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United States v. Hines

United States District Court, W.D. Kentucky, Louisville Division

July 5, 2017



          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on Defendant William Eugene Hines' motion to suppress evidence seized during a search of his residence on December 15, 2015. (DN 30.) Fully briefed, this matter is now ripe for decision. For the following reasons, the motion is GRANTED.

         I. Background

         In July of 2015, law enforcement officials in Louisville received information from a confidential informant, known as CS1, that Hines was selling large amounts of heroin from his residence on Eastlawn Avenue. (Search Warrant Aff. [DN 30-2] at 5.) Officers were familiar with Hines, as he had a criminal history involving narcotics trafficking, and other heroin traffickers had informed officers that Hines had previously been involved in the trade. (Id. at 6.) In October 2015, Officers conducted surveillance on the Eastlawn residence, which was owned by Hines' mother, and observed Hines entering and exiting the residence. (Id.)

         On December 14, 2015, CS1 contacted Louisville Metro Police Department (“LMPD”) Detective Daniel Evans and informed him that he or she had seen “an amount of heroin” inside the Eastlawn residence that day. (Id. at 5.) Another confidential informant, known as CS2, also contacted Evans on December 14 to inform him that Hines wanted to meet with CS2 that night at a night club to discuss a shipment of heroin. (Id. at 5.) Officers saw Hines leave the Eastlawn residence and drive to the night club, but they did not observe the meeting between Hines and CS2. (Id.) After this meeting, CS2 called Detective Evans in the early hours of December 15 and informed him that Hines would call CS2 around 1:00 p.m. on December 15 to inform CS2 that he was ready to sell CS2 a large amount of heroin. (Id.; Tr. Suppress. Hr'g [DN 41] 5:8- 10.) Detective Evans and CS2 agreed that CS2 would call Evans after Hines called CS2, as officers would then make entry into the Eastlawn residence. (Tr. Suppress. Hr'g [DN 41] 14:10- 13.)

         On the morning of December 15, Detective Evans prepared a search warrant affidavit for the Eastlawn residence, and the warrant was signed at 12:17 p.m. that day. (Search Warrant Aff. [DN 30-2] at 7; Tr. Suppress. Hr'g [DN 41] 8:12-14.) Detective Evans then called CS2 to see if Hines had been in contact, but CS2 did not answer. (Tr. Suppress. Hr'g [DN 41] 5:10-12.)[1]After arriving at the Eastlawn residence, officers then observed CS2 leaving the residence. (Id. at 5:13-16.) Having determined that CS2 “went rogue, ” officers conducted a traffic stop on CS2 after he left the residence, and a search revealed heroin and cocaine on CS2's person. (Id. at 14:3-8, 15:18-21.) Officers then made entry into the Eastlawn residence, where heroin and cocaine were both seized. (Seized Property Records [DN 31-4] at 1-2.) Hines was arrested and subsequently indicted on two counts of possession of a controlled substance with an intent to distribute. (DN 8.) He moved to suppress any evidence seized as a result of the search of the Eastlawn residence.[2] (DN 30). An evidentiary hearing was conducted, with the only testifying witness being Detective Evans. (DN 41.) The parties have filed post-hearing briefs. (DN 45, 48, 49, 53.)

         II. Discussion

         The grounds offered in support of Hines' motion to suppress have transformed as the case has progressed. Hines initially argued that the search of his residence actually began before the search warrant was signed by the state-court judge at 12:17 p.m. (DN 30.) However, the evidentiary hearing produced no evidence in support of this argument. Hines then argued in his post-hearing brief in favor of suppression that the search was invalid because, under Franks v. Delaware, 438 U.S. 154 (1978), Detective Evans should have told the magistrate who approved the search warrant that his source, CS2, was not returning his phone calls and may not be as reliable as initially believed. (DN 45, at 7-10.) However, as noted above, there was only one phone call placed by Detective Evans to CS2 that went unanswered: the 12:26 p.m. phone call, after the warrant had been issued. See supra note 1. Thus, there was no unreturned phone call that Detective Evans should have disclosed to the magistrate when seeking authorization for the search warrant, and Franks is inapplicable.[3]

         In his reply brief, though, Hines yet again offers a different argument in favor of suppression, now asserting that the search warrant in its original form was insufficient to support a finding of probable cause, regardless of whether the affiant included his doubts about the reliability of CS2. (DN 49.) In light of this argument and Sixth Circuit case law regarding how the reliability of a confidential informant must be established, the Court requested, and the United States submitted, a surreply addressing this argument. (DN 53.) The Court finds Hines' argument on this point to be meritorious, as the search warrant affidavit does not establish the reliability of the confidential informants in this case, and as such, it lacks probable cause.

         The affidavit for the search warrant clearly establishes that Hines is a known drug dealer, as it details Hines criminal past in narcotics trafficking, includes statements from other named individuals who verified Hines past involvement, and contains police corroboration of those statements. (Search Warrant Aff. [DN 30-2] at 5-6.) It also sufficiently establishes that Hines resides at the Eastlawn residence, as there is police corroboration of that fact as well. (Id.) However, while the Sixth Circuit has

acknowledged that in the case of drug dealers, evidence is likely to be found where the dealers live . . . [w]e have never held . . . that a suspect's status as a drug dealer, standing alone, gives rise to a fair probability that the drugs will be found in his home. Rather, we have required some reliable evidence connecting the known drug dealer's ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.

United States v. Brown, 828 F.3d 375, 383 (6th Cir. 2016) (citations omitted). Thus, something more is required for the warrant to be valid.

         At this point, CS1 and CS2, and what the affidavit says about them, become very important. The information provided by CS1 indicates that Hines was currently storing drugs in the Eastlawn residence, and CS2 further provided that Hines was going to make these drugs available for purchase at the residence the next day. (Search Warrant Aff. [DN 30-2] at 5.) This information would adequately provide a nexus between Hines, his residence, and evidence of narcotics trafficking so as to create a fair probability that drugs would be found in the home. However, when an affidavit relies upon information provided by a confidential informant, it is not sufficient to simply state what the informant said; information demonstrating why that informant should be believed must also be included. “Where . . . the bulk of the information in the affidavit comes from a confidential source, a court must consider the veracity, reliability, and the basis of knowledge for that information as part of the totality of the circumstances analysis.” United States v. Coffee, 434 F.3d 887, 893 (6th Cir. 2006) (citations omitted). This is usually a straight-forward enquiry, as Sixth Circuit precedent “clearly establishes that the affiant need only specify that the confidential informant has given accurate information in the past to qualify as reliable.” United States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001) (citations omitted). But here, CS1 is merely described as “a reliable confidential informant;” likewise, CS2 is described as “another reliable confidential source.”[4] (Search Warrant Aff. [DN 30-2] at 5.) This description raises two questions: first, is the description of the informants as “reliable” sufficient? And second, if the description is not sufficient, can the court still look to those statements in determining if probable cause exists?

         First, a description of a confidential informant as “reliable” is clearly insufficient under Sixth Circuit precedent to establish that an informant is, in fact, reliable. The most pronounced rule on what is sufficient to demonstrate the reliability of a confidential ...

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