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United States v. Barron

United States District Court, E.D. Kentucky, Central Division, Lexington

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NESTOR BARRON, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE.

         Defendant Nestor Barron has moved to suppress the fruits of law enforcement's July 1');">18, 201');">17, search of 629 Dartmoor Drive in Lexington.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] [Record No. 31');">1] The motion was referred to United States Magistrate Judge Robert Wier for review and issuance of a report and recommendations pursuant to 28 U.S.C. § 636(b)(1');">1)(B). Neither party requested an evidentiary hearing. After fully considering the record, Magistrate Judge Wier issued a Recommended Disposition on October 1');">12, 201');">17, concluding that the defendant's motion should be denied. [Record No. 53');">53');">53');">53] Defendant Barron thereafter filed objections to the Recommended Disposition. [Record No. 54');">54');">54');">54]

         Having reviewed the record along with the Recommended Disposition and the defendant's objections, the Court concludes that the motion to suppress should be denied.

         I.

         Lexington Police Detective Matt Evans swore to the affidavit at issue and, on July 1');">17, 201');">17, obtained a warrant to search the residence at 629 Dartmoor Drive, two vehicles, and the person of Fernando Rafael Lara Salas.[2] [Record No. 31');">1-1');">1] In his affidavit, Detective Evans described an investigation of a large-scale cocaine trafficking organization that untimely led police to Lara Salas in early 201');">13. Id. at p. 5. After police executed a search warrant at a residence in Lexington and seized 45 kilograms of cocaine, examination conducted in April 201');">14, determined the seized drugs contained Lara Salas's fingerprints. Id. Lara Salas was subsequently indicted on federal drug trafficking charges, pled guilty, and was deported. Additionally, Detective Evans described the prior surveillance and interaction with Lara Salas that took place in late 201');">13. He stated that Lara Salas had been living in Lexington, but was later arrested in Maryland for attempting to coordinate a two-kilogram cocaine drug delivery. Id. Evans travelled to Maryland on November 1');">12, 201');">13, under the assumption that Lara Salas wanted to cooperate with Lexington Police. However, Lara Salas changed his mind and no longer wished to speak to Detective Evans upon his arrival. Id.

         In April 201');">16, Detective Evans was “notified by several qualified CI's that Fernando Garcia had returned to Lexington and had continued to sell large amount of cocaine and heroin.” Id. On the following page of the affidavit, Evans averred that Lara Salas has been arrested a number of times in Lexington under several aliases. He further indicated that the previously-mentioned CI's had heard that Lara Salas and his wife Nancy had recently purchased a house and that Nancy drove a red Toyota Camry while Lara Salas drove a green Chevrolet Avalanche. Id. at 6.

         During the first week of August (201');">16), [3] Detective Evans was conducting surveillance in the area of Dartmoor Drive, in search of Humberto Alvarez, a fugitive from a previous case. Id. During this surveillance, Evans located a red Toyota Camry, a Blue Chevrolet Avalanche, and a grey Dodge Charger parked in the driveway of 629 Dartmoor Drive. Id. He then determined that the Toyota and Dodge were registered to either Lara Salas or Nancy. Id.

         Detective Evans further “conducted surveillance at 629 Dartmoor Drive on numerous occasions at all hours of the day and night and [] confirmed that it is Nancy and [Lara Salas'] primary residence.” Id. Evans noted that he has observed both Lara Salas and Nancy “coming and going” from the residence on multiple occasions. Id. He further indicated that, based on the fact that Lara Salas and Nancy have not told any of the CI's about their residence, he believed that this is where they store “cocaine, heroin, and or large sums of cash.” Id.

         Detective Evans contacted Cincinnati DEA TFO Chad Whitford on January 1');">16, 201');">17, and informed him of the Lara Salas' drug trafficking operation and that, according to Detective Evans' CI's, Lara Salas had several customers in the Cincinnati area. Id. at p. 7. The affidavit then outlines facts demonstrating that Lara Salas would often travel north to 1');">1429 Ambrose Avenue in Cincinnati, Ohio, where he and his associate Jorge Macias would meet with Robbie Warren. Id.

         On January 1');">16, 201');">17, Lara Salas, his son, Macias, and another unknown Hispanic male were observed arriving at the Cincinnati address and using a key to enter the premises. Id. Warren then arrived at the address and what was believed to be a money exchange occurred. Independent investigation of Warren (which included observed daily trips to the Ambrose Avenue location) followed by what appeared to be drug drops, led Detective Evans and assisting investigators to “believe that [Lara Salas], his partner Jorge Macias, and his associates are supplying Robbie Warren with large amount of narcotics. Id.

         Next, Detective Evans advised that a CI contacted and advised him that Lara Salas provided the CI with a quantity of heroin, which was provided as a representative sample of a much larger amount the two were selling, advising that that they had “kilogram quantities of heroin for sale.” Id. at p. 8. Additionally, Detective Evans stated that defendants from a long term investigation of a large drug trafficking organization were arrested and interviewed in April 201');">17. The arrestees advised that they had sold Lara Salas multiple kilograms of heroin on multiple occasions. Detective Evans also explained that, in June 201');">17, another defendant from a separate drug trafficking investigation advised that Lara Salas contacted him seeking to purchase multiple kilograms of cocaine. Id. at p. 9. The high-level cocaine trafficker told Lara Salas that he had “not received his drug load yet[, ]” but that when he did, he would contact Lara Salas. Id. He then advised Detective Evans that, when he called Lara Salas a couple days later to see “if he was still looking to purchase several kilograms of cocaine[, ]” Lara Salas told him that he already received his supply form another source. Id.

         Finally, within 72 hours of executing the affidavit, Detective Evans was contacted be a qualified CI who advised that Lara Salas and Macias had recently received another drug shipment. Id. The CI set up a delivery of a quantity of heroin, which Detective Evans later observed. Id. Detective Evans also observed Macias driving Lara Salas's Chevrolet Avalanche to the meeting with the CI, where Macias provided the CI with a “quantity of suspected heroin and advised that he and [Lara Salas] had large amounts for sale.” Id. Based on all the information contained in the affidavit, Detective Evans stated that there was probable cause to believe that there would be evidence of drug trafficking located at Lara Salas residence at 629 Dartmoor Drive. Id.

         Based on this affidavit, Judge Thornton issued the requested search warrant on July 1');">17, 201');">17. Id. at p. 1');">1. However, Barron contends that the application for the search warrant did not establish probable cause. Id.

         The Fourth Amendment to the United States Constitution only allows the issuance of a warrant upon a showing of probable cause. U.S. Const. amend. IV. “Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006). When determining whether probable cause exists for a warrant, an issuing judge must consider the totality of the circumstances. United States v. Hammond, 351');">1 F.3d 765, 771');">1 (6th Cir. 2003). A reviewing court should pay great deference to the issuing judge's probable cause determination. Illinois v. Gates, 1');">13');">462 U.S. 21');">13, 236 (1');">1983). The court will uphold the issuing judge's decision if she had a ‚Äúsubstantial ...


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