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United States v. Moore

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

May 8, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
KENNETH J. MOORE; and LINDSEY LEIGH DAVIS DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Defendants' Motions to Suppress (DN 24, 25). For the reasons provided below, the motions are GRANTED.

         I. BACKGROUND

         The parties do not appear to dispute the facts relating to the present motions. On April 26, 2018, Officer Matthew Johnson (“Officer Johnson”) of the Shepherdsville Police Department applied for a warrant to search a home on Hillview Boulevard in Louisville, Kentucky, believed to be the residence of Defendant Kenneth Moore (“Moore”). (Def.'s Mot. Suppress 1, DN 24 [hereinafter Moore's Mot. Suppress]; Pl.'s Resp. Defs.' Mots. Suppress 1, DN 26 [hereinafter Pl.'s Resp.]). Moore had previously been stopped by police and arrested for outstanding bench warrants while waiting in the parking lot for his girlfriend, Co-Defendant Lindsey Davis (“Davis”), to return from a doctor's appointment. (Moore's Mot. Suppress 1-2). In the affidavit supporting his application for the search warrant, Officer Johnson alleged that he believed methamphetamine trafficking was occurring at Moore's residence. (Def.'s Mot. Suppress Ex. 1, at 1-2, DN 24-1 [hereinafter Aff.]).

         Officer Johnson's affidavit described the Hillview Boulevard residence and indicated he expected to discover methamphetamine and associated paraphernalia inside. (Aff. 1-2). Officer Johnson disclosed that he had been an officer with the Shepherdsville Police Department for two years. (Aff. 3). The affidavit also contained four pages of standard recitations regarding drug crimes. (Aff. 3-7). Officer Johnson “checked a public records data base and determined that [Moore] listed his address as 1553 Hillview Blvd” in Louisville, further noted that he had arrested Moore at that address on March 22, 2017, and that Moore had received mail at the address in April 2018. (Aff. 3).

         In addition to Moore's address, Officer Johnson disclosed information he believed specifically supported probable cause for a warrant to search Moore's residence for evidence of drug trafficking. First, he provided that a named informant told him on April 26 that he had bought one ounce of methamphetamine from Moore a week earlier on April 19, 2018. (Aff. 3). Officer Johnson also indicated that he had previously arrested this named informant with several grams of methamphetamine in August 2017. (Aff. 3). Officer Johnson further averred that he spoke with Agent Lori Tomes with the Drug Enforcement Agency (“DEA”), who told him that “an informant with the Greater Hardin County Drug Task Force ha[d] bought meth from [Moore] in the last three weeks.” (Aff. 3).

         Presumably, the search warrant issued in response to Officer Johnson's application yielded evidence of drug trafficking. On November 6, 2018, Moore and Davis were charged with possessing with the intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). (Indictment 1, DN 1). Moore was also charged with possessing a firearm in furtherance of the drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). (Indictment 2). On March 22, 2019, both Moore and Davis moved to suppress the evidence collected pursuant to that warrant.[1]

         In his motion, Moore argues Officer Johnson's affidavit contained no evidence he distributed narcotics from the Hillview Boulevard residence, that he used the address to store narcotics, or that any suspicious activity had taken place there. (Moore's Mot. Suppress 2). Moore further contends that the affidavit lacked any indicia of reliability for the information provided by the informants and that there was never any surveillance conducted on his home or any recorded phone conversations linking drug trafficking to the residence. (Moore's Mot. Suppress 2). With these facts, Moore argues the search warrant was unreasonable and invalid under the Fourth Amendment because the affidavit failed to establish the requisite nexus between the place to be searched and any evidence of drug dealing. (Moore's Mot. Dismiss 4). Additionally, Moore contends the affidavit fails to support probable cause because it lacked information establishing the reliability of the informants. (Moore's Mot. Dismiss 5).

         In its response, the United States argues that even though the affidavit did not state the drug transactions took place at the residence, Moore is a known drug dealer and courts have acknowledged that evidence of drug dealing is likely to be found where drug dealers live. (Pl.'s Resp. 3). Additionally, the United States contends the exclusionary rule does not bar the admission of the evidence obtained from the search because Officer Johnson conducted the search in good faith in reliance on the warrant. (Pl.'s Resp. 4).

         II. DISCUSSION

         Under the Fourth Amendment, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “The ‘chief evil' deterred by the Fourth Amendment is the physical invasion of the home. Indeed, the right of a citizen to retreat into the home and ‘there be free from unreasonable governmental intrusion' stands at the core of the Fourth Amendment.” United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016) (internal citation omitted) (citation omitted).

         The Supreme Court has established a “totality of the circumstances” test for determining whether probable cause has been established within the four corners of an affidavit for a search warrant. Illinois v. Gates, 462 U.S. 213, 239 (1983). “To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006) (internal quotation marks omitted) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).

         A. Nexus Requirement

         Once presented with an application for a search warrant, the issuing magistrate is tasked with “mak[ing] a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238 (1983). “There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.'” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (citation omitted). That connection must be specific and concrete, not “vague” or “generalized.” Id. at 595. If the affidavit fails “to set forth sufficient facts ...


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