshold requirement for issuance of a warrant." United States v. Ritter,416 F.3d 256, 262 (3d Cir. 2005). A search and ...


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