The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Defendant Tracy Feagan ("Defendant") filed a motion to suppress the fruits of the search of 2237 6th Street NW, Birmingham, Alabama (Court File No. 108), and to suppress his August 25, 2007 statement (Court File No. 116). Magistrate Judge Susan K. Lee conducted a hearing on these motions (see Court File No. 166), and subsequently issued a report and recommendation ("R&R"), denying both (Court File No. 171). Defendant filed a timely objection to the R&R (Court File No. 175). For the following reasons, the Court will ACCEPT and ADOPT the R&R (Court File No. 171) and will DENY Defendant's motion to suppress the fruits of the search (Court File No. 108) and motion to suppress the statement (Court File No. 116).
The R&R provides considerable detail as to the surrounding facts involved in this matter, and those facts need not be repeated here (Court File No. 171). The facts as pertinent to Defendant's objections are more fully discussed below.
In reviewing the R&R of a magistrate judge, the district court judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
A. Search of 2237 6th Street NW, Birmingham, Alabama
Defendant moves the Court to suppress the fruits of the search of his residence, arguing (1) probable cause did not exist to support a search warrant, in violation of the Fourth Amendment of the United States Constitution, and, (2) if probable cause did not exist, the shortcoming is not excused by the good faith exception, based upon the officer's reasonable belief of the sufficiency of the evidence (Court File No. 108). In accordance with the following, the Court will ACCEPT and ADOPT the magistrate judge's R&R (Court File No. 171), and will DENY Defendant's motion to suppress the fruits of the search (Court File No. 108).
1. Probable Cause Existed
The R&R contains an impressively-thorough review of the jurisprudence of the United States Court of Appeals for the Sixth Circuit in regard to the Fourth Amendment, probable cause, and residential searches (see Court File No. 171, unnumbered pp. 10-13). Defendant does not dispute the accuracy of that review of the law, but argues the R&R is incorrect in its factual finding that the evidence available in the affidavit supporting the search warrant was sufficient to meet that legal standard (see Court File No. 175).
The Court adopts the legal review in the R&R, and will briefly summarize it here (see Court File No. 171, unnumbered pp. 10-13). Under the Fourth Amendment, a search warrant can only be issued when the provided facts indicate "a fair probability that evidence of a crime will be located on the premises of the proposed search" United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (citations omitted). These facts must establish a nexus between the residence and the evidence sought, and not merely establish that the owner of the residence is suspected of a crime. See United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004), cert. denied, 543 U.S. 851 (2004); United States v. Pinson, 321 F.3d 558, 564 (6th Cir. 2003), cert. denied, 540 U.S. 912 (2003). Where the facts provided to support the search warrant are supplied by an informant whose reliability has not been established, those facts must contain "substantial independent police corroboration." Frazier, 423 F.3d at 532.
In relation to residential searches of alleged drug dealers, the Sixth Circuit has repeatedly held probable cause exists where (a) the facts demonstrate the defendant conducts a continual and ongoing drug operation, and (b) an officer, through his experience, observes such drug dealers often keep drugs or items related to drug activity in their homes (see Court File No. 171, unnumbered pp. 11-13) (citing, e.g., United States v. Blair, 214 F.3d 690, 696 (6th Cir. 2000), cert. denied, 531 U.S. 880 (2000); United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998); United States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996)).
Defendant argues, at best, the government's evidence only establishes that Defendant "attempted to make a drug purchase on one occasion," and thus fails to demonstrate Defendant conducted a continual and ongoing drug operation (Court File No. 176, p. 2).*fn1 This Court, as did the R&R, rejects this characterization of the evidence (see Court File No. 171, unnumbered pp. 13-15). An unidentified informant, referred to as a source of information ("SOI"), informed police authorities that he had made several deliveries of two to ten kilograms of cocaine to Defendant (Court File No. 108, Attachment 1). This statement was corroborated by the subsequent behavior of Defendant, as observed by police officers. First, the SOI ...