United States District Court, E.D. Kentucky, Central Division, Lexington
ROBERT E. WIER, Magistrate Judge.
Defendant, Jesus Lizarraras-Estudillo, by counsel, moves to suppress all physical evidence (and the fruits thereof) seized during law enforcement's March 6, 2014, search of his residence. DE #116. Defendant claims the affidavit underlying the search warrant failed to establish probable cause and that criticisms, premised on discovery, justify a hearing under Franks v. Delaware, 98 S.Ct. 2674 (1978). Id. The United States responds in opposition, arguing that the affidavit did establish probable cause and that Defendant has not met the Franks burden. DE #122. Defendant replied. DE #123.
Both sides agreed that the Court should hold an evidentiary hearing, of some type, to place certain testimony in the record. See DE ##121 (Government's Motion for a Hearing); 123. The Court held a hearing on December 8, 2014, noting "that whether to hold this hearing was a close call because it does not neatly fall into the established Franks framework" but deciding to proceed based on the parties' joint request and the gravity of Defendant's interest. DE #132 (Minute Entry Order). The Court heard the sworn testimony of two witnesses (LPD Detective Danny Page and DEA Special Agent James England) and admitted two collective exhibits (the affidavit and photocopied images of a heroin field test, substituting for the actual object, which was part of the hearing). Id. The Court has reviewed the entire record, including the parties' briefs, the testimony and exhibits, counsel's arguments, and the applicable law. The matter is ripe for consideration. For the following reasons, the Court RECOMMENDS that the District Court DENY the motion to suppress (DE #116). Defendant has not justified a Franks hearing, and probable cause supported the search warrant.
I. THE AFFIDAVIT AND THE HEARING
Detective Danny Page ("Page"), a Lexington narcotics detective with 16 years of police experience (approximately 10 in narcotics), swore to the affidavit at issue before and obtained a search warrant from Fayette District Court Judge Megan Thornton on March 6, 2014. DE #116-2 (Affidavit). The warrant targeted heroin trafficking items at 1346 Village Drive, Apartment #D-18,  Lexington, Kentucky, and/or on the person of "Flacko, " Defendant's alias. Id. at 1.
The affidavit generally details law enforcement's investigation into a heroin trafficking operation in the Northern Kentucky and Lexington areas. Id. at 2. A cooperating witness ("CW"), who allegedly was part of the subject black tar heroin ring in Northern Kentucky, advised law enforcement that two Hispanic men, known as Flacko and Izzy, were the CW's main source of supply. Id. The CW informed law enforcement that, among others, Duran and Tamara Wombles were part of the heroin operation in Lexington. Agent Curtis Bush ("Bush"), enlisting help from Lexington, began surveillance of Ms. Wombles. The affidavit details officers' observations of Ms. Wombles beginning on January 18, 2014, including entering the #D-14 through 25 breezeway at 1346 Village Drive, and returning to that apartment complex the next day. Id. The CW also informed law enforcement of a January 19 call between Flacko and Ms. Wombles, which the CW translated, concerning a heroin debt. Id. That call occurred while police knew Ms. Wombles was in Flacko's apartment building.
On January 20, 2014, Bush informed Page that Ms. Wombles was again (for the third day in a row) driving from Northern Kentucky to Lexington. Id. Page located Ms. Wombles's car and began following it. Lexington police then conducted a traffic stop on her car on Newtown Pike, issuing a warning citation. Id. Lexington police advised Page that the driver was Ms. Wombles, and her passenger was Eduardo Garcia, whom Page believed (at the time of the affidavit) to be Flacko. Id. at 3. Lexington Narcotics officers again followed Ms. Wombles to 1346 Village Drive. Id.
The pattern continued on January 26, 2014, when Lexington Narcotics officers observed Ms. Wombles return to 1346 Village Drive and enter the same breezeway. Id. This time, however, Page observed a man believed to be Flacko arrive in a black pickup truck (that officers previously observed outside the apartment) and enter the common breezeway. Id. Page searched the police database for the truck's plate number and found the truck was registered to an individual who lived at 1346 Village Drive, Apartment #D-18. Id.
On March 6, 2014, Bush and members of the Lexington DEA advised Page that law enforcement had arrested both Wombleses based on several controlled purchases of heroin. Id. Ms. Wombles cooperated and gave statements related to Flacko's heroin trafficking at 1346 Village Drive. Id. She advised officers of her February 24, 2014, purchase of heroin from Flacko at his apartment (either number 16 or 18) and admitted to regular re-ups from Flacko. Id. She continued a 2 month/6 ounce supply relationship with Flacko. She also agreed to place a monitored call to Flacko for the purpose of arranging a heroin buy. Id. Flacko agreed to the transaction and advised he was holding (what the officers understood to be, in the coded language of the conversation) heroin. Id. Mr. Wombles similarly cooperated and stated he once observed Ms. Wombles give Flacko heroin in a cereal box, retaining a sizable quantity for her own distribution. Id.
On the March 6 monitored call, Flacko agreed to and indicated readiness for a heroin deal with Ms. Wombles at his apartment at 1346 Village Drive. Officers took her to the apartment complex, and she entered apartment #D-18. She exited after 20 minutes and returned to the officers. She relinquished a quantity of a substance believed, at the time, to be heroin, based on Task Force Officer Jose Batista's ("Batista") contemporaneous field test that returned a heroin positive result. Ms. Wombles advised Flacko gave her the substance inside apartment #D-18. Id. She advised Flacko intended her to take the substance to Northern Kentucky to sell. Id.
Page prepared an affidavit in support of a search warrant for Defendant's apartment and person. Based on the affidavit, Judge Thornton found probable cause and issued the search warrant. Law enforcement executed the warrant, seized evidence of heroin trafficking, and arrested Defendant Lizarraras-Estudillo a/k/a Flacko. Defendant now challenges the affidavit's sufficiency based on the characterization of heroin in the March 6 Flacko-Wombles transaction that ultimately proved to be incorrect.
At the evidentiary hearing, Page testified generally to the investigation into heroin distribution involving Flacko and the Wombleses. He advised that TFO Batista, who was present during the March 6 monitored conversation and is a native Spanish speaker, relayed to Page information concerning the call. Page was present for the beginning of the March 6 controlled purchase. He saw Ms. Wombles enter Defendant's apartment to conduct the controlled buy. He left after she entered and was not present when she exited. Batista called Page after Ms. Wombles returned, advised that he field tested the surrendered substance (which weighed approximately 1 ounce), and informed Page that it tested positive for heroin. Page then applied for and obtained a search warrant. Approximately two hours after execution of the search warrant, Page field tested the substance himself (the second time overall); the test again returned a positive result. Law enforcement then sent the substance to the DEA lab for formal testing. The lab ultimately returned a negative result for all controlled substances as to that quantity. DE #116-4.
Agent England testified to two March 6 telephone calls between Ms. Wombles and Flacko-one from the Erlanger police station and one from his police car. He described the specifics of the car conversation between an individual believed to be Flacko (later determined to be Defendant) and Ms. Wombles. The call occurred in Spanish, which was reliably translated into English for law enforcement use. Ms. Wombles asked Defendant if he had "it" and if he had "the bad stuff." Defendant responded that he had some of "the bad stuff and some more of the good stuff." Ms. Wombles proposed a transaction, and Defendant agreed. Ms. ...