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United States v. Brummett

United States District Court, E.D. Kentucky, Central Division, Lexington

May 2, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVEY WAYNE BRUMMETT, Defendant.

RECOMMENDED DISPOSITION [1]

ROBERT E. WIER, Magistrate Judge.

The Court assesses a motion to suppress filed by Defendant, Davey Wayne Brummett. DE #34 (Motion). Brummett faces felon-in-possession and possession of an unregistered firearm charges related to alleged conduct in Lincoln County on May 9, 2013. DE #18 (Superseding Indictment). Additionally, he faces one count of theft of Social Security Administration funds from on or about October 1, 2010 to October 31, 2013, also in Lincoln County. Id. The suppression motion targets execution of two state search warrants. Defendant first challenges the execution of a warrant at his residence on May 9, 2013. His second challenge relates to a May 14, 2013 vehicle search. As to the May 9 search, Brummett contends that the search warrant affidavit lacked sufficient information to support a probable cause finding. DE #34-1 at 3-9 (Memorandum). He further argues that the good faith exception to the exclusionary rule articulated by the Supreme Court in United States v. Leon, 104 S.Ct. 3405 (1984), does not apply. DE #34-1 (Memorandum) at 7. As to the May 14 search, although not criticizing the warrant itself, Brummett alleges that officers seized him and forcibly returned his truck onto the property for purposes of warrant execution. Alternatively, he asserts that he parked the subject truck on his neighbor's property, not his own, and that the truck was thus not within the scope of the warrant. Finally, Movant alleges that officers did not otherwise have a valid basis to search the vehicle. Id. at 10-11.

The United States filed a response in opposition, DE #38 (Response), and Defendant replied. DE #39 (Reply). The Court conducted an evidentiary hearing on March 18, 2014, with respect to Defendant's argument about the May 14 warrant. Because the challenge to the May 9 warrant calls only for four corners review of the warrant documents, the Court did not take proof on the issue but heard argument from the parties.[2]

The Court recommends DENIAL of the motion to suppress. A substantial basis supported warrant issuance on May 9, 2013, and, in any event, the exclusionary rule does not here apply under current standards. As to the May 14, 2013 warrant, the Court finds that Defendant volitionally returned his vehicle to an area within the physical scope of the warrant and that police acted reasonably. There is no justification here for suppression.

I. Background

On May 9, 2013, Kentucky State Police (KSP) Detective Rodney Wren responded to an alleged shooting at 919 Simpson Road in Lincoln County. Upon arrival, Detective Wren learned that Defendant's father, Danny Brummett, shot his (Danny Brummett's) granddaughter Monique and shot at his wife, Kay, at the 919 Simpson Road property. Danny Brummett (father of David) had then traveled to nearby 1414 Simpson Road, Defendant's residential and business premises, and shot himself. Wren ultimately applied for and obtained a search warrant for the premises at 1414 Simpson Road.[3] The affidavit contains the following averments:

I responded to a shooting this morning involving Kay Brummett and Monique Brummett at the residence located at 919 Simpson Road in the Crab Orchard community. Danny Brummett shot his grand daughter [ sic ] Monique and shot at his wife Kay at the residence. Danny Brummett later went to his son David Brummett's residence located at 1414 Simpson Road and shot himself. During the investigation a stolen trailer was discovered behind the residence located at 919 and during interviews with Kay and Monique I was told that several more stolen items such as trailers, four wheelers, riding lawn mowers and firearms were located on the property of Danny and David Brummett. I was told by Kay and Monique Brummett that several individuals would bring items to Danny and David and they where [ sic ] told that these items were stolen by both Danny and David. I was also told that there are stolen guns in several safes located in the residence of 1414 Simpson Road.

DE #34-2 (Warrant Affidavit); DE #38-2 (Warrant Affidavit).

Lincoln County District Judge Janet Booth issued the requested search warrant for David Brummett's premises. DE #34-2 (Warrant); DE #38-2 (Warrant). Law enforcement recovered, among other items, 5 trailers of differing varieties, 150 firearms, [4] a skid loader, various tools, and S.D. camera chips. DE #34-2 (Warrant Inventory). Detective Wren testified that, subsequent to warrant execution, further investigation revealed as stolen additional items observed but not seized on May 9. Wren thus applied for a second search warrant for Defendant's premises on May 14, 2013. That warrant authorized law enforcement to search the 1414 Simpson Road residence and "[a]ll vehicles and trailers located at the residence or property."[5] DE #34-3 (Warrant); DE #38-3 (Warrant).

Officers traveled to 1414 Simpson Road on May 14 during the day to execute the warrant. No one was home when they arrived; the group included multiple police units and 7 officers, with at least some in tactical gear. Soon, Defendant drove past the property, which sits on a winding and isolated road in Lincoln County. Wren, standing on or near the front porch of the home, recognized the vehicle and called out to Kentucky Vehicle Enforcement (KVE) officers: "There he goes. Get him."[6] Before the officers even had time to react, Defendant stopped, backed up his vehicle, and pulled into the gravel entrance for the 1414 Simpson Road property. Wren estimated that Brummett angled the truck approximately 45 degrees to the home, parking about 45-50 feet from the front of the residence. Brummett exited the vehicle and walked toward Wren. Wren immediately arrested Brummett[7] for state felon-in-possession charges[8] and advised Brummett that he was there to execute a second search warrant on the property.

Per his testimony, Wren did not perceive Brummett as a risk of flight or danger and thus did not handcuff or formally restrain him. Two officers accompanied Brummett while on the property, but he remained otherwise unrestrained. Brummett's significant other indicated that she needed the car to go to a doctor's appointment. Wren advised that she could leave following a search of the vehicle, [9] and Wren then searched the truck and found (and seized) $26, 000 cash in the center console. The woman then declined to leave, despite being free to do so, and stayed on the property for the remainder of the search.

A federal grand jury indicted Defendant in October 2013 for being a felon-inpossession and for possession of an unregistered firearm. DE #1 (Indictment). The grand jury returned a superseding indictment in December 2013, adding one count of theft of SSA funds. DE #18 (Superseding Indictment). That count references, by forfeiture, the seized $26, 000. Defendant's motion is ripe for review.

II. Analysis

A. A substantial basis validates the May 9, 2013 search warrant.

The Fourth Amendment mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. CONST., amend. IV. Probable cause consists of "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). To determine probable cause, an issuing magistrate must examine the totality of the circumstances and find "a fair probability' that evidence of a crime will be located on the premises of the proposed search." United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (quoting United States v. Bowling, 900 F.2d 926, 930 (6th Cir. 1990)). A supporting affidavit must sufficiently demonstrate the existence of a "nexus between the place to be searched and the evidence sought." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).

In the suppression context, when evaluating whether a warrant application presented probable cause, a reviewing court must accord "great deference" to the issuing judicial officer's determination. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006). Such deference ensures than "an issuing [judge's] discretion [will] only be reversed if it was arbitrarily exercised." United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000). The reviewing court must uphold the issuing judge's probable cause determination if a "substantial basis" existed for the judge to conclude "that a search would uncover evidence of wrongdoing." Illinois v. Gates, 103 S.Ct. 2317, 2331 (1983); Allen, 211 F.3d at 973.

Additionally, line-by-line scrutiny of the supporting affidavit is inappropriate, United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (citing United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004)), and the reviewing court must limit its analysis to the "information presented in the four corners of the affidavit." Id. at 306; United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). When the search at issue occurred pursuant to a warrant, the defendant has the burden of establishing a prima facie case that the search was illegal. United States v. Murrie, 534 F.2d 695, 697-98 (6th Cir. 1976); see also United States v. Franklin, 284 F.Appx. 266, 275 (6th Cir. 2008) (Clay, J., dissenting).

Here, Brummett's primary attack on the affidavit-that it fails to adequately allege that he possessed stolen goods at his residence-misperceives the affidavit's content. Movant alleges that the averments in the affidavit feature two levels of hearsay. DE #34-1 (Memorandum) at 6-7. Under Defendant's interpretation of the affidavit, Kay and Monique Brummett, the identified sources of information, were told by unnamed third-parties that Defendant and his father possessed stolen goods at their residences. See DE #34-2 (Warrant Affidavit); DE #38-2 (Warrant Affidavit) ("I was told by Kay and Monique Brummett that several individuals would bring items to Danny and David and they where [ sic ] told that these items were stolen by both Danny and David."). Brummett denies that Kay and Monique had any personal knowledge about the status of any goods at the residences. DE #34-1 (Memorandum) at 5. Per Brummett's theory, these uncorroborated statements are insufficient to support a probable cause finding and render the affidavit "bare bones." In Movant's view, Kay and Monique Brummett simply conveyed unattributed information to Wren.

The United States responds that, contrary to Movant's assertions, Defendant and his father, not third-parties, themselves informed Kay and Monique Brummett that thirdparties brought them stolen goods. DE #38 (Response) at 7. The Government contends that Brummett misperceives the text and that the women's statements are sufficient to establish probable cause. Id. The United States additionally defends based on Wren's statement that police located a stolen trailer property on Danny Brummett's property. Id .; see also DE #34-2 (Warrant Affidavit); DE #38-2 (Warrant Affidavit) ("During the investigation a stolen trailer was discovered behind the residence located at 919 and during interviews with Kay and Monique I was told that several more stolen items such as trailers, four wheelers, riding lawn mowers and firearms were located on the property of Danny and David Brummett.").

Brummett's interpretation strains linguistic reality. The key is the clause "they where [ sic ] told that these items were stolen by both Danny and David." The defense says "they" means the unknown individuals allegedly bringing stolen property to the Brummetts; the prosecution says "they" refers to Danny and David themselves. The Court rejects the defense construction. It is implausible to think that Danny and David would receive stolen property from individuals and then tell those delivering individuals the property was stolen. Common sense indicates that Danny and David instead received stolen property and "told" Kay and Monique that the property was stolen. The paragraph's flow confirms this as Wren repeatedly cited Kay and Monique as his information ...


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