United States District Court, W.D. Kentucky
MEMORADUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE.
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],
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.
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.
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].
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].
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
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).
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.
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.
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 ...