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United States v. Fuqua

United States District Court, W.D. Kentucky, Paducah Division

December 8, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMARCUS LAMAR FUQUA, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, District Judge.

This matter comes before the Court upon Defendant Demarcus Lamar Fuqua's Motion to Suppress, (Docket No. 26), to which the Government has responded, (Docket No. 30). A hearing was held on November 24, 2014, and the matter is now ripe for adjudication. For the reasons explained below, Fuqua's Motion will be denied.

Factual Background

As detailed in the application for search warrant, the parties' briefing, and the suppression hearing, this matter arises from information provided to the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") by a confidential informant. The informant relayed to ATF Special Agent Chad Foreman that Fuqua was trafficking significant quantities of narcotics in the Paducah and Princeton areas of Western Kentucky, with his supply originating in Texas. According to the informant, Fuqua had recently been arrested in Texas for transporting a large amount of marijuana. Fuqua's involvement in the Kentucky drug market, the informant said, stemmed from the arrest of his brother, Jerrold Fuqua ("Jerrold"), for violations of federal narcotics laws; when Jerrold was incarcerated, he left behind a robust trafficking business for Defendant Fuqua to assume.

The ATF's criminal records check revealed that Fuqua had previously been convicted of several felonies, including trafficking in cocaine, and was on parole for one of those charges. The records check also indicated that Fuqua had been arrested in Rockwall, Texas, on May 21, 2014, for felony possession of marijuana in an amount exceeding fifty pounds. A Rockwall police detective informed the ATF that Fuqua, along with Tabitha Prowell, had been found in possession of approximately eighty pounds of marijuana that Fuqua had obtained in Dallas, Texas. Law enforcement reports indicated that Fuqua and Prowell had attempted to conceal her involvement in the scheme.

On June 3, 2014, Special Agent Jason Murphy met with the informant, who conveyed that Fuqua and his brother, Jerrold, "had been partnered in selling narcotics for years, " (Docket No. 26-3, Affidavit in Support of Probable Cause, at ΒΆ 10), and that he had personally observed Fuqua in possession of cocaine or cocaine base on numerous occasions in the past seven months. According to the informant, Fuqua used at least three different vehicles to transport narcotics, including a black Chevrolet Suburban. Investigators determined that a 2003 black Chevrolet Suburban was registered to Prowell at 611 Varmint Trace in Princeton, Kentucky, where they believed that Fuqua and Prowell resided. The same vehicle was previously owned by Jerrold Fuqua, now incarcerated.

The same day, the ATF conducted surveillance on Fuqua at 611 Varmint Trace and observed him place something in the Suburban, then leave. Officers later observed the same Suburban parked behind the 611 Varmint Trace address. A similar pattern was noted during the course of surveillance on June 6, 2014, after which investigators executed a federal tracking warrant on the Suburban, allowing them to monitor the driving patterns and frequent destinations of its drivers. In the course of this monitoring, investigators observed Fuqua make frequent stops near 611 Varmint Trace in a fashion consistent with narcotics trafficking.

According to the affidavit, on June 19, 2014, Fuqua reached out to the informant with instructions to meet him at Mayfair Apartments in Paducah, Kentucky. The informant observed Fuqua's Suburban in the apartment's parking lot. Once inside, Fuqua allegedly gave the informant a baggie of cocaine powder to sell on Fuqua's behalf, later determined to weigh approximately 37.6 grams. The informant also stated that after Fuqua meted out cocaine to another individual, he discarded the wrappers of the cocaine bundles and instructed the informant to take the trash bag to the apartment complex's communal dumpster. Officers later recovered these wrappers, along with a baggie containing cocaine residue. On the same date, officers observed Fuqua switch vehicles at the apartment complex, exchanging a white Chevrolet Tahoe registered to Prowell for the black Suburban. Fuqua drove the Suburban to Princeton, where he stopped at several addresses-including 611 Varmint Trace-before again switching vehicles and returning to Paducah.

On June 20, 2014, investigators monitored the informant, who entered Fuqua's apartment in Paducah and repaid him $1, 400.00 in prerecorded money for the amount of cocaine that Fuqua had given him the day before. Thereafter, Fuqua was observed driving from Paducah to Princeton, switching vehicles, and driving back to 611 Varmint Trace in Princeton.

Five days later, Special Agent Murphy authored an affidavit and application for search warrant for the residence at 611 Varmint Trace, as well as for a white Chevrolet Tahoe and the black Chevrolet Suburban. Based on this information, the United States Magistrate Judge found probable cause and issued a search warrant to recover various paraphernalia associated with illegal narcotics at 611 Varmint Trace, as well as the vehicles. The warrant was executed on July 7, 2014.

Analysis

In his Motion to Suppress, Fuqua argues that all evidence originating from the search of 611 Varmint Trace in Princeton, Kentucky, should be excluded. In addition to his broad assertion that the search was unreasonable, Fuqua levies a three-pronged argument as to why the evidence recovered a result of the search should be excluded. First, he contends that the affidavit supporting the search insufficiently demonstrates probable cause. Fuqua next asserts that the information within the affidavit had become stale by the time of the search. Finally, he argues that law enforcement officers failed to include in the affidavit facts that would have indicated the lack of probable cause. The Court will consider each of Fuqua's arguments in turn.

I. The affidavit supporting the search warrant adequately establishes probable cause.

Fuqua first asserts that the affidavit upon which the search warrant was grounded was insufficient, rendering the search constitutionally insufficient. In evaluating an affidavit's sufficiency, the Court must determine "whether the magistrate judge had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited." United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004) (citing United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). Probable cause requires "a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). That is, the affidavit must suggest "reasonable cause to believe that the specific things' to be searched for and seized are located on the property to which entry is sought' and not merely that the owner of property is suspected of crime." United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting Zurcher v. Stanford Daily, 436 U.S. 457, 556 (1978)). In making this inquiry, "[t]he issuing judge or magistrate may give considerable weight to the conclusion of ...


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