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United States v. Haqq

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

September 26, 2018

UNITED STATES OF AMERICA Plaintiff
v.
JIHAD HAQQ Defendant

          MEMORANDUM OPINION & ORDER

          Rebecca Grady Jennings, District Judge.

         This 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].

         On 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.

         For the 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].

         I. FACTUAL AND PROCEDURAL BACKGROUND

         These 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.

         On 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. [Id.]

         Following 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.

         On 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.]

         An OCPD 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 substances. [Id.]

         On 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.[1] [DE 18-2].

         The 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].

         II. OBJECTIONS

         Mr. 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.

         A. Standard Of Review.

         Pursuant 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.

         B. Mr. Haqq's Objection To The Finding of Facts Contained In The R&R.

         Mr. 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 original)].

         Having 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 ...


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