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United States v. Malone

United States District Court, W.D. Kentucky

January 9, 2020

UNITED STATES OF AMERICA, PLAINTIFF
v.
KENDRICK MALONE, DEFENDANT

          MEMORADUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE.

         This matter is before the Court on Defendant Kendrick Malone's Motion to Suppress. [DN 20]. The Court conducted an evidentiary hearing on November 13, 2019 and both parties have submitted briefs in support of their position. [DN 27, 29]. This matter is ripe for adjudication. For the reasons stated herein, Defendant's Motion to Suppress, [DN 20], is DENIED.

         BACKGROUND

         On August 9, 2018, detectives with the McCracken County Police Department arrested an individual (“CS 1”) for trafficking in methamphetamine. [DN 31 at 91]. CS 1 made statements against his penal interest, including that his supplier was obtaining narcotics from a black male living in the Forrest Hills neighborhood of Paducah, Kentucky. Id. A search of his supplier's cell phone revealed that this man went by the name “Gangsta” and had a Memphis cell phone number. Id.

         On September 19, 2018, police arrested a second individual (“CS 2”) for trafficking in methamphetamine. Id. CS 2 identified his source of supply as a black male from Memphis using the name “Gangsta.” Id. CS 2 stated that he had purchased methamphetamine from Gangsta every day for the past ninety days at an apartment in Forrest Hills. Id. CS 2 also provided detectives with the same Memphis cell phone No. that had been connected to Gangsta pursuant to the arrest of CS 1. Id. Moreover, CS 2 informed detectives that Gangsta had been living with a white female in the Forrest Hills residence but had recently kicked her out. Id. Finally, CS 2 described Gangsta's physical appearance and approximate age. Id. at 92.

         Based on this information, detectives contacted Central Dispatch regarding the Forrest Hills residence. Id. They learned that on August 4, 2018, a woman named E.H. called the police from the residence claiming she had been raped by Kenneth Malone. Id. Detectives also contacted the local power company and found that the apartment's utilities were in E.H.'s name. [DN 27 at 76]. Next, detectives searched law enforcement databases and social media sites for individuals named Kenneth Malone. [DN 31 at 92]. They discovered a man named Kendrick Malone who had ties to Western Kentucky and Memphis, Tennessee. Id. The search also revealed Malone's last known address was in Memphis and he was wanted in Tennessee for drug-related charges. Id. Detectives then showed a photograph of Kendrick Malone to CS 2, who positively identified the man as Gangsta. Id. Finally, detectives briefly conducted surveillance at the Forrest Hills residence but did not see Malone. [DN 27 at 76].

         The same day, detectives applied for a search warrant for the Forrest Hills residence. [DN 76]. The residence was searched and evidence of drug trafficking was seized. On March 12, 2019, Defendant was indicted on one count of knowingly and intentionally possessing 50 grams or more of methamphetamine with intent to distribute. [DN 1]. Defendant now seeks to suppress all evidence seized during the execution of the search warrant. [DN 20].

         LEGAL STANDARD

         The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV. Consistent with this principle, constitutional jurisprudence provides “the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In order to further protect individuals' privacy interests, the Fourth Amendment demands that search warrants, when issued, are only provided upon a showing of probable cause. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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 judge 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 Fed.Appx. 554, 556 (6th Cir. 2009) (quoting Gates, 462 U.S. at 238). Moreover, 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.

         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)). “The 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, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). Ultimately, the decision of the magistrate judge 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.

         DISCUSSION

         First, Defendant argues that the evidence seized during the execution of the search warrant should be suppressed because detectives withheld critical information regarding Malone's residence from the magistrate judge. [DN 27 at 76]. Specifically, Defendant claims that detectives knew he did not live at the Forrest Hills address, but deceptively referred to the apartment as the “Kendrick Malone residence.” [Id.; see DN 31 at 89]. In support of this position, Defendant contends that detectives knew he had a Tennessee driver's license, his last known address was in Tennessee, and he was on supervised probation in Tennessee; however, none of this information was included in the affidavit. [DN 27 at 76]. Moreover, Defendant asserts that detectives withheld the fact that the utilities where in E.H.'s name, which suggests he did not reside at the apartment. Id. Finally, Defendant alleges detectives withheld information that they had conducted surveillance at the residence but had not seen Malone. Id.

         In response, the Government notes that detectives included information regarding Defendant's connections to Tennessee in their search warrant application. [DN 29 at 85]. Specifically, the affidavit states that Malone's last known address was in Memphis and he was wanted out of Memphis for drug-related charges. [DN 31 at 92]. Second, the Government asserts that E.H. is mentioned multiples times in the affidavit, including the fact that she and Malone had been living together, but he had recently kicked her out. [DN 29 at 84]. Moreover, the affidavit states that E.H. was a resident of the apartment at the time she made the 9-1-1 call. Id. Given these facts, the Government argues “it is ultimately immaterial whether the utilities were in E.H.'s name.” Id. Finally, the Government claims the fact that detectives conducted surveillance at the residence but did not see Malone is not exculpatory information. Id. Detectives conducted a brief investigation before applying for the search warrant out of fear that the information would become stale. Id. Thus, the Government argues “the failure to observe the defendant over an extremely limited period of time is not surprising.” Id. at 85. Moreover, “the surveillance did not suggest that someone ...


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