MEMORANDUM OPINION & ORDER
This matter is before the Court upon Defendant Robert A. Wyatt's Motion to Suppress (DN 53). A suppression hearing was held on March 6, 2012. Pursuant to this Court's March 8, 2012 Order (DN 59), Defendant and the government filed briefs on the issue of Defendant's standing to challenge the alleged search (DN 60 and DN 63). This matter is now ripe for adjudication. For the following reasons, Defendant's Motion to Suppress (DN 53) is DENIED.
On August 27, 2010, law enforcement officers executed a search warrant
for the property located at 9823 Brownsford Road in Allen County,
Kentucky. The property is approximately 120 feet by 120 feet, bordered
by a fence on three sides and Brownsford Road on one side. There is a
trailer home and a shop building, or garage, located on the property.
A driveway runs between the two structures. It is now known that this
property is owned by Defendant's father. At the time of the search,
Defendant's girlfriend, Holly Bunch, lived in the trailer.*fn1
It is also now known that Defendant actually resided in a
camper trailer in the backyard of his father's property located at
12383 Brownsford Road, approximately five or six miles from 9823
This Court previously conducted a suppression hearing on April 19, 2011. The facts as known at the time are set forth in the Court's Memorandum Opinion and Order, dated July 29, 2011, denying Defendant's motion to suppress (DN 40). Defendant then filed an additional motion to suppress setting forth newly discovered evidence and additional issues. In this motion to suppress, Wyatt argues that the facts set forth in the Affidavit in support of a search warrant do not indicate a fair probability that evidence of a crime will be located at the premises of 9823 Brownsford Road in Allen County, Kentucky.
I.Testimony at April 19, 2011 Suppression Hearing
In June of 2010, Detective Wimpee received a complaint concerning possible drug activity at 9823 Brownsford Road. This address was supposed to be the residence of an individual named Michael Wright. Based upon this complaint, Detective Wimpee and three other law enforcement officers attempted a "knock and talk" at 9823 Brownsford Road. Upon arriving at the residence, the law enforcement officers located Defendant. Detective Wimpee further testified that Detective Murphy, with the Kentucky State Police, identified Defendant and stated that he had recently gotten out of prison on drug charges. Defendant advised the officers that Mr. Wright had moved. The officers then left to go to Mr. Wright's home, where they performed the knock and talk.
In early August of 2010, the sheriff's hotline received an anonymous tip regarding drug activities at 9823 Brownsford Road. The anonymous caller stated that Defendant had a large methamphetamine cook set up in the garage at 9823 Brownsford Road. The caller also named Brandon Bradshaw, Jeff Pedigo, and Mitch (last name unknown) as being involved with Defendant and the drug activity. On August 4, 2010, the sheriff shared this tip with the local drug enforcement detectives, including Detective Wimpee. The detectives, with Detective Wimpee leading, performed some investigation and surveillance, but were unable to uncover evidence of methamphetamine production. They did, however, notice a vehicle parked at 9823 Brownsford Road whose owner had recently purchased a large but legal amount of pseudoephedrine. Additionally, the detectives also noticed multiple vehicles parked at the premises on some days.*fn2
On August 27, 2010, Detective Wimpee received a call from Detective Travis with the Drug Enforcement Special Investigation Unit of the Kentucky State Police. Detective Travis stated that, while assisting the Barren County, Kentucky drug task force team do a search at a residence involving Brandon Bradshaw, Defendant's name was mentioned.*fn3 A probation and parole officer, Jason Alexander, was also present at this search.*fn4 Later the same day, Detective Travis again called Detective Wimpee and told him that he and "Wyatt's probation officer" were going to attempt a home visit on Defendant at 9823 Brownsford Road.*fn5 Detective Travis was referring to Alexander; however, Alexander was not Defendant's probation officer.
When Detective Travis and Alexander arrived at 9823 Brownsford Road, two young men, Joe Wyatt and Dalton Wyatt, were present and performing yard work. Alexander detained Joe and Dalton Wyatt, asked Joe where Defendant was, and told Joe to call Defendant. Meanwhile, Detective Travis performed a protective sweep to make sure there were no other people at the residence. While performing the sweep, Detective Travis went around the back of the residence and observed items that appeared to be used in the methamphetamine manufacturing process lying in plain view in the back yard.
Detective Travis then called Detective Wimpee to relay his observations. Detective Wimpee thereafter came to the scene. Detective Wimpee testified that, while standing in the driveway, he observed a black trash bag with a Windex bottle sticking out of the end that appeared to be a hydrogen chloride ("HCL") gas generator. He testified that the bottle appeared to be half-full of a white substance and had a green cap with a hole in it. Detective Wimpee testified that, based upon his experience, such devices are associated with the manufacture of methamphetamine. Based upon this observation, Detective Wimpee decided to obtain a search warrant for the property located at 9823 Brownsford Road.
Detective Wimpee, the affiant, alleged that 9823 Brownsford Road was the residence of Defendant Robert Anthony Wyatt on August 27, 2010. He further alleged that there was amphetamine, pseudoephedrine, chemicals and equipment used in the manufacture or trafficking of methamphetamine and other illegal drugs located at 9823 Brownsford Road based on an anonymous tip. Detective Wimpee then alleges that there is probable cause that the property contained evidence of a crime based on the following:
(1) Affiant's seventeen years with the Kentucky State Police;
(2) The August 4, 2010 communication between the affiant and Sheriff Sam Carter, wherein Sheriff Carter stated the following: (a) that he believed Wyatt had a large methamphetamine operation at his residence at 9823 Brownsford Road, (b) that Wyatt was an anhydrous cook, (c) that Jeff Pedigo, Brandon Bradshaw, and Mitch (last name unknown) were helping Wyatt, (d) that they were cooking three to four times a week, and (e) that on July 30, 2010, he had information that there were several guns at the residence along with 2-3 ounces of methamphetamine drying on the table, and cameras located on the property;
(3) An August 9, 2010 communication between the affiant and Detective Travis, wherein they were "trying to identify all the players in this deal;"
(4) An August 12, 2010 drive-by of the residence, which revealed no evidence of illegal activity;
(5) The August 25, 2010 drive-by if the residence, which revealed a vehicle owned by a person who had made a large but legal purchase of pseudoephedrine;
(6) Information received on August 24, 2010, that several vehicles were in and out of the shop on the property all day;
(7) The mention of Wyatt's name during a search of Brandon Bradshaw's residence;
(8) An independent investigation conducted at 10:05 a.m. on August 27, 2010, whereby the affiant drove by the residence and stayed in area for approximately 45 minutes;
(9) A communication from Detective Travis at approximately 12:30 p.m. stating that Detective Travis was with Tony Wyatt's probation officer and that they were on their way to Tony's house for a home visit;
(10) A communication from Detective Travis that there were obvious signs of methamphetamine manufacturing in plain view in the back yard; and
(11) Affiant Wimpee's own observation of a black garbage bag with a HCL generator sticking out of the bag in plain view and battery casings in a trash can.
Based upon this affidavit, a search warrant was issued for the property located at 9823 Brownsford Road.
III.Additional Testimony at March 6, 2012 Hearing
At the March 6, 2012 hearing, evidence was presented that two other law enforcement officers were actually present at 9823 Brownsford Road when Detective Travis and Alexander attempted the home visit. Rusty Anderson and Adam Minor of the Barren County Sheriff's Department arrived at the scene at approximately the same time as Alexander and Detective Travis. Minor testified that he was asked by Detective Travis to assist him with investigating a drug complaint at the property. He testified that neither Detective Travis nor Alexander told him they were at the property for a home visit. Minor testified that, while he was at the scene, he did not walk around the property but observed other officers (more than one) walk around the back of the trailer and knock on the back door. The presence of Minor and Anderson was not mentioned in the affidavit in support of the search warrant. However, Detective Wimpee testified that he was not aware of their presence at the scene and was not aware that Detective Travis did not inform him of their presence.
There was additional testimony presented at the March 6, 2012 hearing that the shop building on the premises of 9823 Brownsford Road was not a business open to the public.*fn6
Detective Wimpee testified that, based on the presence of a vehicle in the garage and the presence of painting materials, the garage appeared to be an automobile body shop. However, Detective Wimpee found no cash register, no check book, no license, no proof of insurance, and no sign indicating that a business was operating on the premises. Joe Wyatt and Defendant both testified that Defendant's father purchased salvaged cars and Defendant worked on the cars in the shop building.
The Fourth Amendment was established to protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. IV. The law does not require that every conceivable explanation other than a suspect's illegal conduct be ruled out in order to find probable cause; "[i]nstead, we need only consider whether there are facts that, given the factual and practical considerations of everyday life, could lead a reasonable person to believe that an illegal act has occurred or is about to occur." United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998) (citations omitted). "To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search." United States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)), cert. denied, 127 S. Ct. 446 (2006). The Court applies a deferential standard of review. See United States v. Leon, 468 U.S. 897, 914 (1984); Massachusetts v. Upton, 466 U.S. 727, 733 (1984). The issuing judge's findings of probable cause should not be set aside unless arbitrarily made. United States v. Brown, 147 F.3d 477, 484 (6th Cir. 1998).
Defendant makes several arguments for suppression, some of which are the same as those previously asserted by Defendant and dismissed by the Court. However, in light of the new evidence presented at the March 6, 2012 suppression hearing, Defendant asks this Court to again consider whether the facts set forth in the affidavit for a search warrant are sufficient to establish probable cause. First, Defendant argues that several false statements contained within the affidavit in support of the search warrant were deliberately or recklessly made. Second, Defendant argues that Alexander did not have reasonable suspicion that Defendant was violating the conditions of his parole and was neither entitled to conduct a search of his residence at 12383 Brownsford Road nor conduct a search of the premises located at 9823 ...