United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION & ORDER
Rebecca Grady Jennings, District Judge.
matter comes before the Court on Defendant Jihad Haqq's
Motion to Suppress and Motion for Ruling on Defendant's
Motion to Suppress. [DE 17, Def.'s Mot. to Suppress; DE
31, Def.'s Mot. for Ruling]. Defendant filed a Motion to
Suppress on December 18, 2017. [DE 17]. Plaintiff, the United
States of America, filed a response to the Motion to Suppress
on January 2, 2018, [DE 23, Pl.'s Resp. Mot. to
Suppress], and a Reply was filed on January 17, 2018. [DE 19,
Def's Reply to Resp. to Mot. to Suppress]. Defendant
filed a Supplement to the Reply to the Motion to Suppress on
January 18, 2018, asserting that the United States failed to
respond to certain arguments. [DE 21, Def.'s Suppl. To
the Reply to the Mot. to Suppress]. On February 6, 2018,
United States Magistrate Judge Dave Whalin granted the United
States fourteen days to respond to those arguments, [DE 22,
Order], and the United States filed a Supplemental Response
to the Motion to Suppress on February 20, 2018. [DE 23,
Pl.'s Suppl. Resp. to Mot. to Suppress].
February 21, 2018, Magistrate Judge Whalin granted an
evidentiary hearing on the limited issue of the voluntariness
of Mr. Haqq's statements to law enforcement under
Miranda. [DE 24]. The hearing was held on May 10, 2018. [DE
28]. The parties subsequently agreed that the statements
which were the subject of the hearing would be excluded. [DE
29]. Then, on May 21, 2018, Defendant filed a Supplement to
his Motion to Suppress. [DE 30, Def.'s Suppl. Mot. to
Suppress]. On June 22, 2018, Defendant moved for a ruling on
the remaining issues in his Motion to Suppress. [DE 31,
Def.'s Mot. for Ruling]. On July 9, 2018, Magistrate
Judge Whalin issued a Findings of Fact, Conclusions of Law,
and Recommendation (“R&R”) on the remaining
issues, recommending that the Motion to Suppress be denied.
[DE 32]. Objections were timely filed by Defendant. [DE 33].
These matters are now ripe for adjudication.
reasons set forth below, the Court DENIES Defendant's
Motion for Ruling on Defendant's Motion to Suppress as
MOOT [DE 31], OVERRULES Defendant's Objections [DE 33],
and ACCEPTS Magistrate Judge Whalin's R&R with
modification [DE 32].
FACTUAL AND PROCEDURAL BACKGROUND
facts, not objected to, are taken from the R&R. On April 26,
2017, Sergeant Thomas Schardein of the Louisville Metro
Police Department sought, and received, a warrant to search
6725 Strawberry Lane, Louisville (the “Strawberry Lane
Residence”). [DE18-2]. That warrant, and Sergeant
Schardein's six-page affidavit in support of that
warrant, set forth the following information garnered through
law enforcement's investigation.
April 14, 2017, Gayle Hayes was interviewed by Oldham County
Police Department (“OCPD”) officers in connection
with the suspected heroin overdose of Peyton Schutte, a
friend of Ms. Hayes. [DE 18-2, at 5]. Ms. Hayes reported that
she had purchased heroin from a male named “TC”
twice on March 11, 2017, the day prior to Ms. Schutte's
overdose, and that on the second occurrence, she and Ms.
Schutte had used the heroin from T.C. together.
[Id.] At that interview, Ms. Hayes identified the
Strawberry Lane Residence as the possible residence of TC.
the interview, OCPD officers executed a search warrant on Ms.
Hayes's telephone, which showed five phone calls and six
text messages with “TC” at 502.975.4541; the text
messages appeared to concern heroin sales. An investigation
identified Jihad A. Haqq, who was known to go by
“TC” and “Tom-Cat, ” as possibly
living at the Strawberry Lane Residence.
April 19, 2017, Sergeant Schardein met with Ms. Hayes, who,
when told that he was investigating TC, responded “Oh
my drug dealer.” [Id., at 7]. Ms. Hayes
identified a photo of Mr. Haqq as T.C. and provided
information about him, including that she had been purchasing
heroin from him for approximately three years and that she
had followed T.C. after deals and observed him going to the
Strawberry Lane Residence. [Id.] Ms. Hayes recounted
that she had never known him to sell narcotics from that
location and that he told her he specifically avoided
conducting narcotics-related business at home to avoid
detection by law enforcement. [Id.] Ms. Hayes
further told officers that T.C. had been operating a green
pick-up truck while selling her heroin, and that she had seen
this vehicle at 6725 Strawberry Lane. [Id.]
investigation then determined that two businesses were
registered to Mr. Haqq at the Strawberry Lane Residence, as
well as five vehicles, including a green 1997 Dodge Truck,
which officers had visually identified at the property on
April 17, 2017. [Id., at 9]. Finally, through a
subpoena of Mr. Haqq's telephone records, Sergeant
Schardein determined that Mr. Haqq had been in frequent
contact with telephone No. used by individuals who either
trafficked in, or overdosed on, narcotics. Specifically, Mr.
Haqq's No. was used 375 times to contact an individual
known to have overdosed several times, 279 times to contact
another individual known to have overdosed, 81 times to
contact a third individual known to have overdosed, and 54
times to contact a fourth individual, who at the time of the
affidavit had pending charges for trafficking in controlled
April 26 2017, Sergeant Schardein sought, and received, a
warrant to search the Strawberry Lane Residence for illegal
narcotics, cellular telephones, “which may show contact
with the potential co-defendants . . . or the victim, ”
other cellular telephone or electronic devices used to
conduct illegal activities, proceeds of drug trafficking,
guns used in drug trafficking, and records of drug
trafficking. [DE 18-2].
search warrant was executed on April 27, 2017, and on
September 6, 2017, Mr. Haqq was indicted for the distribution
of fentanyl resulting in death, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C). [DE 1]. Mr. Haqq moved to
suppress evidence found at the Strawberry Lane Residence on
the grounds that the affidavit attached to the warrant
application did not provide probable cause to issue the
warrant. [DE 17; DE 28].
Haqq objects to both the R&R's factual findings and legal
analysis. Mr. Haqq objects to the R&R's factual findings
on grounds that it omits certain facts Mr. Haqq believes are
relevant to the suppression motion. Mr. Haqq then objects to
the legal analysis and conclusions, asserting four errors in
the R&R. First, Mr. Haqq objects to the finding that the
search warrant was supported by probable cause. Second, Mr.
Haqq argues that the affidavit failed to establish a nexus
between the evidence sought in the warrant and the place to
be searched-in this case, the Strawberry Lane Residence.
Third, Mr. Haqq objects to Magistrate's classification
and treatment of Mr. Haqq's Supplement to the Motion to
Suppress as a reply brief. Finally, Mr. Haqq objects to the
Magistrate's finding that, even absent probable cause to
search the Strawberry Lane Residence, the Leon good faith
exception to the exclusionary rule applies.
Standard Of Review.
to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal
Procedure 59(b)(1), a district court may refer a motion to
suppress to a magistrate judge to conduct an evidentiary
hearing, if necessary, and submit proposed findings of fact
and recommendations for the disposition of the motion. This
Court must “make a de novo determination of those
portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Crim. P. 59(b)(3). After
reviewing the evidence, the Court is free to accept, reject,
or modify the proposed findings or recommendations of the
magistrate judge. Id. Moreover, the Court need not
review, under a de novo or any other standard, those aspects
of the report and recommendation to which no specific
objection is made. Thomas v. Arn, 474 U.S. 140, 150
(1985). Rather, the Court may adopt the findings and rulings
of the magistrate judge to which no specific objection is
filed. Id. at 151.
Haqq's Objection To The Finding of Facts Contained In The
Haqq objects to the omission of the following facts contained
in the warrant affidavit: (1) “that the No. attributed
to ‘TC' by Hayes is registered in the name of
‘Thomas JONES'” [DN 18-2, at 6]; (2) that a
search of the Schutte residence by OCPD recovered “[a]
cellophane baggie with residue from HAYES' hooded sweat
shirt” [Id.]; and (3) that “during her
interview at the Louisville Metro Department of Corrections
with Sgt. Schardein, Hayes described how
‘‘TC' double bags the heroin' that he
sells” [Id., at 7]. [DE 33 (alteration in
reviewed the warrant affidavit, this Court finds that the
warrant affidavit does contain this information. The Court
finds that these material facts were not part of the
Magistrate's proposed findings of fact and that these
facts are important to the Court's de novo analysis of
the objections presented. Therefore, good cause exists to
modify the R&R to include these facts. The inclusion of such
facts, while ...