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United States v. Nasr

United States District Court, E.D. Kentucky, Southern Division, Pikeville

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
ASSAD NASR, Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL JUDGE

         This matter is before the Court on Defendant Assad Nasr's motion to suppress (DE 35) evidence seized by the government pursuant to a search warrant. For the following reasons, the Court will deny the motion.

         Nasr is a pharmacist and, during the relevant time period, was the owner of Kentuckiana Pharmacy, which is in Jeffersonville, Indiana. He is charged with one count of conspiring with others to dispense oxycodone outside the scope of professional practice and not for a legitimate medical purpose. With this motion, he asks the Court to suppress certain evidence that the government seized from the pharmacy pursuant to a search warrant.

         In his motion, Nasr argues that there are three problems with the search warrant that authorized the search of his pharmacy. First, he argues that the affidavit filed in support of the search warrant does not establish the requisite “probable cause.” Second, he argues that statements made by Detective and DEA Task Force Officer Brian Metzger in the affidavit that he submitted in support of the search warrant were “materially misleading.” Third, he argues that the warrant that the magistrate judge issued was overbroad. (DE 35, Motion at 3.)

         The Court will first address probable cause. The Constitution's Fourth Amendment provides that “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. “Probable cause” means a “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion that there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. King, 227 F.3d 732, 739 (6th Cir. 2000) (quotations and citations omitted).

         To meet the nexus requirement of probable cause, “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). “In other words, the affidavit must suggest ‘that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought' and not merely ‘that the owner of the property is suspected of a crime.'” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir.2006) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)).

         “When making a probable cause determination, a court is limited to the four corners of the affidavit.” United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013). Accordingly, no hearing on this issue is necessary. See United States v. Baechtle, No. 2:13-CR-20054-SHM, 2015 WL 893348, at *7 (W.D. Tenn. Mar. 2, 2015).

         The affidavit submitted in support of the warrant here establishes established probable cause to believe that evidence of the illegal distribution of controlled substances would be found at Kentuckiana. It set forth the following facts:

• Kentucky State Police Trooper Zach Bryson contacted Detective Metzger on about June 14, 2016 and informed him that Darryl Williams, a resident of Pike County, Kentucky, had been paying for a large group of people to travel to a pain clinic in Virginia. The affidavit refers to this group of people as Williams' drug-trafficking organization (“DTO”).
• For the members of his DTO, Williams covered the costs of their travel to the Virginia pain clinic, the doctor's visits, and filling the prescriptions. In return, Williams received half of the pills that they were prescribed by the pain clinic. After Williams learned he was being investigated by the Kentucky State Police, he contacted Trooper Bryson and agreed to cooperate.
• Detective Metzger, DEA Special Agent Iain Dalrymple, and Trooper Bryson met with Williams at the KSP post in Pikeville on June 17, 2016. Williams told the officers that he had taken several people to Dr. Joel Smithers' office in Martinsville, Virginia, and that Dr. Smithers had provided Williams a list of pharmacies where Williams and his group could fill the prescriptions that Dr. Smithers issued to them. One of the listed pharmacies was Kentuckiana Pharmacy in Jeffersonville, Indiana.
• Williams advised the officers that Dr. Smithers wrote him and his group prescriptions for oxymorphone and oxycodone pills. Williams stated that he would take three prescriptions at one time into Kentuckiana and obtain the pills. Then he would sell the pills to make enough money to fill more of the prescriptions. Williams stated he had filled prescriptions at Kentuckiana in the names of seven other individuals who were members of his DTO.
• On July 11, 2016, Detective Metzger, Special Agent Dalrymple, and DEA Task Force Officer Shelby Sloane again met with Williams in Pike County, Kentucky. Williams informed the officers that he had routinely filled prescriptions at Kentuckiana that were written by Dr. Smithers. He stated that he had contacted the Kentuckiana pharmacist by cell phone, and he provided the officers with the cell phone number. The officers determined that the cell phone number was registered to Kentuckiana.
• On July 12, 2016, the officers met with Williams and his girlfriend, Lora Kicklighter, who informed the officers that she had obtained prescriptions from Dr. Smithers and had them filled at various pharmacies, including Kentuckiana. She stated that none of the pharmacies ever asked for information concerning medical insurance or medical ...

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