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United States v. Wilhere

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

January 31, 2015

UNITED STATES OF AMERICA, PLAINTIFF
v.
CHARLES PAUL WILHERE, DEFENDANT

Page 916

For Charles Paul Wilhere, Defendant: C. David Mussetter, Catlettsburg, KY.

For USA, Plaintiff: Robert Kennedy McBride, LEAD ATTORNEY, U.S. Attorney's Office - Ft. Mitchell, Ft. Mitchell, KY.

Page 917

MEMORANDUM OPINION AND ORDER

David L. Bunning, United States District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Motion to Suppress evidence seized from his gun safe during a search conducted on May 28, 2014. (Doc. # 16). After the Government filed its response (Doc. # 17), the Court heard oral argument from both parties on January 20, 2015. Assistant United States Attorney Robert McBride appeared on behalf of the Government; Attorney David Mussetter appeared on behalf of Defendant, who was also present. The proceedings were recorded by Official Court Reporter Joan Averdick. At the conclusion of the hearing, the matter was submitted for the Court's review. For the reasons set forth herein, Defendant's Motion to Suppress is granted.

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2014, Aaron Adkins was killed inside Defendant's residence in Boyd County, Kentucky. (Doc. # 16 at 1).[1] Deputies from the Boyd County Sheriff's Department arrived at the scene early that morning and found evidence of an altercation between Defendant and Mr. Adkins. ( Id.) The Boyd County coroner was asked to respond, along with various other law enforcement personnel, including Detective Kelley, Sergeant Goble and Trooper Duvall of the Kentucky State Police. ( Id. at 2). The coroner confirmed that Mr. Adkins had not been shot and therefore did not die from a gunshot wound. Defendant was detained by Sergeant Goble and taken to KSP Post 14 for interrogation. ( Id.)

Later that day, Trooper Duvall obtained a warrant to search Defendant's residence (the " First Warrant" ). ( Id.) Signed by Boyd District Judge Gerald Reams, the First Warrant described the incident as a " shooting" and authorized Trooper Duvall to search for " [w]eapons and any and all other evidence of crime." Upon executing the First Warrant, Trooper Duvall seized the victim's body and clothing, and observed

Page 918

a large gun safe within Defendant's home. (Doc. # 17 at 1).

Two days later, on May 28, Detective Kelley obtained another search warrant, signed by Boyd District Judge Scott Reese (the " Second Warrant" ). (Doc. # 16 at 13). The affidavit for the Second Warrant requests permission for the following:

DNA buccal swab to be taken from the above name [sic] suspect and dental mouth impression for bite mark registration. There is also a large safe at the residence and the contents of which must be inventoried. The attached Search Warrant should also authorize the Officer to open and inventory the contents of the ...

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