United States v. Morton

1

UNITED STATES OF AMERICA Plaintiff v. MORTON, ET AL. Defendants

CRIMINAL ACTION No. 4:23-CR-00002-RGJ-9

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

January 16, 2024

MEMORANDUM OPINION & ORDER

REBECCA GRADY JENNINGS, DISTRICT JUDGE UNITED STATES DISTRICT COURT.

This matter comes before the Court on Defendant Ellis Parker's (“Parker”) motion to suppress and exclude evidence. [DE 179]. Briefing is complete and the motion is ripe. [DE 185; DE 213]. For the reasons below Parker's motion to suppress [DE 179] is DENIED.

BACKGROUND

On February 15, 2023, Parker was indicted along with eleven alleged co-conspirators for conspiracy to possess with intent to distribute methamphetamine. [DE 1, Indictment]. On February 22, 2023, police requested a search warrant for Parker's home at 2604 West 5^th Street in Owensboro, Kentucky. [DE 179-1, Search Warrant Aff.]. The affidavit, offered by Detective Kristen Dirickson (“Dirickson”), stated that police had executed a search warrant at the home of one of Parker's “close friends” and co-conspirators, Johnny Albury (“Albury”). [Id. at 577]. During the search of Albury's home, Detective Fluery spoke with Katrina Shelton (“Shelton”), who reported that Albury kept his “money and illicit substances at Parker's residence.” [Id.]. The affidavit also described Parker's home and identified the items to be found:

any and all illegal controlled substances including, but not limited to marijuana, fentanyl, methamphetamine, or cocaine drug paraphernalia including, but not limited to plastic baggies, corner baggies, scales, and needles; drug proceeds consisting of cash and coin; drug transaction records consisting of, but not limited to, notes, records, receipts and like showing money and/or drugs credited or debited, or which show ownership of illegal drugs, amounts fronted or owed, and identification of those individuals, cell phones and any and all information contained within the cell phone including saved numbers, texts, photos, voice-mails and videos, and any safes that cannot be opened on the scene, any and all surveillance equipment, storage devices, computers, hard drives, and any other equipment capable of holding information of illegal drug activity.

[Id. at 576]. The affidavit form also called for the officer to check applicable boxes classifying the items as stolen property, things used in commission of a crime, things intended to be used in commission of crime, among other things. [Id. at 577]. A search warrant was issued for Parker's home in reliance on the affidavit. [Id.].

STANDARDS

I. Probable Cause

The Fourth Amendment requires 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 is not a high bar.” United States v. Helton, 35 F.4th 511, 517 (6th Cir. 2022) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)) (internal quotations and citation omitted). It “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243-44, n. 13 (1983)). To establish requisite probable cause for a search warrant, an officer must submit an affidavit containing “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) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). The affidavit must establish a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).

When reviewing a finding of probable cause, courts are limited to the “four corners of the affidavit” and should “give great deference” to the issuing magistrate's determination. Abboud, 438 F.3d at 571 (citations omitted). Moreover, affidavits should be reviewed on a “totality of the circumstances determination, rather than a line-by-line scrutiny.” United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001) (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000)).

II. Leon Good Faith Exception

The exclusionary rule prohibits the government from using evidence obtained in violation of the Fourth Amendment against a defendant at trial. Its purpose is to deter intentional police misconduct. See United States v. Calandra, 414 U.S. 338, 348 (1974) (“the [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect”). Accordingly, evidence should not be suppressed if police obtained it “in objectively reasonable reliance” on the “subsequently invalidated search warrant.” United States v. Leon, 468 U.S. 897, 922 (1984). In Leon, the Supreme Court identified four circumstances when an officer's reliance on a search warrant would not be reasonable:

(1) the magistrate was ‘misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;' (2) the magistrate ‘abandoned his judicial role' or neutrality; (3) the warrant was ‘so lacking in indicia of probable cause' as to render official belief in its existence unreasonable; or (4) the warrant was so ‘facially deficient' that it could not reasonably be presumed valid.

United States v. McClain, 444 F.3d 556, 564-65 (6th Cir. 2005) (quoting Leon, 468 U.S. at 923). The third circumstance is called a “bare bones” affidavit. United States v. White, 874 F.3d 490, 497 (6th Cir. 2017). A “bare bones” affidavit-distinct from one lacking probable cause-“must be so lacking in indicia of probable cause that, despite a judicial officer having issued a warrant, no reasonable officer would rely on it.” United States v. White, 874 F.3d 490, 497 (6th Cir. 2017) (emphasis in original) (citation omitted). “If the reviewing court is ‘able to identify in the averring officer's affidavit some connection, regardless of how remote it may have been'- ‘some modicum of evidence, however slight'- ‘between the criminal activity at issue and the place to be searched,' then the affidavit is not bare bones and official reliance on it is reasonable.” Id. (quoting United States v. Laughton, 409 F.3d 744, 749-50 (6th Cir. 2005)).

ANALYSIS

Parker argues that the search warrant executed on his home lacked probable cause and no reasonable officer would have relied on it. [DE 179 at 571-72]. The United States contends that the affidavit was sufficient to support a finding of probable cause, and even if not, the Leon good faith exception applies to prevent the exclusion of evidence obtained during the search. [DE 185 at 596-600].

I. Probable Cause

a. “Boilerplate” Language

First, Parker alleges that the affidavit contains “boilerplate” language insufficient to support a finding of probable cause. [DE 179, Mot. Suppress at 570]. While the affidavit form contained blanks for general statements, it also included a long list of items particular to drug trafficking. [DE 179-1 at 579]. And the Sixth Circuit has held such “boilerplate” arguments “are without merit because the fact that a search-warrant affidavit is an almost ‘word-for-word' copy of the affidavit in a prior case is irrelevant ‘[a]s long as there is sufficient information to provide probable cause for the search.'” United States v. Green, 572 Fed.Appx. 438, 441 (6th Cir. 2014) (quoting United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996)) (alteration in original). Here, the affidavit contained multiple paragraphs of specific factual allegations. [See DE 179-1]. Whether or not those facts established probable cause, the officer's use of a standardized form does not render the entire affidavit “boilerplate.”

b. Factual Inaccuracies

Parker also alleges that the affidavit contained factual inaccuracies. [DE 179 at 570]. Specifically, he alleges that he “was not under arrest on February 22, 2023, at the time that Johnny Albury was arrested” and “had not been apprehended on a federal warrant for conspiracy to distribute methamphetamine at the time that this affidavit was used in obtaining the search warrant.” [Id. at 570-71].

The Sixth Circuit has held “[a] defendant who challenges the veracity of statements made in an affidavit that formed the basis for a warrant has a heavy burden.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). A defendant must “point to specific false statements” and “accompany his allegations with an offer of proof.” United States v. Cummins, 912 F.2d 98, 101, 103 (6th Cir. 1990); see Franks v. Delaware, 438 U.S. 154, 171 (1978) (establishing the test for challenging the veracity of a search warrant affidavit). If a defendant makes this preliminary showing, the false statements are set aside and the court “review[s] what remains to decide the issue of probable cause.” Green, 572 Fed.Appx. at 442. Only if the remaining content is insufficient is the defendant entitled to a hearing on the veracity of the affidavit. See Franks, 438 U.S. at 172.

Parker claims that the assertation that he was arrested before the affidavit was submitted on February 22, 2023 is false. [DE 179 at 570-71]. Yet he has failed to “accompany his allegations with an offer of proof.” Cummins 912 F.2d at 103. He offers only conclusory allegations, unsupported by affidavit or explanation. See Bennett, 905 F.2d at 934 (“[A]llegations must be more than conclusory. . . [defendant] must accompany his allegations with an offer of proof. Moreover, he also should provide supporting affidavits or explain their...