United States District Court, E.D. Kentucky, Central Division, Lexington
ROBERT E. WIER, Magistrate Judge.
Defendant Edward A. Barker, by counsel, moves to suppress evidence obtained from his residence pursuant to a state search warrant. DE #14 (Motion). In support of the motion, Barker makes two arguments. See DE #14-1 (Memorandum in Support of Motion to Suppress). First, Barker argues that the warrant affidavit failed to establish a sufficient nexus between the evidence sought and his residence, the place to be searched. Id. at 2-3. Second, Barker argues that the affidavit failed to provide adequate information from and about the referenced confidential informant ("CI"). Id. at 4-5. Barker contends that because of these deficiencies, the affidavit lacked sufficient information to support a probable cause finding.
The United States filed a response in opposition to the motion. DE #17 (Response). Defendant replied. DE #18 (Reply). Because, as the parties agree, the motion calls for "four corners" review of the warrant documents, the Court did not hold an evidentiary hearing. The Court did, however, receive oral argument at the conclusion of briefing. See DE #20 (Minute Entry).
Having heard the parties' arguments and reviewed the briefs submitted by counsel, along with the subject warrant and affidavit, the Court recommends that the District Court DENY the motion to suppress. A substantial basis supported warrant issuance. Further, even if probable cause did not support the warrant, the exclusionary rule would not apply under current standards.
On the morning of May 18, 2011, Detective Arthur R. Lacy with the Stanton Police Department submitted two affidavits seeking distinct search warrants for two buildings located at 1450 Nada Tunnel Road, Stanton, Kentucky 40380. DE ##17-1 and 17-2 (Warrant Affidavits). The first affidavit asked for a warrant to search a two story building on the property. DE #17-1. The affidavit particularly described the building as follows: "A two story building in which the first floor is commonly used as a garage and the second floor commonly use[d] as residence. The first floor has wood siding and the second floor has light brown vinyl siding. The top floor also has a porch on the East side of the residence." Id. The second affidavit asked for a warrant to search a "gray mobile home with a wooden porch." DE #17-2. Both affidavits indicated that Detective Lacy wanted to search the buildings for illegal drugs, drug paraphernalia, cash, and other indicia of drug trafficking. DE ##17-1 and 17-2.
In support of his request for a warrant to search the two-story building, Affiant Lacy stated that on May 17, 2011, he received information from Kentucky State Police Confidential Informant #10-2017 "[t]hat Edward Barker was knowingly trafficking illegal drugs from" the residence. DE #17-1. According to Lacy, "CI informed this detective that Edward Barker traffics and stores drugs at" the two-story building. Id. Additionally, Detective Lacy indicated that he conducted an independent investigation, which involved a controlled purchase of drugs from Barker by the CI. Id. Lacy described the transaction as follows:
That on Tuesday May 17, 2011 CI was given recording equipment and money to make a control purchase of drugs from Edward Barker. CI traveled to 1450 Nada Tunnel Road in Stanton, KY also known as the residence of Edward Barker and asked to purchase drugs. That Edward Barker agreed to illegally sell CI drugs and walked out of this building and left the CI on the second floor. That CI walked out to the porch on the second floor and observed Edward Barker walked to a mobile home, went inside and exited it. That Edward Barker then walked back to the second floor of this building and illegally trafficked drugs to CI. Then CI drove back and met with this detective and returned drugs and recording device.
Detective Lacy's affidavit for a warrant to search the gray mobile home provided similar information. See DE #17-2. In that affidavit, Lacy stated that he received information on May 16, 2011, from the same CI, CI #10-2017, "[t]hat Edward Barker was selling illegal drugs from... 1450 Nada Tunnel Rd." and "[t]hat Edward stores and sells drugs at the mobile home and the building/residence beside of the mobile home" on the property. Id. With respect to Detective Lacy's independent investigation, the mobile home affidavit first described a controlled purchase of drugs from Barker on May 16, 2011. Id. Lacy stated that on May 16,
the CI was given recording equipment and money to purchase illegal drugs from Edward Barker. The CI traveled to Edward Barker[']s residence and made contact with Edward Barker and asks to purchase drugs. Edward Barker and the CI then walked to the mobile home and Edward went inside and then came back with the drugs and sold them to the CI. The CI then returned with the drugs and the recording equipment.
Id. Lacy did not mention this May 16 transaction in the affidavit for the two-story residence. The mobile home affidavit then went on to describe the May 17 transaction between Barker and the CI that was included in the two-story building affidavit. Id.
Lacy simultaneously signed and submitted the applications, and Judge Frank A. Fletcher, Circuit Judge for Breathitt, Powell, and Wolfe Counties, signed both warrants at 8:44 a.m. on May 18, 2011. DE ##17-3 and 17-4 (Warrants). Detective Lacy executed the warrants the same day. See DE ##17-3 and 17-4. The warrant return sheets indicate that law enforcement seized several items from the two-story building, including pill bottles, pills, a bag containing a green leaf substance, and eleven miscellaneous notes recording suspected drug transactions. DE #17-3. Additionally, law enforcement recovered several items of evidence from the gray mobile home, including more pill containers, pills, a considerable amount of cash, and a small ammunition can containing several bullets. DE #17-4.
On April 10, 2014, a federal grand jury in this District indicted Barker for 2011 conduct on charges of oxycodone trafficking, possession of a firearm by a convicted felon, and a related forfeiture allegation. DE #1 (Indictment). Specifically, Counts 1 through 4 charge Barker with distributing a quantity of pills containing oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). DE #1. The criminal conduct allegedly occurred in Powell County on July 22, 2010, September 2, 2010, September 23, 2010, and February 1, 2011, respectively. Id. Count 5 also charges a § 841(a)(1) violation, alleging that Barker possessed with intent to distribute oxycodone in Powell County on May 18, 2011, the date of warrant issuance and execution. Id. Count 6 charges that Barker, having been convicted of a felony, possessed a ...