United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
matter is before the Court on Defendant Luis R.
Morales-Montanez's Motion to Suppress. (DE 33). Defendant
Jessica R. Acosta filed a response requesting to join
Morales-Montanez's motion (DE 37), which the Court will
permit, and the United States has filed a response (DE 40).
Because the warrant was based on probable cause,
Morales-Montanez and Acosta's motion to suppress is
and Acosta are charged with three counts of distributing a
controlled substance in violation of 21 U.S.C. §
841(a)(1) and one count of possessing a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1).
December 7, 2010, Detective Matt Evans obtained two search
warrants from the Fayette District Court to search the
residences located at 2428 Larkin Road and 2504 Larkin Road
#172, Pegasus Place Apartments, both in Lexington, Kentucky.
(DE 40-1, DE 40-2). In the affidavit for the warrant, largely
identical except for the place to be searched, Detective
Evans stated he received information from a qualified
confidential informant (CI) in January 2016 that a Hispanic
male known as “Luis” was selling large amounts of
marijuana. Detective Evans observed “Luis”
operating a white Chevrolet pickup truck with license plate
192-VCX. The CI later notified Detective Evans that
“Luis” had changed his license plate to 024-VYD.
Detective Evans ran this registration and found it was
registered to Morales-Montanez. Subsequently, the CI
positively identified Morales-Montanez in a driver's
license photo as the subject (DE 40-1, at 2; DE 40-2, at 2).
Evans proceeded to conduct an independent investigation into
Morales-Montanez. During the last week of September, he and
other investigators located Morales-Montanez operating the
white Chevrolet pickup truck with a female Hispanic, later
identified as Jessica Acosta. After following the pair to
2428 Larkin Road, he observed Acosta and Morales-Montanez
enter the front door of the residence using a key. Detective
Evans then followed them to Pegasus Place apartments where he
observed them enter apartment #172. After an hour,
Morales-Montanez and Acosta left, locking the apartment with
a key. They then returned to their vehicle and engaged in
evasive driving that Detective Evans described as a common
practice for drug traffickers before returning to 2428 Larkin
Road. After spending a few minutes in the residence, they
drove to meet with the CI and provided him/her
methamphetamine. (DE 40-1, at 3; DE 40-2, at 3).
Evans continued to conduct surveillance of 2428 Larkin Road
and determined that the couple was living there. The property
manager of Pegasus Place apartments advised Detective Evans
that apartment #172 was rented to Jessica Acosta. On her
rental application she listed her employment as housekeeper,
but Detective Evans never witnessed Morales-Montanez or
Acosta report to any legitimate employment during his
surveillance of the residences. (DE 40-1, at 4; DE 40-2, at
early December, within forty-eight hours of applying for the
warrant, Detective Evans contacted the CI about conducting a
narcotics transaction with Morales-Montanez. Detective Evans
observed Morales-Montanez exit his residence and drive to
Pegasus Place apartments and enter an apartment in the
building housing apartment 172. After spending ten minutes
inside, Morales-Montanez drove back to 2428 Larkin Road
before driving to meet the CI and provide him marijuana.
Based on that information, Detective Evans believed that the
residences were being used to store illegal narcotics and
proceeds from their sale and sought to search them for
evidence of such activity. (DE 40-1, at 4; DE 40-2, at 4).
Morales-Montanez, later joined by Acosta, has filed a motion
to suppress all evidence seized pursuant to these search
warrants on the grounds that they were not supported by
makes two arguments, both alleging that the affidavit lacked
probable cause, in support of his motion to suppress. First,
that the affidavit did not establish a sufficient nexus
between alleged criminal activity and the place to be
searched. Second, that the information contained in the
affidavit was stale.
cause exists “when there is a ‘fair probability,
' given the totality of the circumstances, that
contraband or evidence of a crime will be found in a
particular place.” United States v. Greene,
250 F.3d 471, 479 (6th Cir. 2001) (quoting United States
v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). This
nexus requirement is a fundamental element of probable cause,
ensuring that a search will only be authorized when the
circumstances indicate evidence of illegal activity will be
found at the place to be searched. See United States v.
Carpenter, 360 F.3d 591, 594 (6th Cir. 2004). A
reviewing court must afford “great deference” to
the probable cause determination of a state-court judge, only
reversing the issuing judge's discretion if it was
arbitrarily exercised. United States v. Coffee, 434
F.3d 887, 892 (6th Cir. 2006) (first citing then quoting
United States v. Allen, 211 F.3d 970, 973 (6th Cir.
2000) (en banc)).
affidavits on which the warrants were based established a
sufficient nexus between the suspected drug trafficking
activity and the residences at 2428 Larkin Road and 2504
Larkin Road #172, Pegasus Place Apartments . Morales-Montanez
argues that the nexus requirement was not met “because
of the absence of any observation of deliveries of drugs to
the residence, no mention of frequency or any visitors to the
residence and no controlled buys occurring at either
residence.” (DE 33-1, at 3). But these objections do
not show that a nexus was not established. It is “a
reasonable inference that ‘in the case of drug dealers,
evidence is likely to be found where the dealers
reside.'” United States v. Goward, 188
Fed. App'x 355, 358-59 (6th Cir. 2006) (citing United
States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005) and
United States v. Higgins, 302 F.3d 384, 394 (6th
Cir. 2002)); see also United States v. Jones 159
F.3d 969, 935 (“The recited statements supporting the
search warrant and the fact that ‘[i]n the case of drug
dealers, evidence is likely to be found where the dealers
live, ” support a finding of probable cause to support
the issuance of the warrant.”) (internal citations
omitted) (quoting United States v. Lamon, 16 F.3d
1429, 1188 (6th Cir. 1994)). During the time spent
investigating and surveilling the residences, officers
observed Morales-Montanez, on two separate occasions and once
with Acosta, leave his residence at 2428 Larkin Road and
visit Pegasus Place apartment #172 before completing a drug
transaction. The affiant also confirmed that the residences
were occupied by Morales-Montanez and Acosta. The combination
of evidence that Morales-Montanez and Acosta were dealing
drugs, lived in the residences, visited both residences prior
to drug deals, and “the affiant-officer's
experience that drug dealers keep evidence of dealing at
their residence . . . establishes probable cause for the
issuance of a warrant to search that residence.”
Goward, 188 Fed. App'x at 358.
cause does not provide an ongoing license for officers to
conduct a search, but instead expires or goes stale after a
period of time. The time at which probable cause expires is
“determined by the circumstances of each case and
depends on the inherent nature of the crime.”
United States v. Hython, 443 F.3d 480, 485 (6th Cir.
2006) (first citing Sgro v. United States, 187 U.S.
206, 210-11; then citing United States v. Henson,
848 F.2d 1374, 1382 (6th Cir. 1988). The sale of drugs out of
a residence is not inherently an ongoing or continuous
criminal activity, but instead exists on a continuum that
must be judged by the facts of each case. See
Hython, 443 F.3d at 485.
information in the affidavit was not stale. While the two
drug transactions referenced in the affidavit occurred more
than two months apart, the second drug transaction occurred
within forty-eight hours of the application for the search
warrant. Even accepting that the first transaction no longer
established probable cause, but see United States v.
Greene,250 F.3d 471, 481 (6th Cir. 2001) (finding
information was not stale when last drug buy occurred
twenty-months prior), the second more recent transaction
established probable cause that the residences were being
used for drug trafficking at the time the warrant was issued.
See United States v. Spikes,158 F.3d 913, 923 (6th
Cir. 1998) ...