United States District Court, Western District of Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
Greg N. Stivers, Judge
This matter comes before the Court upon the Motion for Franks Hearing and Motion to Suppress Search filed by Defendant Phong Nguyen ("Nguyen"). (Def's Mot. for Franks Hr'g & Mot. to Suppress, DN 55). Fully briefed, this motion is ripe for a decision. For the following reasons, Nguyen's motion is DENIED.
I. SUMMARY OF FACTS AND CLAIMS
At issue in this case is a warrant issued on May 7, 2014, by Magistrate Judge Dave Whalin to Special Agent Bradley K. Leveritt ("Leveritt") of the Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") to search Nguyen's residence at 10304 Arbor Oak Drive in Louisville, Kentucky ("Arbor Oak Drive"). The search warrant was issued in response to an application by Leveritt, whose accompanying affidavit contained the following information:
• On December 8, 2012, Louisville Metro Police ("LMP") stopped Thien Le ("Le") and found him to be in possession of five pounds of marijuana (Aff in Supp. of Search Warrant, ¶ 14, DN 61-5 [hereinafter "Leveritt Aff"]). On the same day, the LMP executed a search warrant for Le's residence and found additional marijuana as well as a stolen handgun. (Leveritt Aff. ¶ 14).
• When questioned by a federal agent, Le admitted to having prior drug narcotics sales with Nguyen. (Leveritt Aff.¶13). In particular, Le described to agents an ongoing operation-in conjunction with Nguyen-involving biweekly shipments of narcotics from Oakland, California, to Louisville, Kentucky. (Leveritt Aff.¶13).
• On January 16, 2014, Nguyen was in the custody of Jefferson County Metro Corrections (Def's Mot. for Franks Hr'g & Mot. to Suppress 1) after being arrested pursuant to a bench warrant issued for possession of cocaine. (Leveritt Aff. ¶ 10, DN 61-5). While detained, Nguyen spoke by telephone several times to his girlfriend, co-Defendant Michelle Ignacio ("Ignacio"), who related that she had been moving belongings from "home" to "the new spot." (Resp. to Mot. for Franks Hr'g & Mot. to Suppress, Ex. 1 at 2, 5-7, DN 61-1)
• In one of the phone conversations, Ignacio stated to Nguyen, "I'm going back home, I just dropped everything off over here, " and "I got our most important stuff over here right now, " specifically "the firearms." (Def's Mot. for Franks Hr'g & Mot. to Suppress 1). Nguyen "condescendingly" replied, "say it a little louder." (Leveritt Aff. ¶ 10).
• The day before the jail phone conversations outlined above, Nguyen and Ignacio filed a form with the U.S. Postal Service changing their mailing address from 3721 Tuscany Valley Drive, also in Louisville, ("Tuscany Valley Drive"), to Arbor Oak Drive. (Leveritt Aff. ¶ 9).
• On April 30, 2014, the Federal Bureau of Investigation forwarded to investigators a hand-written letter from Truong Nguyen ("Truong") dated April 29, 2014. (Leveritt Aff ¶12). Truong stated in the letter that he had personal knowledge that Nguyen received large shipments of narcotics from Oakland, California, every two weeks, that both Nguyen and Le possessed firearms, and that law enforcement should be careful when "dealing with these individuals." (Leveritt Aff. ¶ 12). Truong's letter also described Nguyen's drug operation consistent with Le's December 2012 statements. (Leveritt Aff. ¶¶ 12-13).
• Leveritt stated that: "[i]t is believed that [Arbor Oak Drive] is the new address that IGNACIO was referencing when she told NGUYEN that she had moved the 'firearms' and two safes, " and "[i]t is a common fact to ATF and law enforcement in general that persons who possess firearms generally tend to hold on to them for long periods of time ..." (Leveritt Aff. ¶ 10, 15).
Based on the application and Leveritt's affidavit, Judge Whalin issued the search warrant authorizing agents to search the Arbor Oak Drive residence for firearms and related objects. (Search Warrant 1, DN 61-5 at 1). A search of that residence was conducted on May 9, 2014, which found firearms as well as drugs. (Resp. to Mot. for Franks Hr'g & Mot. to Suppress 4, DN 61). On July 16, 2014, a grand jury sitting in the Western District of Kentucky returned an indictment against Nguyen with ten charges related to the firearms and drugs seized from the search. (Indictment, DN 13).
On October 1, 2014, Nguyen filed a Motion for Franks Hearing and Motion to Suppress Search. (Def's Mot. for Franks Hr'g & Mot. to Suppress, DN 55). Upon referral, Judge Whalin recommended the denial of Nguyen's motion. (DN 65 at 26). Nguyen timely filed objections to the recommendation (DN 67), which were heard by the Court on February 9, 2015 (Order, DN 74). This motion is thus fully briefed and ripe for a decision.
In the motion, Nguyen argues that “the affidavit in support of the warrant contains a false and misleading statement in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1968) . . . .” (Def.’s Mot. for Franks Hr’g & Mot. to Suppress 1-2). He also argues that “the affidavit fails to state probable cause to believe that evidence of crime is likely to be found in the place to be searched at the time of the ...