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United States v. Tomes

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

January 29, 2018




         This matter comes before the Court on several motions filed by Defendant John G. Tomes, Jr., [R. 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137], to which the United States (“the Government”) has responded, [R. 145, 147, 148, 149, 150, 151, 152, 153, 154]. Fully briefed, these matters stand ripe for adjudication. The Court will address each motion in turn.


         I. Motion to Compel the Government to Produce Statements of Co-Defendant

         Tomes moves the Court to compel the Government to produce all statements made by his former co-defendant, Jamaule Hollis, to law enforcement officers. [R. 127 at 1.] Federal Rule of Criminal Procedure 16(a)(2) states:

Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.

Fed. R. Crim. P. 16(a)(2). As Hollis's statements could be considered an internal document or a statement made by a prospective government witness, Tomes's motion is denied. See, e.g., United States v. Higdon, 68 F.Supp.3d 807, 817 (E.D. Tenn. 2014) (holding that, under Rule 16 and the Jencks Act, “the law does not entitle the Defendant to inspect the statements of her codefendants or other uncharged coconspirators unless and until they testify at trial”); United States v. Perkins, 383 F.Supp. 922, 930 (N.D. Ohio 1974) (holding that statements of a co-defendant are not discoverable under Rule 16, and statements of witnesses or prospective witnesses are not discoverable until after direct examination under 18 U.S.C. § 3500).

         Tomes also claims that he should be provided these statements pursuant to Brady v. Maryland[1] because if Hollis failed to identify Tomes as a drug supplier, it could prove to be exculpatory. [R. 127 at 2.] In response, the Government states that they will disclose any exculpatory or impeachment material in time for Tomes to use it at trial. [R. 151 at 1.] However, the Government also explains that Hollis's statements contain no exculpatory evidence that would trigger its duty to disclose them under Brady. [Id. at 2.] As cited by the Government, the Sixth Circuit has stated that “the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure.” United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988); see also United States v. Shanklin, No. 3:16-CR-85-TBR, 2016 WL 7395304, at *2 (W.D. Ky. Dec. 21, 2016) (Russell, J.) (quoting Presser, 844 F.2d at 1281). As the Government has determined that the statements are not exculpatory, the statements are not required to be disclosed under Brady.[2] Thus, Tomes's Motion to Compel, [R. 127], is DENIED.

         II. Motion to Suppress

         Tomes moves the Court to suppress all evidence obtained directly or indirectly pursuant to a search warrant concerning three residences in Louisville, Kentucky. [R. 129 at 1.] Tomes argues that this evidence should be suppressed because the affidavits prepared by Jeffersontown Police Detective Steven Presley in support of the warrants failed to include information regarding the “lack of veracity and reliability” of the known informant, Jamaule D. Hollis. [Id.] Thus, Tomes reasons, “this information denied the issuing judge a substantial basis to conclude that probable cause existed.” [Id. at 1-2.] The Government responds that Tomes's claim is incorrect because the affidavit includes information regarding Hollis's reliability. [R. 145 at 3.] The Court agrees with the Government.

         A. 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 the 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.

         B. Information Regarding Hollis's Reliability

         In short, Tomes's argument that Presley's affidavit contains no information regarding Hollis's reliability can be proven false simply by reading the affidavit. The affidavit describes Hollis's criminal history as well as his activities as a drug dealer, giving the judge an opportunity to assess the credibility of Hollis's account. [See 145-1 at 4-6 (Presley Affidavit).] Furthermore, Presely's affidavit includes added indicia of reliability, such as the fact that Hollis is a named informant, Hollis makes statements against his penal interest, and the police were able to corroborate the addresses of the “stash houses” given to them by Hollis.[3] [Id.] In short, the Court finds that the affidavit included information regarding Hollis's reliability, and, therefore, DENIES Tomes's Motion to Suppress, [R. 129].[4]

         III. Motion for a Franks Hearing

         As an alternative to his Motion to Suppress, Tomes moves the Court to grant an evidentiary hearing pursuant to Franks v. Delaware[5] due to a false statement and material omissions allegedly contained in the affidavit in support of the search warrant. [R. 128.]

         To merit a Franks hearing, the movant must make “a substantial preliminary showing” that (1) the affiant included a statement, either deliberately false or with reckless disregard for its truth, in the warrant affidavit, (2) without which there could be no finding of probable cause. United States v. Pirosko, 787 F.3d 358, 369 (6th Cir.), cert. denied, ___U.S. ___, 136 S.Ct. 518 (2015). Warrant affidavits “carry with them ‘a presumption of validity, ' ” and so the challenger's attack “must be more than conclusory . . ..” United States v. Stuart 507 F.3d 391, 396 (6th Cir. 2007) (quoting Franks, 438 U.S. at 171). That is, he must point to specific false statements and then “accompany his allegations with an offer of proof, ” usually in the form of supporting affidavits. United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). Moreover, “[t]he movant must also show that the allegedly false statements were necessary for the magistrate's determination of probable cause.” United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008). Thus, “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Id. (quoting Franks, 438 U.S. at 171-72).

         A. False Statement

         Tomes claims that Detective Steven Presley's affidavit in support of a search warrant concerning a residence and a car in Louisville amounted to a false statement due to a discrepancy between Presley's affidavit and the affidavit of Special Agent Milton Galanos. [See R. 128 at 3-5.] Both affidavits describe surveillance of Jamaule Hollis's residence, during which a vehicle registered to Tomes arrived. However, Galanos did not immediately identify the driver as Tomes, whereas Presley described the driver as Tomes and then reported that Tomes subsequently drove to a different location. [Id.] Tomes claims that Presley included these false statements in order to bolster Hollis's statement that Tomes provided him with crystal methamphetamine. [Id. at 4-5.]

         The Government successfully negates Tomes's argument on three different grounds. First, the Government points out that Presley never attributed the identification of Tomes in his affidavit to Galanos. [R. 145 at 7-8.] Therefore, the fact that Galanos did not identify the man in Tomes's car does not necessarily make Presley's identification of Tomes false. Secondly, even if this was a false statement, the Government argues that Tomes still has not satisfied the second prong of Franks. [Id.] In other words, if the Court struck Presley's identification of Tomes from the affidavit, there would still be probable cause on other grounds, such as: (1) Hollis was named in the affidavit and saw the evidence in the immediate past, [6] (2) the police corroborated two addresses used as “stash houses” given by Hollis through surveillance, [7] and (3) the affidavit contained evidence showing that Tomes was a drug dealer and there was drug activity near his home.[8] Lastly, even if the affidavit lacked probable cause, suppression of the evidence would still not be warranted due to the good faith exception, as established by the Supreme Court in United States v. Leon.[9] In Leon, the Supreme Court provided four circumstances in which the good faith exception would not apply, however, Tomes provides no proof that this case falls within one of those circumstances.[10]

         B. Material Omissions

         Tomes also claims that Presley made several material omissions in his affidavit concerning Hollis's reliability as an informant. [R. 128 at 5-8]. Specifically, Tomes argues that Presley omitted that the Louisville Metro Police Department (LMPD) lost contact with Hollis and that, according to Galanos's affidavit, Hollis continues to engage in illicit drug activity. [Id. at 6.] It should be noted that the Sixth Circuit “has repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008).

         Once again, the Government successfully attacks Tomes's argument that Presley omitted information regarding Hollis's reliability on three grounds. First, the Government emphasizes that Hollis is a named informant and subject to prosecution for providing false information. [R. 145 at 3.] The Sixth Circuit has stated not only that “naming an informant is often, but not always, an indicator of reliability, ”[11] but also that a named informant can be more reliable if he is subject to prosecution for fabricated information.[12] Secondly, there were several statements from Hollis in Presley's affidavit that were against Hollis's penal interest. The Supreme Court has held that such admissions “carry their own indicia of credibility.” United States v. Harris, 403 U.S. 573, 583 (1971). Lastly, the Government proves that Presley did outline Hollis's current criminal activity as a drug dealer, as well as his criminal history, by quoting directly from Presley's affidavit. [R. 145-1 at 5-6.] Clearly, there was ample information available for the issuing judge to be advised on the possible effect of Hollis's criminal activities on his reliability as an informant.

         In sum, Tomes has failed to make a “substantial preliminary showing” that (1) the affiant included a statement, either deliberately false or with reckless disregard for its truth, in the warrant affidavit, (2) without which there could be no finding of probable cause. Pirosko, 787 F.3d at 369. Therefore, Tomes's Motion for a Franks Hearing, [R. 128], is DENIED.

         IV. Motion to ...

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