United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
matter is before the Court on Defendant's Motion to
Suppress (including a motion for a Franks hearing)
[DE 26]. The government responded and the Court held a
hearing on December 22, 2017. For the reasons stated on the
record and summarized below, the motion was
14, 2017, Detective Jody Kizis of the Lexington Division of
Police applied for and received a search warrant to search
the residence of Defendant. The search warrant Affidavit, the
full text of which is in the record at ¶ 39, Ex. A,
relayed that the police were dispatched to Defendant's
neighbors' residence by the occupant, Derrick Stroud. Mr.
Stroud told the officer he had just had an argument with
Defendant and that Defendant approached him with two other
men, and that Defendant had a chrome handgun with a black
handle in his waistband. Mr. Stroud also stated that
Defendant told him he was going back into his house to
retrieve more firearms, and he would be back. After
unsuccessfully attempting to contact anyone inside
Defendant's residence, the officer had a conversation
with another witness, Sarah Gillim. Ms. Gillim stated she saw
Defendant with a 1911 handgun in his hand, walking between
his property and Mr. Stroud's property. She further
stated she heard Defendant state: “Look me up on the
Internet, look what I did to those people. I can do the same
to you.” Eventually Defendant and several other people
came out of the residence, including one person possessing a
handgun (but not handgun previously described by the
witness). The search warrant Affidavit also discusses that
officer viewed a video on YouTube which featured Defendant in
possession of what appeared to be firearms.
basis of the information in the Affidavit, the officers at
the scene obtained a search warrant. Pursuant to the warrant
the officers seized a number of items, including the handgun
which forms the basis of this case.
Probable Cause Supported the Search Warrant
argued the finding of probable cause in this case relied
almost entirely on the statements of Ms. Gillim and Mr.
Stroud, and the officer did not disclose that they are in a
romantic relationship, nor did the office disclose that Mr.
Stroud, Ms. Gillim, and Mr. Lax have had a long-standing
feud. Defendant argues this feud and the romantic
relationship provided the motivation for Mr. Stroud and Ms.
Gillim to band together to lie to the police about Defendant.
Defendant also argues that the Affidavit was drafted with
“reckless disregard” because the officer omitted
the fact that Mr. Stroud had armed himself with a shotgun
during this verbal altercation with Defendant. Defendant argues
it was actually Mr. Stroud who made threats against him.
Court needs to “look only to the four corners of the
affidavit” to determine whether the search was
supported by probable cause. United States v.
Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (citing
United States v. Pinson, 321 F.3d 5589, 565 (6th
Cir. 2003)). Because the search at issue occurred pursuant to
a search warrant, the Defendant “has the burden of
making a prima facie case that the search was illegal.”
United States v. Franklin, 284 F.App'x 266, 275
(6th Cir. 2008). Defendant cannot meet this burden.
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. Loggins, 777 F.2d
336, 338 (6th Cir. 1985) (per curiam).
making this determination, the magistrate's decision
“should be afforded great deference.” United
States v. Algie, 721 F.2d 1039, 1041 (6th Cir. 1983),
United States v. Coffe, 434 F.3d 887, 892 (6th Cir.
2006). Such deference ensures that “an issuing
[judge's] discretion [will] only be reversed if it was
arbitrarily exercised.” See United States v.
Allen, 211 F.3d 970, 973 (6th Cir. 2000). The reviewing
court must uphold the issuing judge's probable cause
determination if a “substantial basis” existed
for the judge to conclude that a search would uncover
evidence of wrongdoing. Gates at 2331;
Allen at 973.
“determination of whether probable cause existed at the
time of the search is a commonsense, practical question to be
judged from the totality of the circumstances.” Line by
line scrutiny of the supporting affidavit(s) is also
inappropriate. United States v. Jackson, 470 F.3d
299, 306 (6th Cir. 2006) (citing United States v.
Woosley, 361 F.3d 924, 926 (6th Cir. 2004)). An
affidavit must be “judged on the adequacy of what it
does contain, not on what it lacks, or on what a critic might
say should have been added.” United States v.
Allen, 211 F.3d 970, 975 (6th Cir. 2000)
some facts were not included in the Affidavit, there were
sufficient facts to make a determination that probable cause
existed. One witness summoned officers to his home and
identified Defendant as having a hand gun, and stating he was
going back into the residence to retrieve more firearms. All
of these occurred after a verbal altercation. A second
witness added that Defendant said, “Look me up on the
Internet, look what I did to those people. I can do the same
to you[, ]” which was threating in nature. The fact
that these two witnesses were engaged to be married does not
change the analysis. It is not even relevant. Nor does it
matter whether Mr. Stroud and Mr. Lax had a previous
“long-running feud.” Defendant had only living
next door to Mr. Stroud for approximately one month, so any
“feud” between the two neighbors was necessarily
new, not “long-running” as alleged by Defendant.
the Affidavit had disclosed the prior or ongoing
disagreements between the two men, the facts still support a
finding that probable cause existed sufficient to issue the
search warrant. The fact remains that two witnesses described
seeing Defendant with a firearm, and one witness heard him
say that he was going back into his residence to retrieve
more firearms, and the other witness heard Defendant say
“Look me up on the Internet, look what I did to those
people. I can do the same to you[, ]” presumably a
reference to the news articles detailing Defendant's
prior involvement in a shooting. Based on the statements by
the witnesses, probable cause existed to search
Defendant's residence for firearms.
Sixth Circuit Court of Appeals has held that “a known
informant's statement can support probable cause even
though the affidavit failed to provide any additional basis
for the informant's credibility and the informant has
never provided information to the police in the past . . .
.” United States v. Kinison, 710 F.3d 678,
682-83 (6th Cir. 2013). “[T]his conclusion is even
clear when the known informant's decision to go to the
police has also subjected [him] or her to potential
prosecution.” Id. at 6839 citing United
States v. Couch,367 F.3d 557, 560 (6th Cir. 2004)
(“The statements of an informant . . ., whose identity
was known to the police and who would be subject to
prosecution for making a false report are thus entitled to
far greater weight than those of an anonymous source.”)
(quoting United States v. May, 399 F.3d 817, 8240-25
(6th Cir. 2005)). The officers on the scene obtained the
identity of Mr. Stroud and Ms. Gillim, thus subjecting them