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United States v. Burney

United States District Court, E.D. Tennessee, at Chattanooga

January 14, 2015

UNITED STATES OF AMERICA
v.
ALLEN BURNEY

REPORT AND RECOMMENDATION

SUSAN K. LEE, Magistrate Judge.

Defendant Allen Burney ("Defendant") filed a "Motion Pursuant to Franks v. Delaware and Motion to Suppress" [Doc. 14]. Plaintiff United States of America (the "government") filed a response in opposition to the motion [Doc. 18]. Defendant did not file a reply. For the reasons stated herein, I RECOMMEND that Defendant's request for a Franks hearing and motion to suppress be DENIED.

I. BACKGROUND

Defendant is charged with possession of cocaine base ("crack") with the intent to distribute and with possession of a firearm by a person previously convicted of domestic violence based upon evidence seized during the execution of a search warrant on May 6, 2014. Attached to Defendant's motion as a collective exhibit are the Affidavit for Search Warrant, without the attached photographs and drawings, signed by Detective Zach Fuller of the Chattanooga Police Department (the "Affidavit") and the Search Warrant (the "Warrant") issued by Hamilton County General Sessions Court Judge Gary W. Starnes [Doc. 14-1].[1] It appears to be uncontested that Defendant had an expectation of privacy with respect to the searched residence.

As relevant to the instant motion, the "four corners" of the Affidavit detail Detective Fuller's law enforcement experience and training related to controlled substance issues and then sets forth the following information:

2. Your affiant received information from a confidential informant concerning crack cocaine being sold from the said house.
3. The said informant advised me that within the last 72 hours said informant was on the premises of the potential defendant in this case, John Doe, alias a black male with a slim build, who resides in or occupies and is in possession of the following described premises, to wit [details of address and description of house with attached photographs]. While there said informant saw legend and/or narcotic drugs including crack cocaine, the same being on said premises in the possession of and control of John Doe, Alias a b/m with short hair and slim build.
4. The said informant further advised your affiant that John Doe, Alias sells crack cocaine to make a profit.
5. Your affiant was able to corroborate some of the information provided by the said informant. During surveillance and controlled buys, short term traffic was observed at the above address which is consistant [sic] with illegal narcotic sells [sic].
6. The said informant has made several controlled buys from the above said address for your affiant, with one buy occurring within the last 72 hours. The following controls were in place: Under the direction and control of your affiant, the said informant was physically checked or searched by your affiant for any type of contraband, your affiant found none on the informant who was visually monitored entering the premises while also being electronically monitored. The informant conducted the hand to hand drug transaction, specifically money for crack cocaine. Your affiant then observed the informant leave the said premises. Your affiant, close in time thereafter personally retrieved from the informant, the crack cocaine purchased by the informant and suspected to be crack cocaine. Your affiant personally inspected the crack cocaine and found it to match in color, texture, shape, and odor the controlled substance known as crack cocaine. Your affiant followed appropriate procedures or safeguards which ensured that the currency supplied to the informant prior to the purchase was spent as directed, and your affiant again physically checked or searched the informant and found no other contraband on the informant. This purchase was made by the informant, the informant made no stops or had no contact with any individuals before handing the crack cocaine to your affiant.
7. Your affiant has known the said informant for approximately three years.
8. The said informant has provided your affiant information in the past that has lead to the investigation of individuals in violation of vice laws.
9. Investigator Wynn provided information received from a separate confidential informant pertaining to drugs being sold from the ...

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