United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
This matter is before the Court upon Magistrate Judge Hanly A. Ingram's Recommended Disposition (also known as a "Report and Recommendation, " or "R&R") [R. 852] of the Motion to Suppress evidence [R. 754] filed by James Manning. The Magistrate Judge recommends that the Court deny Manning's motion. [R. 852.]
The Magistrate Judge conducted an evidentiary hearing on the issues raised in Manning's motion to suppress and, thereafter, issued a written recommendation wherein he recommends that both Manning's motion to suppress and request for a Franks hearing be denied. [R. 807; R. 852.] In his recommendation, the Magistrate Judge thoroughly sets out his proposed findings of fact and conclusions of law. [R. 852.]
Manning does not offer specific objections to the factual recitation provided in the R&R but does object to the Magistrate's application of the law to those facts. [R. 859.] Because Manning does not specifically object to the Magistrate's proposed findings of fact, the Court adopts them and, for convenience, reprints them herein:
In the late evening hours of February 26, 2011, acting on a noise complaint, Whitley County Sheriff's Deputy Shawn Jackson arrived at Defendant's residence. Upon arriving at the residence, Deputy Jackson made contact with Steve Peace, a male located in the parking area of the residence. Deputy Jackson learned from Mr. Peace that Peace "was there, and he had been there to purchase pills before and that is what he was wanting to do on this particular night as well." Mr. Peace also indicated that Defendant's truck was in the driveway and that Defendant was inside the residence. By this time Kentucky State Police Trooper Leslie Moses had arrived on the scene.
After securing Mr. Peace in the back of a cruiser, Deputy Jackson proceeded to walk over to the residence and began knocking on the front door. Both Trooper Moses and Deputy Jackson testified that, while walking up to the door, they smelled an odor that was consistent (based on their training and experience) with the manufacture of methamphetamine. Trooper Moses further testified that he noticed some surveillance cameras located on the property at this time. Upon knocking on the door and announcing "Whitley County Sheriff's Department, can you open the door, " Deputy Jackson testified that he could hear "a lot of movement inside, maybe even what appeared to sound like running through the residence." After hearing some "movement inside" and receiving no response at the front door, Trooper Moses proceeded to walk around the residence. Trooper Moses testified that he went around the end of the residence, the furthest away from the road, because he "couldn't make contact with anyone. I didn't know if anyone was trying to get out of the residence or if there was another entrance so that I could knock on it to attempt to make contact with them." Deputy Jackson then followed Trooper Moses around the end of the residence, towards its rear.
While walking around the residence, Deputy Jackson "accidently stepped in" a burn pile "where it looked like several items had been burnt." Deputy Jackson further testified that as he walked around "the odor became stronger than I'd had originally smelled and when looking up there was actually an exhaust fan in the window" and "the fan was on, blowing outside." According to Deputy Jackson "this was probably the strongest point of the odor." The fan was in "the last window before you go around the corner to go around behind the trailer."
Both Deputy Jackson and Trooper Moses testified that they believed at that point they had enough evidence to obtain a search warrant.[ ] Trooper Moses testified that the officers disabled the surveillance cameras to ensure "officer safety" based on the information received from Mr. Peace, the odor associated with manufacturing methamphetamine, and the fear that anyone inside the residence would possess a firearm and through the cameras gain knowledge of law enforcement positions thereby posing a "grave threat" to law enforcement. Trooper Moses then began relaying information to Trooper Tony Dingus, who was located at his residence a short distance away from the scene, as Dingus was typing the search warrant materials. Around the same time, Deputy Jackson left the scene in order to get more information for the search warrant such as "the mileage and the direction" from the Corbin City Hall to the residence.
While Deputy Jackson was away from the scene, a female individual, later identified as Kendra Sutton, came out from inside the residence. Trooper Moses testified that Ms. Sutton was "quite upset" and "she came stating over and over and over, help him. I think he is dead. He's overdosed. You all need to help him.'" Law enforcement initially detained Ms. Sutton "so that she couldn't flee or pose any threat to herself" and Ms. Sutton repeated that she thought "he's overdosed." Trooper Moses then testified that, upon receiving this information, he and another deputy went inside the residence and after entering the front door "I could see Mr. Manning was laid in the floor slumped over." Defendant was not responsive at that time. Trooper Moses stated that he could see a firearm[ ] "within two to three feet of where Mr. Manning was located." Moreover, when the officers attempted to move Mr. Manning, "some pills" fell onto the floor. Troopers Moses testified that he[ ] then performed a protective sweep of the house, specifically he "opened the two doors right there in close proximity to where we were at. It was a door to the bathroom. Opened it, looked inside, there was no one in there. And then to the, to the very back bedroom. And opened it, didn't see anyone in there; but saw a bunch of paraphernalia that was in there. Several bottles with tubing kind of linked together in there." Based on his training and experience, Trooper Moses testified that these bottles "appeared to be a meth lab or an HCL generator of some sort." The officers did not see any other firearms during the sweep.
Trooper Moses testified that, after removing Mr. Manning, the door was closed and the officers did not go back into the trailer until the search warrant was obtained.[ ] Law enforcement called an emergency vehicle to take Defendant to the hospital within "a very short timeframe" after they got him outside of the residence. The information about Kendra Sutton and the entry into the residence were relayed by Trooper Moses to Deputy Jackson who was not present at the time. Once the warrant materials were completed by Trooper Dingus, Deputy Jackson was the officer who took it to Whitley County District Judge Fred White in the "early morning hours" of February 27, 2011.
The "Affidavit for Search Warrant" was signed by Deputy Jackson, and then by District Judge Fred White, at 2:05 a.m. on February 27, 2011. Similarly, the search warrant was signed on February 27, 2011, and returned executed on February 27, 2011, however a time is not indicated on the return. In relevant parts, the affidavit provides that the "affiant also observed burn piles in plain view of the drive way, " "observed a strong chemical odor coming from inside the residence, " and that "while securing the scene a female later identified as Kendra Sutton exited the residence and stated James Manning had overdosed and needed help." Furthermore, the affidavit indicates that, while in the residence, the affiant "observed a very strong chemical smell along with Mason jars containing a milky liquid substance inside it. Officers also observed in plain view coffee filters, and zip lock baggies along with firearms."
After executing the search, officers recovered several firearms, video equipment, a pill believed to be oxycodone, three active "one step" methamphetamine labs, three composition style notebooks that were consistent with drug trafficking, and a small amount of cash.
[R. 852 at 2-6 (citations to the record and footnotes omitted).]
While Manning does not object to the above factual recitation, he does object with some specificity to the Magistrate's legal conclusions. Before considering Manning's objections, a brief synoposis of the Magistrate's conclusions provides some context. The Magistrate Judge ruled that the Officers' entry into the curtilage of Manning's home did not offend the Fourth Amendment because of the "knock and talk" exception to the warrant requirement. [R. 852 at 6-9.] While executing the knock and talk, the officers observed an odor emanating from the house, a fan in the window, and a burn pile in the yard. The Magistrate Judge suggests that these observations were properly included in the affidavit for a search warrant as they were in the officers' plain view. [ Id. at 9-11.] Next, the Magistrate concluded that the Officer's entry into Manning's trailer was justifiable due to exigent circumstances. [ Id. at 11-15.] Once inside the trailer, the Officers performed a protective sweep which was also deemed appropriate. [ Id. at 15-19.] After considering these issues, the Magistrate concluded that suppression would not be warranted even if the Fourth Amendment was violated, because probable cause supported both the issuance of the search warrant and the subsequent search of the trailer. [ Id. at 20-22.] Manning also argued that the search warrant should have been suppressed, first, because it lacked a notation with the specific time of service as required by Kentucky Rule of Criminal Procedure 13.10, and, second, because of errors in the affidavit supporting the warrant. The Magistrate considered these arguments and concluded that suppression is unwarranted. [ Id. at 20-26.]
Manning now challenges the Magistrate's conclusions regarding (1) the Officer's decision to approach the back of his trailer after nobody answered at the front door, (2) the Officer's decision to enter his trailer and to perform a protective sweep, and (3) the affidavit supporting the search warrant. [ Id. ] These objections trigger this Court's obligation to conduct a de novo review of the analysis on all those points to which Manning objects. 28 U.S.C. § 636(b)(1)(c). Having satisfied this duty, and for the reasons provided below, the Magistrate Judge's recommended disposition will be ADOPTED for the reasons stated herein, Manning's objections will be OVERRULED and Manning's Motion to Suppress will be DENIED.
The Fourth Amendment governs here. It provides that "the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularity describing the place to be searched and persons or things to be seized." U.S. Const. Amend. IV.