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United States v. Friskey

United States District Court, E.D. Kentucky, Northern Division, Covington

November 26, 2014



DAVID L. BUNNING, District Judge.


This matter is before the Court on Defendant's Motion to Suppress (Doc. # 16) all evidence seized from his residence on November 13, 2012, pursuant to a search warrant he alleges was issued based upon unlawfully obtained evidence discovered when the officers allegedly exceeded the scope of a protective sweep of his basement ( id. ). After the motion was fully briefed, the Court held an evidentiary hearing on November 17, 2014. (Doc. # 20). Defendant Friskey was present at the hearing and represented by Attorney Steve Smith. The United States was represented by Assistant United States Attorney Tony Bracke. The hearing was recorded by Official Court Reporter Lisa Wiesman. At the conclusion of the hearing, Defendant's motion was submitted for decision ( id. ) For the reasons set forth herein, Defendant's Motion to Suppress (Doc. # 16) is hereby denied.


Three witnesses testified during the evidentiary hearing. The United States called Kenton County Police Officers Gary Helton and Aaron Schihl. Defendant called DEA Task Force Agent Andy Muse. Weighing the credibility of the witnesses, and considering the exhibits admitted during the hearing, the Court makes the following factual findings:

1. On Tuesday, November 13, 2012, Kenton County Police Officers Helton and

Schihl were notified that the dispatch center had received a 911 call from someone reporting that a suspicious person was prowling around a residence on Mills Road in Kenton County. However, the 911 caller did not provide an exact address.

2. According to both officers, there had been a string of burglaries in and around that area.

3. Upon their arrival, Officers Helton and Schihl initially went to the wrong residence.[1] Suspecting there may have been a burglary in progress, they checked the perimeter of the house, found an unlocked door, and went inside to clear the residence. Upon finding no intruders, they exited the residence.

4. Upon exiting that house, the neighbor who had made the 911 call approached the officers and told them they had checked the wrong house. That person directed them to the house next door at 3277 Mills Road.[2] The complainant also explained that the suspicious vehicle was parked in the parking lot of St. Patrick's church across the street, and that a male had been walking around that residence, in the area of the front doors. The neighbor further explained that the vehicle and male were "out of ordinary" for the area.

5. The officers then proceeded to 3277 Mills Road to check and make sure there was no burglary in progress. From the location of windows that were low to the ground, the officers also believed it was likely that there was a basement to the residence. Officer Helton went to the front door and Officer Schihl proceeded to the back door. Both doors were unlocked. For officer safety, the officers decided to make entry together through the front door.

6. Once the officers opened the front door and made entry into the residence, both noticed an extremely strong odor of marijuana.

7. After making initial entry into the residence, the officers proceeded to conduct a search for the male prowler that had been described to them, looking throughout the first floor of the residence with no success. The officers only looked in areas where a prowler may have been hiding.

8. Having no success in locating the suspected prowler, and believing there was a basement to the residence, the officers came across an alcove on the first floor which was described by Officer Schihl as a hallway that led to nowhere, and seemed out of place. Upon lifting the carpet back, the officers noticed a hidden door in the floor. Although neither officer was able to describe exactly how the carpet looked on top of the door when they saw it, both did explain that the photograph admitted as Exhibit 2 during the hearing was not how it looked when they initially saw it.

9. After discovering the door, and having not yet located the suspected prowler that had been reported to them as casing the residence, the officers proceeded to open the basement door. Upon opening the door, the smell of marijuana was even stronger than before. The officers also heard exhaust fans running.[3] the intruder with no success. While there they did observe a wall of plastic sheeting and both small and large marijuana plants in the basement.

11. After checking the basement to no avail, the officers did a second, quick sweep through the first floor to locate the prowler. That second sweep was also unsuccessful. This second sweep did not reveal ...

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