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United States v. Summers

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

November 14, 2017



          Thomas B. Russell, Senior Judge

         This matter comes before the Court upon Defendant Chicoby Summers' (“Summers”) Motion to Suppress. [DN 42.] The United States has responded, [DN 48], and Summers has replied. [DN 49.] This matter is now ripe for adjudication. For the following reasons, Summers' Motion is DENIED.

         I. Background

         This case arises out of a series of events occurring in early 2017, wherein law enforcement officers executed two separate search warrants in pursuit of “[m]arijuana and any other controlled substances in violation of KRS 218A, ” as well as drug-related paraphernalia. [DN 48-2, at 10.] The first search warrant at issue was for 9200 Bunsen Park Drive, Building 1, Apartment 208 in Louisville, Kentucky. [Id. at 9.] This warrant was executed on February 6, 2017. [Id. at 11.] The second search warrant covered the same type of contraband, also including heroin, and was for 7924 Zelma Fields Avenue in Louisville, Kentucky. [Id. at 2.] This warrant was executed on April 12, 2017. [Id. at 7.] These two searches, along with a separate incident in which Summers fled from police in his vehicle, allegedly produced, among other illicit items, three firearms. These three firearms provide the basis for the United States' indictment of Summers for being a person convicted of a felony, in possession of a firearm.

         In the indictment, the United States notes that Summers was convicted of Trafficking in a Controlled Substance First Degree and Tampering with Physical Evidence in Jefferson County, Kentucky Circuit Court in 2014. [DN 8, at 1.] The indictment goes on to allege that Summers illegally possessed three firearms: “a Taurus 9-millimeter handgun bearing serial number TJY69069, and ammunition, ” a second Taurus 9-millimeter handgun bearing serial number TJW83525, ” and a Zastava 7.62-caliber pistol, Model PAP M92PV, with serial number M92PV053161. [Id. at 1-2.] Summers challenges the constitutionality of the above-mentioned searches, arguing that “[t]he four corners of the affidavits offered in support of those warrants failed to establish probable cause in support of the warrants, ” and thus, any fruits derived from the searches must be suppressed. [DN 42, at 1.]

         II. Legal Standard

         The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV. In furtherance of protecting that interest, the Fourth Amendment demands that search warrants only issue upon a showing of probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause justifying the issuance of such a search warrant exists where, taking the totality of the circumstances, the affidavit supporting the warrant provides the issuant Magistrate with a “substantial basis…to believe ‘there is a fair probability that contraband or evidence of illegal activity will be found in a particular place.'” United States v. McNally, 327 F. App'x 554, 556 (6th Cir. 2009) (quoting Gates, 462 U.S. at 238). Further, in order “[t]o justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). This requires “a nexus between the place to be searched and the evidence sought.” Id. Therefore, the underlying affidavit which supports the search warrant must actually “contain adequate supporting facts about the underlying circumstances to show that probable cause exists for the issuance of the warrant.” United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (citing Whiteley v. Warden, 401 U.S. 560, 564 (1971)). Also, “[t]he supporting facts in an affidavit need not be based on direct knowledge and observations of the affiant, but may come from hearsay information supplied by an informant. Id. (citing Jones v. United States, 362 U.S. 257, 269-70 (1960)). The decision of Magistrate who initially issued the warrant will be reversed by this Court only if her “determinations were arbitrarily exercised.” United States v. Archibald, 685 F.3d 553, 557 (6th Cir. 2012).

         This Circuit has further interpreted Gates, instructing that a court, in reviewing the sufficiency of the evidence supporting probable cause, is “limited to examining the information contained within the four corners of the affidavit” in light of the totality of the circumstances. United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009). In order to deter future violations of the Fourth Amendment, the typical remedy for searches made with a defective warrant is suppression. See United States v. Woodbury, 511 F.3d 93, 99 (1st Cir. 2007). Notably though, suppression is not always warranted and, depending upon the circumstances, evidence may be saved from suppression where an officer acts in objectively good faith in executing an otherwise defective warrant. United States v. Leon, 468 U.S. 897, 922 (1984). This means that, in situations where “evidence [is] obtained in objectively reasonable reliance on a subsequently invalidated search warrant, ” the “marginal or nonexistent benefits [of suppression]…cannot justify the substantial costs of exclusion.” Id. In such a case, although probable cause is lacking, the fruits of the search need not be suppressed.

         III. Discussion

         A. February Warrant

         1. Probable Cause Determination

         Summers' principal point in support of his argument that probable cause does not exist on the face of the February warrant is that “[t]he affidavit completely failed to establish any connection between controlled substances and Apt. 208 [the residence searched, ]” or any connection to illegal activity more generally. [DN 42, at 1.] After careful review of the averments made in the affidavit to the February warrant, the Court disagrees. The affidavit explains that Summers was involved in a shooting in Louisville, Kentucky in November 2016, as were two other individuals, William Ron Stephenson Jr. and Keaun Mitchell. [DN 48-2, at 11.] On February 6, 2017, “Detectives observed…Stephenson, Michael Thompson, Stephonya Franklin, and Keaun Mitchell exit apartment 208….” [Id.] Detectives followed the car which these four individuals got into, and eventually pulled it over. “Upon Detectives removing listed subjects from aforementioned vehicle, Detective observed in plain view a Glock handgun in the center console area and an additional revolver in the back seat. Upon search incident to arrest, Detectives located several individually [wrapped] packs of marijuana (which is consistent with narcotic trafficking) on Keaun Mitchell's person.” [Id.]

         Moreover, Franklin indicated to police “that she ha[d] seen multiple guns in apartment 208 and said that there [was] a drum magazine on the night stand in the bedroom.” [Id.] Finally, the “[p]roperty manager stated that there [were] unknown people that [were] not on the lease that [were] coming and going from the location at all times.” [Id.] Thus, Summers' argument that the search of apartment 208 “for narcotics was based solely on the fact that Mitchell was seen exiting the apartment and Mitchell was found to have marijuana in his possession” does not give full weight to the averments made in the affidavit. Specifically, while Summers characterizes the marijuana found on Mitchell's person generally as “in his possession, ” or “Mitchell's private possession of contraband, ” the Detectives who made the stop and found the marijuana made a point of noting that the marijuana was wrapped in individual packages, indicating that the drugs were meant for sale rather than personal use, something which was included in the affidavit. This, coupled with the guns that were recovered and the fact that the property manager told police that people were coming and going from the apartment at all hours, indicates the possibility of a trafficking operation in apartment 208.

         To be sure, Summers correctly points out that, “[t]o justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place. There must, in other words, be a nexus between the place to be searched and the evidence sought.” Carpenter, 360 F.3d at 594 (internal quotation marks omitted). It is this “nexus” that Summers argues is lacking with respect to the affidavit to the February warrant and, consequently, why its fruits must be suppressed. In Carpenter, the Sixth Circuit held that an officer's affidavit was insufficient to establish probable cause to search a home located roughly 900 feet from an illegal marijuana growing operation. Id. at 593. In so holding, the Sixth Circuit made a note that the affidavit merely acknowledged the location of the marijuana plants and their proximity to the house in question. Importantly, the Sixth Circuit went on to provide that “[i]f [the] affidavit had stated that ...

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