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United States v. Higginbotham

United States District Court, E.D. Kentucky, Southern Division, London

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DUSTIN HIGGINBOTHAM, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         Law enforcement executed a search warrant at a London, Kentucky, residence where Dustin Higginbotham was on house arrest and obtained, among other things, a seven to eight ounce rock of methamphetamine and $128, 953.00. Higginbotham was subsequently charged with conspiracy and possession with the intent to distribute methamphetamine. Higginbotham now moves to suppress the evidence collected pursuant to the search warrant on staleness grounds. For the reasons set forth below, the Court ADOPTS IN PART but DENIES IN PART the Magistrate Judge's Recommended Disposition, and DENIES the Defendant's motion to suppress in light of the Leon good faith exception.

         I

         On the evening of May 21, 2016, Chief Wayne Bird of the Williamsburg Police Department was contacted by confidential informant Roy West, who had assisted Bird on multiple methamphetamine trafficking cases during the preceding two months. [R. 18 at 2.] West indicated to Bird that he had been at the residence of Dustin Higginbotham and had seen Higginbotham in possession of an approximately eight-ounce rock of methamphetamine. [Id. at 2-3.] After obtaining this information from West, Chief Bird met with Detective James Sizemore at the Laurel County Sheriff's Office, and the two men contacted Roy West via speakerphone. West again explained he had seen an approximately eight-ounce rock of methamphetamine at Dustin Higginbotham's residence. West described the location of the residence as well as the area within the residence where he had seen the contraband. [Id.] Shortly thereafter, Detective Sizemore learned from others at the Laurel County Sheriff's Office that Higginbotham was on home incarceration at the residence and had prior criminal convictions for drug trafficking. [Id. at 3.]

         The same evening all of this occurred, Detective Sizemore drafted the search warrant affidavit at issue in this action. [Id. at 4.] He then had the affidavit signed by Laurel Circuit Court Judge Steve Jones at 1:19 a.m. on May 22, 2016. [Id. at 5.] The relevant portions of the affidavit read:

The affiant, Det. James M. Sizemore, a peace officer of Laur[el] County Sheriff Department being duly sworn, states that he has and there is reasonable and probable grounds to believe and affiant does believe that there is now on the premises known and numbered as 204 Chippewa Lane London Ky 40741[, ] The residence where Dustin Higginbotham is currently on House Arrest[, ] AppoxGPS Coordinates are: 37.139531 -84.096248[, ] and more particularly described as follows:
. . .
Affiant has been an officer in the aforementioned agency for a period of 9 years and the information and observations contained herein were received and made in his capacity as an officer thereof.
On the 21 day of May, 2016, at approximately 11:00 a.m./p.m., [1] affiant received information from/observed: Received information from Chief Wayne Bird of Williamsburg Police Department that [an] informant told him that he was at Dustin Higginbotham residence. And Dustin Higginbotham had in his possession a rock of Crystal Methamphetamine that weighed 7 to 8 ounces in a tupperware bowl.
Acting on the information received, the affiant conducted the following independent investigation: Chief Wayne Bird's informant Roy West has worked for Chief Bird for about 2 months. And has assisted in 3 Trafficking cases for Crystal Methamphetamine. Dustin Higginbotham is on house arrest and has previous Trafficking in Controlled Substance charges[.]
Affiant has reasonable and probable cause to believe that grounds exist for the issuance of a Search Warrant, based on the aforementioned facts, information and circumstances and prays that a Search Warrant be issued, that the property be seized, or any part thereof, and brought before any court and/or retained subject to order of said court.

[See R. 18-1.]

         Law enforcement officers executed the search warrant just over an hour after it was signed. During the search, they located one pound of methamphetamine in a plastic container, approximately $128, 953.00 in a different container, pills, and a gun case with a magazine and ammunition. [Id. at 6.] Higginbotham was subsequently arrested on state drug trafficking charges, and on December 15, 2016, a grand jury returned a federal indictment charging Higginbotham with the knowing and intentional possession of methamphetamine with the intent to distribute. [R. 1.] The grand jury later returned a superseding indictment that added a conspiracy charge. [R. 24.]

         Although informant Roy West stated he personally observed the rock of methamphetamine in Higginbotham's residence, a report prepared by a Drug Enforcement Agency Task Force Officer several months later calls West's credibility into question. [See R. 18 at 6-7.] During an August 2016 interview memorialized in a DEA-6 report, West indicated he dropped a certain woman off near Higginbotham's residence and picked her up an hour later, when she told him that Higginbotham had seven to eight ounces of methamphetamine and significant amounts of money in the residence. [Id.] During this August interview, West admitted he never personally entered Higginbotham's residence. Instead, he simply claimed to have relayed to Chief Bird the information he obtained from the woman. [Id.]

         Mr. Higginbotham, through counsel, now moves to suppress all of the evidence seized pursuant to the May 22, 2016, warrant and Detective Sizemore's accompanying affidavit. [R. 15.] Higginbotham contends the warrant lacks probable cause because the affidavit provides no indication of when West, the confidential informant, actually visited the Higginbotham residence and saw methamphetamine there. [Id.] Pursuant to the Court's local practice, the matter was referred to United States Magistrate Judge Hanly A. Ingram for a recommended disposition. After review, Judge Ingram recommended granting the motion to suppress based on the affidavit's staleness. Judge Ingram also concluded the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), did not apply to prevent ...


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