United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE.
matter comes before the Court upon Defendant Chad
Bradley's (“Defendant”) Motion to Suppress.
[DN 47.] The government simultaneously filed its brief
opposing suppression. [DN 48.] Defendant previously filed a
Motion to Reopen the Suppression Hearing. [DN 42.] The Court
held a hearing on November 25, 2019. As such, this matter is
ripe for adjudication. For the reason that follow,
Defendant's Motion to Reopen Suppression Hearing [DN 42]
and Supplemental Motion to Suppress [DN 47] are GRANTED.
case arises from Defendant's arrest on November 27, 2018.
As a result of the arrest, Defendant has been charged with
one count of possession of methamphetamine with the intent to
distribute. [DN 1.] Defendant filed an initial Motion to
Suppress the methamphetamine found and all statements made.
[DN 20.] This Court denied Defendant's motion. [DN 30.]
Defendant subsequently changed attorneys and filed a Motion
to Reconsider. [DN 38.] The Court also denied that motion.
[DN 41.] Defendant then file a Motion to Reopen the
Suppression Hearing. The Court granted Defendant's motion
due to ambiguity in the testimony from the first Suppression
and seizures conducted without a warrant issued by a judge or
magistrate are per se unreasonable under the Fourth Amendment
unless a specifically established exception applies. Katz v.
United States, 389 U.S. 347, 357 (1967). When searches are
conducted without a warrant, the government has the burden of
showing that an exception applies. Vale v. Louisiana, 399
U.S. 30, 34 (1970). “The exclusionary rule prohibits
the admission of evidence seized in searches and seizures
that are deemed unreasonable under the Fourth Amendment, as
well as derivative evidence acquired as a result of an
unlawful search.” U.S. v. Kennedy, 61 F.3d 494, 497
(6th Cir.1995) (citing Wong Sun v. United States, 371 U.S.
471, 484-85 (1963)). The government must prove by a
preponderance that an exception to the exclusionary rule
the Court decided in its first Memorandum Opinion and Order
that Deputy Edwards' action of opening the door of
Defendant's truck constituted an improper search. [See DN
30 at 3-4.] The Court came to this decision after both
parties stipulated the warrant did not include any vehicles.
However, there was ambiguity with regards to the independence
of the K9 being called from this improper search by Deputy
parties have stated, an improper search does not necessarily
require a court to suppress all evidence obtained subsequent
to that search. The police are to be put “in the same,
not a worse, position that they would have been in if no
police error or misconduct had occurred.” Nix v.
Williams, 467 U.S. 431, 443 (1984). If there is an
independent source for the discovery of the evidence, the
evidence must not be suppressed. When determining if an
independent source exists, the court must consider,
“whether, granting establishment of the primary
illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of
the primary taint.” Id. at 442 (quoting Wong
Sun v. United States, 371 U.S. 471, 488 (1963).
Independent Source Doctrine
Court will first consider whether the independent source
doctrine applies. When “a later, lawful seizure is
genuinely independent of an earlier, tainted one…there
is no reason why the independent source doctrine should not
apply.” Murray v. United States, 487 U.S. 533, 542
(1988). Here, the government argues the independent source
doctrine applies because the probable cause to search the
truck was based on the K9's change in behavior and
Trooper Sullivan was always intending to use the K9 at
Defendant's residence. Defendant argues the doctrine does
not apply because all actions that took place with
Defendant's truck are derivative of Deputy Edwards'
improper search. The Court agrees with Defendant.
is no dispute that Trooper Sullivan and his K9 arrived after
Deputy Edwards conducted his improper search. [Supp. Hrg. R.
DN 45 (Edwards) 28: ¶¶ 7-12.] The issue here is
whether Trooper Sullivan instructed his K9 to sniff the car
independent of the information obtained as a result of that
the first suppression hearing, Trooper Pervine stated he
looked through the window of Defendant's truck prior to
any search “by a deputy or by a trooper”. [Supp.
Hrg. R. DN 23 (Pervine) 2:8 ¶¶ 18-25; 29:
¶¶ 4-9.] If Trooper Pervine looked through the
window prior to the search and gained suspicion that would be
an independent source for the evidence. However, after the
second suppression hearing, it is clear that Trooper Pervine
only looked in the car window as a result of Deputy
Edwards' search. Trooper Pervine explicitly stated that
he did not personally look through the windows of the truck
prior to serving the search warrant. [Supp. Hrg. R. DN 45
(Pervine) 5: ¶¶ 9-12.] Pervine further stated that
at no point prior Deputy Edwards stating he believed there
was something in the truck did Pervine look in the truck.
[Id. at 11: ¶ 25; 12: ¶¶ 1-9.]
looked in the passenger-side window “in response to
what Deputy Edwards told [Pervine]”. [Id. at
13: ¶¶ 2-17.] Trooper Pervine had no
“intention of looking at the vehicle”. This
leaves no doubt about the timing of and motivation for
Pervine looking into the window. The government states that
Edwards' improper search only revealed the same black bag
and plastic baggies that were visible by looking through the
windows of the truck. The Court agrees with this statement.
However, the Court cannot ignore the fact that the window was