United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on Defendant Reynaldo Hernandez's Motion to Suppress [DN 29]. The Defendant filed a post-hearing brief in support of his motion. The United States failed to file a timely response. Thus, this matter is ripe for decision.
This case arises out of the arrest of Reynaldo Hernandez following a controlled delivery of two FedEx packages. Law enforcement officers from the Russell Springs Police Department and the U.S. Drug Enforcement Administration conducted the joint operation after FedEx contacted the DEA and informed them that FedEx suspected two packages scheduled to be delivered to 2075 Lakeway Drive, Russell Springs, Kentucky contained marijuana.
On March 28, 2013, members of the joint operation established surveillance around 2075 Lakeway Drive in order to observe the delivery of the packages. Posing as a FedEx employee, Officer Chastity Shirley of the Russell Springs Police Department delivered the parcels addressed to Javier Rios to Defendant's residence. A female, identified later as Martha Barrios, answered the door. When Officer Shirley asked for Javier Rios, the female indicated that he was in the shower. Defendant then arrived at the door and said that Javier Rios was not present in the house at that time. Officer Shirley then asked the Defendant if he would sign for the packages and he said, "No problem."
The officers observed Defendant take the packages into his house, and then Defendant and Martha Barrios carried the packages to a shed located on an adjacent property. After securing the packages on the adjacent property, law enforcement officers approached Defendant's house in order to gain consent to search his property. Initially, Defendant consented to a search, but he then changed his mind which prompted Officer Shirley to draft an affidavit at the County Attorney's Office for the purposes of obtaining a search warrant. Officer Shirley submitted the following affidavit for the search of 2075 Lakeway Drive:
Affiant was contacted by DEA Special Agent Greg Bunch who stated FedEx contacted the DEA London Resident Office concerning two packages they (FedEx) had located that contained marijuana. SA Bunch responded to the London, Kentucky FedEx packaging facility and confirmed that the two packages contained marijuana. SA Bunch further noticed the packages were to be delivered to 2075 Lakeway Drive, Russell Springs, KY 42642. This address also known as 2075 Highway 3017, Russell Springs, KY. SA Bunch then took possession of the packages and contacted Russell Springs Police Chief Joe Irvin and RSPD Officer Chasity Shirley. SA Bunch notified Chief Irvin and Officer Shirley that parcels were scheduled to be delivered on March 28, 2013. Chief Irvin then instructed SA Bunch that his department would make a Controlled Delivery of the parcels. SA Bunch then transported the parcels to Russell County Kentucky and released custody of the parcels to Officer Shirley.
On March 28, 2013 at approximately 1442 hours, affiant delivered the parcels to 2075 Lakeway Drive in Russell Springs, Kentucky, also known as 2075 Highway 3017, Russell Springs, Kentucky. During the delivery at said residence, a female hispanic stated "no english" and affiant asked for Javier and female hispanic responded, "shower" and then a hispanic male at residence was asked if Javier was there and said male said "no, " then affiant asked if this was 2075 Lakeway Drive and the male said "yes." Affiant then asked the male if he wanted to sign for the packages. Male said "no problem". Hispanic male signed for the parcels and signed his name Adan Nunez and said hispanic male pick up parcels and took them in the residence.
(Gov't Ex. 2, Search Warrant). Based on the affidavit, a search warrant was granted.
Defendant argues that all evidence seized in the subsequent search of Defendant's home should be suppressed as fruits from an illegal search. First, Defendant contends that police made false statements in order to obtain a warrant to search his home. As result of these false statements, Defendant argues that the police lacked sufficient probable cause to obtain the search warrant. Second, Defendant argues that police violated his Fourth Amendment rights by observing him in a place where he had a reasonable expectation of privacy.
A. Franks Hearing
The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. CONST. amend. IV. "When probable cause is required, it is an obvious assumption that there will be a truthful showing of probable cause." United States v. Witherspoon, 2010 WL 724663, *2 (W.D. Ky. Feb. 25, 2010) (citing Franks v. Delaware , 438 U.S. 154 (1978)). In challenging the veracity of statements contained in the affidavit, the Defendant must prove by a preponderance of the evidence that "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks , 438 U.S. at 155-56. "If this is established by the defendant, then the false material must be set aside in determining whether the remaining content is sufficient to establish probable cause." Witherspoon, 2010 WL 724663, *2 (citing Franks , 438 U.S. at 156.). If the remaining material is insufficient to establish probable cause, the search warrant must be voided and the evidence obtained as a result of the search excluded as if probable cause was lacking on the face of the warrant." Id.
On November 25, 2013, the Court held a hearing to determine the truthfulness of the statements made in the affidavit used to obtain a search warrant. Defendant fails to identify any factual statement made in the affidavit that would be considered a false statement for the purposes of Franks. Defendant argues that the affidavit is deficient in connecting Javier Rios with Defendant. However, as apparent from the language of the affidavit, there are no statements to indicate that police officers attempted to mislead a court into believing the person who signed for the package, the Defendant, and the name on the label, Javier Rios, were necessarily the same individual. Defendant's contention appears to be more suited for an argument against ...