Opinion
NO. 2019-CA-000471-MR
04-17-2020
ANTHONY FAGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 18-CR-00409 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: Anthony Fagan appeals from the McCracken Circuit Court's judgment sentencing him to fifteen years' imprisonment after a jury found him guilty of first-degree trafficking in a controlled substance, greater than or equal to 2 grams of methamphetamine, subsequent offender. Fagan argues the circuit court erred by failing to suppress evidence (i.e., the aforementioned amount of methamphetamine) found at the home of his girlfriend, Marquita Askew, pursuant to the execution of a search warrant; and that for purposes of his Fourth Amendment rights, an adequate nexus was not established to connect his alleged criminal activity with Askew's address. Upon review, we affirm.
See Kentucky Revised Statute (KRS) 218A.1412(1)(b).
The affidavit supporting the search warrant at issue in this matter was sworn out by Matt Wentworth, a detective in the drug and vice enforcement unit of the Paducah Police Department (PPD) with sixteen years' experience. In sum, Wentworth indicated that over the course of an investigation from August 2017 through April 2018, law enforcement and various witnesses had observed Fagan carrying on a continuing drug trafficking enterprise in and around Paducah, chiefly involving the 1700 block of North 10th Street.
Wentworth began his affidavit by describing the details of his investigation of Fagan, which began on July 1, 2017, when a confidential informant ("CI 1") identified Mark Martin as an individual who sold quantities of heroin in the community. On August 9, 2017, PPD utilized CI 1 to make a purchase from Martin, who resided at 801 McGuire Road. Martin accepted payment from CI 1. He then drove to the 1700 block of North 10th Street, where he entered and later exited a residence; returned to his residence at 801 McGuire, where CI 1 had remained waiting; and provided CI 1 with heroin.
On August 23, 2017, PPD again utilized CI 1 to purchase heroin from Martin. As before, CI 1 met Martin at 801 McGuire, and Martin departed in his vehicle after accepting payment. This time, however, Martin drove to 1329 North 13th Street, where surveillance units observed him meeting with Anthony Fagan. Fagan then left that address by himself, driving a gray Ford F-150 truck. He arrived at the 1700 block of North 10th Street, where surveillance units later observed him walking near 1722 North 10th Street, making his way back toward where he had parked his truck in the driveway of 1701 North 10th Street. After returning to his truck, Fagan then drove back to 1329 North 13th Street, where Martin had remained waiting for him. Shortly after Fagan entered the residence, Martin exited it; Martin then returned to 801 McGuire, where CI 1 remained waiting and provided CI 1 with heroin.
On September 7, 2017, PPD again utilized CI 1 to purchase heroin from Martin. Over the telephone, Martin instructed CI 1 to meet him in the parking lot of an Advance Auto Parts located at 2828 Park Avenue. A short while later, Martin arrived as the passenger of a green four-door car driven by an individual CI 1 later positively identified as Fagan. CI 1 paid Martin, and Martin provided CI 1 with heroin.
At 11:00 a.m. on September 19, 2017, CI 1 once again met with Martin at 801 McGuire to purchase heroin. At approximately 11:01 a.m., surveillance units then observed Fagan exit the 1329 North 13th Street residence and drive his truck to 1701 North 10th Street. At approximately 11:15 a.m., Fagan was then observed leaving 1701 North 10th Street. He traveled to a residence at 1726 North 10th Street, which he entered using a key; he left shortly thereafter; and he drove back to 1329 North 13th Street, where he met with Martin behind the residence. Martin then left; returned to meet with CI 1 at 801 McGuire; and provided CI 1 with heroin.
In his affidavit, Wentworth added that Fagan's driver's license indicated 1701 North 10th Street was Fagan's place of residence. Fagan was also the party responsible for paying the electricity bills associated with 1726 North 10th Street.
On December 27, 2017, another confidential informant ("CI 2") indicated to PPD that Fagan was known for selling quantities of heroin in the community and that he frequently did so from properties located on the 1700 block of North 10th Street. CI 2 also stated that Fagan had previously resided at 1701 North 10th Street, but was currently residing with his girlfriend, Marquita Askew, who lived in a house on the west side of Paducah located across from a trailer park community and storage units.
Later that day, surveillance units observed Fagan at 1701 North 10th Street; he had parked his truck in the driveway and was in the process of moving items out of the residence. At that time, PPD utilized CI 2 to conduct a recorded and monitored meeting with Fagan, which lasted approximately four minutes. CI 2 approached Fagan and asked to purchase heroin. Fagan declined after indicating that he was "trying to keep a low profile" and remain "under the radar" of law enforcement. Fagan stated he would sell CI 2 heroin at a later date.
Afterward, PPD located the residence of Marquita Askew at 2630 North Friendship Road and determined that electrical service had been billed to Askew at that address since October 2013. As CI 2 had indicated, it was located on the west side of Paducah across from a trailer park community and storage units. And, according to Wentworth's affidavit, Fagan's truck was "frequently" parked in the driveway of that residence from December 2017 through April 2018; Fagan was "frequently" observed by surveillance units outside the residence; and Fagan was also observed on "at least two occasions" using a key to enter and exit the premises.
On April 9, 2018, PPD received a telephone call from an unnamed individual who stated that a woman named Jennifer Sledd was traveling from Mayfield to Paducah in a green Buick passenger car, bearing Kentucky registration 6847EM, to North 10th Street to meet with a black male whose name the caller believed was "Anthony Mathis." The caller stated Anthony drove a gray Ford F-150 truck and that Sledd would be purchasing heroin from Anthony upon arriving at 10th Street. The caller also stated Sledd had outstanding warrants.
A record check later confirmed that Sledd had active warrants, and surveillance units later found a green Buick passenger car bearing Kentucky registration 6847EM parked in the driveway of 1726 North 10th Street. The surveillance units also spotted Sledd and Fagan enter the front door of the residence, using a key.
After a few minutes, Sledd was observed leaving the residence in the green Buick. Later, she was stopped by law enforcement and arrested. After being Mirandized, Sledd admitted to being a heroin addict; she identified Fagan as an individual she had been meeting with on North 10th Street, about twice per week for the past two years, to buy heroin from. She further admitted that after entering the 1726 North 10th street residence with Fagan, Fagan had provided her approximately seventy dollars' worth of heroin, which she had snorted.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Lastly, on April 11, 2018, surveillance units once again observed Fagan standing near his gray Ford F-150 in the yard of the 2630 North Friendship Road residence. Wentworth also averred that, based upon his training and experience, drug dealers often stored the fruits and instrumentalities of their crimes at either "stash houses" or their residences.
Asserting the foregoing, Detective Wentworth requested a search warrant from the McCracken Circuit Court on April 11, 2018, for the residences located at: (1) 1726 North 10th Street; and (2) 2630 North Friendship Road. Search warrants were granted that day. On April 17, 2018, the warrants were executed. As discussed, the search of 2630 North Friendship Road resulted in the seizure of the methamphetamine for which Fagan was ultimately prosecuted.
Following his indictment, Fagan moved to suppress the evidence obtained from the search of 2630 North Friendship Road. He argued both in his motion and at the eventual suppression hearing that nothing in Wentworth's affidavit directly connected the 2630 North Friendship Road address with any observed criminal activity. He also argued that because drugs are consumable, the six-day delay between the issuance of the affidavit and its execution rendered the search warrant stale. In response, the Commonwealth argued that either probable cause had justified the issuance of the search warrant, or the "good faith" exception set forth in Leon applied and thus precluded Fagan from suppressing the evidence.
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon was adopted in Crayton v. Commonwealth, 846 S.W.2d 684 (Ky. 1992).
After reviewing the substance of Wentworth's affidavit and his testimony taken at the suppression hearing, the circuit court denied Fagan's motion. In the relevant part of its December 28, 2018 order to that effect, the circuit court explained:
Paducah Police Officer Matt Wentworth's detailed affidavit for the search of 2630 North Friendship Road stated specific facts that Fagan either sold heroin, or assisted in the sale of heroin, repeatedly in McCracken County from August 23, 2017 through April 9, 2018. From police surveillance, the affidavit further stated that Fagan lived at 2630 North Friendship Road from December 2017 through April 11, 2018 with his girlfriend, Marquita Askew. The search warrant was issued for that residence on April 11, 2018. The warrant sought heroin and other illegal drugs, ledgers, currency, and paraphernalia. It was executed on April 17, 2018. At the suppression hearing held on December 14, 2018, Fagan introduced no evidence that any fact stated in the affidavit was false or misleading.
A trial court faced with a motion to suppress evidence obtained pursuant to a search warrant should determine whether under the "totality of the circumstances" presented within the four corners of the affidavit, the warrant-issuing judge had a substantial basis for concluding that probable cause existed. Com. v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). In the case of drug dealers evidence is likely to be found where the dealers live. Beckam v. Com., 284 S.W.3d 547, 549 (Ky. Ct. App. 2009). In determining whether probable cause has dissipated, the lapse of time since the issuance of the warrant, the nature of the criminal activity, and the kind of property subject to search should all be considered. U.S. v. Robinson, 441 F.Supp.2d 1029, 1034 (D. Minn. 2006).
In this case, Detective Wentworth's affidavit established that Fagan was a regular and active heroin dealer at the time the warrant was issued on April 11, 2018. The affidavit reflected that he regularly resided at 2630 North Friendship Road from December 2017 through April 11, 2018. On April 17, 2018, the date the warrant was executed, there was no reason to believe the illegal drugs, drug paraphernalia, currency and drug ledgers Fagan might have kept there would have dissipated. The warrant was not stale.
As indicated, the evidence seized from 2630 North Friendship Road ultimately led to Fagan being convicted of first-degree trafficking in a controlled substance, greater than or equal to 2 grams of methamphetamine, subsequent offender. He now appeals.
On three separate occasions during the pendency of this appeal, Anthony Fagan moved for and received additional time for briefing. Specifically, pursuant to Kentucky Rule of Civil Procedure (CR) 76.12(2)(c)(i), Fagan's time for filing his opening brief initially expired sixty days after April 22, 2019 (the date this Court received the circuit court's record); that date was extended to September 19, 2019; it was later extended to October 8, 2019; and, after the Commonwealth filed its appellee brief on December 5, 2019, Fagan's time for filing a reply brief was also extended to January 9, 2020. --------
In Commonwealth v. Pride, 302 S.W.3d 43 (Ky. 2010), our Supreme Court set forth the standard for assessing whether a search warrant was properly issued based on probable cause:
The proper test for appellate review of a suppression hearing ruling regarding a search pursuant to a warrant is to determine first if the facts found by the trial judge are supported by substantial evidence, . . . and then to determine whether the trial judge correctly determined that the issuing judge did or did not have a "substantial basis for . . . conclud[ing]" that probable cause existed.Id. at 49 (citations and footnote omitted).
With that said, Fagan appears to have abandoned his "staleness" argument, which lacked merit for the reasons discussed by the circuit court. Instead, his sole appellate argument is that the search warrant of 2630 North Friendship Road was defective because Wentworth's affidavit failed to establish an adequate nexus between that address and his alleged criminal activity.
To be sure, the salient question for Fourth Amendment purposes is whether the police can show a "nexus" between the site and the evidence. United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). When officers violate a suspect's Fourth Amendment rights by using a defective warrant that fails to establish a nexus between incriminating evidence and the site of a search, suppression is the customary remedy. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). But, that general rule is qualified by an exception: A court may admit evidence gleaned under the auspices of an unconstitutional warrant if a reasonable officer would not have appreciated the defect. Leon, 468 U.S. at 919-21, 104 S.Ct. at 3418-19. A defendant may defeat an officer's claim of good faith if the affidavit was so lacking in factual support that the officer's belief in probable cause was entirely unreasonable or the affiant included information that he knew or should have known was false. Id., 468 U.S. at 923, 104 S.Ct. at 3421.
In the context of crimes that relate to dealing or trafficking drugs, the law is more nuanced. This point, and the federal law associated with it from the Sixth Circuit, was recently summarized in United States v. Ardd, 911 F.3d 348 (6th Cir. 2018), cert. denied 139 S.Ct. 1611, 203 L.Ed.2d 763 (2019). The Court explained:
As a few of our decisions confirm, we have struggled to identify the quantum of evidence needed to connect drug trafficking by an individual to a probability that evidence will be found at the individual's residence. See United States v. Brown, 828 F.3d 375, 383-84 & n.2 (6th Cir. 2016). Some cases suggest a bright-line rule—that adequate evidence of the one amounts to probable cause of the other. See, e.g., United States v. Gunter, 551 F.3d 472, 481 (6th Cir. 2009); United States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007); United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002). Other cases require independent evidence tying the residence to drug activity to infer that it will contain evidence of drug trafficking. See, e.g., Brown, 828 F.3d at 383-84; United States v. Ellison, 632 F.3d 347, 349-50 (6th Cir. 2011); United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005).Id. at 351.
Turning to the case at hand, though, "[w]e need not enter these frothy waters and pass on the validity of this warrant," because the Commonwealth at least met the Leon good-faith exception. Id. As the Ardd Court further observed:
Good-faith reliance on an affidavit under Leon needs a "minimally sufficient nexus" between the site of the search and the evidence sought. Carpenter, 360 F.3d at 596. And it is not entirely unreasonable for an officer
to infer a connection between evidence of drug trafficking and a drug dealer's home. See, e.g., Gunter, 551 F.3d at 481-82. All that's required in the Leon context are facts that show a nexus and that are not "so vague as to be conclusory or meaningless," Carpenter, 360 F.3d at 596—all less than what's needed to show probable cause.Id. at 351-52.
Case after case finds good-faith reliance in similar settings. See, e.g., United States v. McCoy, 905 F.3d 409, 419 (6th Cir. 2018) (good-faith reliance on affidavit to search home, though affidavit merely tied drugs to defendants' place of business); United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009) (good-faith reliance on affidavit to search home, though only evidence linking home to drugs was an untested informant's indication he'd just purchased drugs there); Frazier, 423 F.3d at 537 (good-faith reliance on affidavit to search home, though it tied drugs only to defendant's former residence); Carpenter, 360 F.3d at 596 (good-faith reliance on affidavit to search home, though it merely noted that defendant's residence was connected by road to nearby marijuana field).
In Ardd, as here, the officer who swore out the affidavit for the search warrant at issue "confirmed that, in his experience, drug dealers often keep evidence of their criminal activity at their homes." Id. at 352. In Ardd, as here, the officer confirmed through his own observations the informants' tips that the defendant "dealt or was attempting to deal drugs." Id. And in Ardd, as here, the police surveilled the defendant to determine the location of his residence. Id. True, nothing in writing indicated Fagan resided at 2630 North Friendship Road; but, as the circuit court explained below, four months of observation did. And considering those facts, it was not "entirely unreasonable" for Wentworth and the other executing officers - like the officers in Ardd - to believe there was probable cause to search 2630 North Friendship Road for evidence. Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (quotation omitted).
Indeed, our application of the Leon exception under roughly analogous circumstances is nothing new. See, e.g., Beckam v. Commonwealth, 284 S.W.3d 547 (Ky. App. 2009) (drug residue and scales found in the defendant's rental cars, damage to the cars, and the fact that the defendant had driven the rental cars several hundred miles supported the inference that the defendant was a drug trafficker, and accordingly either justified issuance of a warrant for the defendant's residence, or warranted application of Leon).
Based upon the record before us, the officers were entitled to rely on the warrant to search 2630 North Friendship Road; the good faith exception applied; and the evidence seized during the search of the premises was admissible. Accordingly, we AFFIRM.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky