United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
In January of 2014, Officer Barry Adams of Rockcastle County, Kentucky, reviewed surveillance video of a robbery at a Cash Express store. His findings sparked a chain of events that ultimately led him to pursue an entirely different crime-the distribution of narcotics. Through his investigation, Officer Adams spoke with an informant who pointed him to a familiar suspect-defendant Robert Lovell. Officer Adams, who had previously arrested Lovell for drug trafficking, then obtained a warrant to search Lovell's home from trial commissioner and local magistrate Jeremy Rowe. Rowe also had a history with Lovell: Rowe had served in the county attorney's office when Lovell was previously prosecuted. Rowe also happens to be Lovell's second cousin.
Lovell argues that this unique combination of facts-the accusation from an informant and Magistrate Rowe's ties to the local prosecutor's office-renders the warrant defective. He maintains that the resulting search violated his Fourth Amendment rights and asks the Court to suppress the evidence seized from his home. But the warrant contained sufficient information to allow the trial commissioner to independently determine that Officer Adams had probable cause to search Lovell's house. Because no Fourth Amendment violation occurred, suppression is not appropriate.
Magistrate Judge Hanly A. Ingram provided a thorough overview of the relevant facts in his report and recommendation ("R&R"). See R. 236. Accordingly, a brief overview follows. In January 2014, Officer Barry Adams investigated a robbery of a Cash Express store. See R. 173-5 (Attachment B to Search Warrant - Affidavit of Officer Barry Adams). After reviewing surveillance footage of the robbery, Officer Adams identified a green Mercury Villager as the vehicle used in the crime. Soon after, Officer Adams conducted a traffic stop on a green Mercury Villager and talked with a passenger, Lee Hamilton Speaks. Id. at 2. Speaks later consented to a search of his home, where Officer Adams noticed clothing that he had seen the Cash Express robber wear while committing the crime and apparel worn by a suspect in a recent robbery at a Citizens Bank. Id. Officer Adams arrested Speaks, who then opened up. Speaks confessed to the Cash Express and Citizens Bank robberies. Speaks admitted to purchasing 130 oxycodone tablets at defendant Lovell's residence after the Citizen Bank robbery. R. 173-4; R. 173-5. Officer Adams had previously arrested Lovell for trafficking oxycodone. R. 173-4.
Based on his interview with Speaks and his prior interaction with Lovell, Officer Adams applied for a warrant to search Lovell's residence. As part of his warrant application, Officer Adams provided two attachments to his affidavit. See R. 173-4; R. 173-5. In those attachments, he recounted the origins of his contact with Lee Speaks and his previous encounter with Lovell. Id. Rockcastle County District Court Trial Commissioner and Magistrate Jeremy Rowe signed the warrant, and Officer Adams executed the search. Lovell moved to suppress the fruits of the search. R. 173. He argued that the warrant was not supported by probable cause and that the issuing magistrate was not "neutral and detached." Id. at 4, 8. Magistrate Judge Ingram issued an R&R recommending that the motion be denied. R. 236.
Lovell disputes Magistrate Judge Ingram's conclusions. R. 254 at 1. He also alludes to a new basis for challenging the search warrant as devoid of probable cause. See R. 254 at 3 (claiming that the affidavit in support of the warrant incorrectly listed Lovell's address); R. 236 at 3 n.1 (specifically noting that Lovell did not move for suppression on the basis that the affidavit erroneously reported his address). But a party waives review of any issues raised for the first time in objections to a magistrate judge's report and recommendation. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). The Court accordingly reviews the conclusions in Magistrate Judge Ingram's report and recommendation to which Lovell filed timely and sufficiently specific objections. See Thomas v. Arn, 474 U.S. 140, 147-48 (1985).
I. The Warrant and Affidavit Contained Sufficient Factual Information to Provide Probable Cause to Search Lovell's Residence.
A magistrate judge evaluating whether a warrant is supported by probable cause must analyze the totality of the factual circumstances presented in the warrant and attached affidavits. Illinois v. Gates, 462 U.S. 213, 238 (1983). Taken together, the facts must give rise to a "fair probability" that evidence of a crime will be located at the premises of the proposed search. See United States v. Jackson, 470 F.3d 299, 307 (6th Cir. 2006). An affidavit, however, that simply recites "suspicions, beliefs, or conclusions" without other support is a "bare bones" affidavit devoid of probable cause. United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Where, as here, an informant supplies facts for the affidavit, the magistrate must also determine that the affidavit indicates the informant's veracity, reliability, and basis of knowledge. Id. An informant may establish his reliability by, among other things, making a statement against his penal interest. United States v. Higgins, 557 F.3d 381, 389-90 (6th Cir. 2009).
An affidavit establishes probable cause where it both "recites that recent criminal activity was personally observed by a highly reliable informant" and contains corroboration by further police investigation. United States v. Smith, 182 F.3d 473, 476 (6th Cir. 1999). But it is not clear whether police corroboration is required in other cases where an informant is less reliable. On the one hand, an affidavit must contain police corroboration where there is an "absence of any indicia" of a confidential informant's reliability. United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010). But corroboration is not needed where the informant recently observed criminal activity and is identified by name in the affidavit. United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986) (holding that a named informant's statements about recent criminal activity were sufficient to establish probable cause to search a residence).
Based on the collective statements of both informant Speaks and Officer Adams, Magistrate Judge Ingram rightly determined that the affidavit provided probable cause to search Lovell's residence. The affidavit contained factual statements of the firsthand experiences of an informant-Speaks-who recounted his observations of criminal activity at Lovell's residence. See United States v. Rose, 714 F.3d 362, 368 (6th Cir. 2013) (upholding an affidavit that established a link between criminal activity and the defendant, as well as the criminal activity and defendant's residence). Officer Adams corroborated portions of those observations with statements about his own personal knowledge and experience arresting Lovell for dealing drugs. So Magistrate Judge Ingram correctly concluded that the warrant contained statements based on personal knowledge.
Lovell argues that Officer Adams improperly relied on the "bare bones" warrant because it was plagued by "conclusory" statements. R. 173-1 at 4-6; R. 254 at 2. Lovell's objection lacks merit. Magistrate Judge Ingram properly characterized the statements attached to the affidavit as facts, not conclusions. R. 236 at 7. Speaks admitted that he purchased oxycodone from Lovell's residence four days before the warrant was signed, and Officer Adams claimed that he previously arrested Lovell for trafficking in oxycodone. R. 173-4; R. 173-5. Neither of those statements are mere "suspicions, beliefs, or conclusions" devoid of factual circumstances. Weaver, 99 F.3d at 1378. Rather, the statements provide data points that Magistrate Rowe could use to evaluate whether there was a "fair probability" that contraband would be found in Lovell's house. Gates, 462 U.S. at 238.
This is not a case where the evidence tying Lovell's drug dealing activity to his home was "so vague as to be... meaningless." United States v. McPhearson, 469 F.3d 518, 526-527 (6th Cir. 2006). Because there exists a "minimal nexus" between the place to be searched and the evidence sought, the warrant provided probable cause to search Lovell's home in a timely manner. See Bethal, 245 F.Appx. at 479-80 (explaining that outdated information may be ...