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United States v. Thirkill

United States District Court, M.D. Tennessee, Nashville Division

October 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EMMANUEL THIRKILL, Defendant.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.

         The United States of America indicted Emmanuel Thirkill on charges of (1) conspiracy to distribute and to possess with intent to distribute cocaine; (2) three counts of distribution and possession with intent to distribute cocaine within 1, 000 feet of public housing; (3) possession with intent to distribute cocaine within 1, 000 feet of public housing; (4) possession of a firearm in furtherance of drug trafficking; (5) possession of a firearm by a convicted felon; and (6) possession of ammunition by a convicted felon. (Doc. No. 20.) Before the Court is Thirkill's Motion to Suppress the evidence obtained by the Nashville Metropolitan (“Metro”) Police Department during a search of his home. (Doc. Nos. 44.) On September 18, 2017, the Court held a hearing on the motion. For the following reasons, Defendant's motion is DENIED.

         I. FACTS

         On October 21, 2016, Metro Police Department Detectives witnessed through surveillance cameras Thirkill selling narcotics at 196 Charles E. Davis Boulevard, Nashville, Tennessee. (Doc. No. 44-4 at 10.) On November 3, 2016, using the surveillance cameras, Metro Police Department Detectives again observed Thirkill distributing narcotics at 196 Charles E. Davis Boulevard. (Doc. No. 44-4 at 12.) Based on this information, in addition to information regarding Thirkill's cars, on November 8, 2016, Bureau of Alcohol, Tobacco, and Firearms Special Agent Riley O'Brien applied to United States Magistrate Judge Alistair Newbern for a tracking warrant on Thirkill's two cars.[1] (Doc. No. 44-4.) Judge Newbern granted O'Brien's application and issued a tracking warrant for each car. (Doc. No. 44-4 at 1, 3.) The tracking warrants stated that the cars were in this district, and gave O'Brien a deadline to install the tracking devices, for continual use not to exceed 45 days. (Id.) It allowed O'Brien to enter into the cars in the daytime, between 6:00 a.m. to 10:00 p.m., to install the tracking devices. (Id.) The validity of these warrants is not in question.

         On November 14, 2016, at approximately 5:40 a.m., agents began surveying the area around 149 Painter Drive, Nashville, Tennessee, where the cars were parked, in preparation to install the tracking devices. (Doc. No. 44-5 at 8.) Although there was a “significant amount of daylight already present, ” the officers found an “opportunity to surreptitiously secure the devices, ” and believed that by the time the agents successfully installed the devices it would be after 6:00 a.m. (Id.) Within twenty-four hours of installing the devices, O'Brien realized that the time stamp indicated that they were installed before 6:00 a.m., and therefore outside the parameters of the warrant. (Id. at 9.) He therefore decided to stop monitoring the devices and any information gathered would not be used in the investigation. (Id.)

         On November 16, 2016, O'Brien applied for a new tracking warrant on Thirkill's cars. (Doc. No. 44-5 at 4, 17.) Judge Newbern granted the applications, this time allowing agents to enter the cars to install the tracking devices “at any time in the day or night because good cause has been established.” (Doc. No. 44-5 at 1, 15.) On both tracking warrants, Judge Newbern left blank the date that officers must install the tracking device by, although pre-printed on the warrant included the phrase “not to exceed ten days.” (Id.) The parties do not dispute that on November 22, 2016, officers attached the tracking devices, as allowed in Judge Newbern's warrant. (Doc. No. 44-1 at 3; Doc. No. 48 at 6.)

         On December 6, 2016, Detective Andrew Grega of the Metro Police Department applied to a Davidson County General Sessions Judge (the “Magistrate”) for a “document” warrant to search 149 Painter Drive. (Doc. No. 44-2.) In his Affidavit, Grega swore that the Tennessee Department of Safety records show 149 Painter Drive is Thirkill's home address. (Doc. No. 44-2 at 5.) He also noted that Thirkill had eight felony convictions, including attempted reckless aggravated assault, possession of marijuana, two convictions for being a convicted felon in possession of a weapon, and four convictions for possessing Schedule II drugs. (Doc. No. 44-2 at 5.)

         The Affidavit indicated that Thirkill sold drugs five times at 196 Charles E. Davis Boulevard, near the JC Napier/Tony Sudekum public housing. (Doc. No. 44-2 at 5-6.) On October 21, police witnessed Thirkill sell “DB” a gram of cocaine. (Doc. No. 44-2 at 5.) DB also told officers he had previously purchased cocaine from Thirkill in the same area. (Doc. No. 44-2 at 5.) On November 3, 2016, police witnessed Thirkill sell three grams of cocaine to “JR” at the Charles E. Davis address. (Doc. No. 44-2 at 6.) On November 16, 2016, police witnessed Thirkill sell “RH” three grams of crack cocaine near the Charles E. Davis address. (Doc. No. 44-2 at 6.) On November 22, 2016, somebody called the Metro Police Department crime stoppers line to complain that Thirkill was selling crack from the Charles E. Davis address. On November 28, 2016, the Metro Police Department received a similar call on its crime stoppers line, which also included that Thirkill is a known gang member and is known to carry a firearm. (Doc. No. 44-2 at 6.)

         Grega's Affidavit also discussed the tracking device police installed in Thirkill's cars. Grega swore that police observed, through the tracking devices, Thirkill travel from 149 Painter Drive to an area around the JC Napier/Tony Sudekum Public Housing. (Doc. No. 44-2 at 6.) Police also tracked Thirkill to 125 Fain Street and the 100 block of Charles E. Davis Boulevard, “where Thirkill has been recorded performing several illegal narcotics related sales.” (Doc. No. 44-2 at 6.) The Affidavit noted that the tracking devices monitored Thirkill leaving and returning to 149 Painter Drive on a daily basis. (Doc. No. 44-2 at 6.) On two occasions, officers followed Thirkill to 149 Painter Drive while he was driving in vehicles in which police installed the tracking devices. (Doc. No. 44-2 at 6.) As such, Grega believed Thirkill utilized 149 Painter Drive “as a common residence.” (Doc. No. 44-2 at 6.)

         Based on the above facts, Grega swore that he believed Thirkill was utilizing 149 Painter Drive “to store drugs and/or drug proceeds.” (Doc. No. 44-2 at 6.) He therefore sought a warrant to search the house. In doing so, Grega relied on his experience and knowledge. (Doc. No. 44-2 at 7-9.) Based on his experience, Grega believes that drug dealers often, among other things, maintain records, conceal currency, and store drugs and weapons at their residences. (Doc. No. 44-2 at 8.) Based on this information, the Magistrate issued a “document” search warrant on December 6, 2016, for 149 Painter Drive. (Doc. No. 44-2 at 1-2.) The warrant authorized detectives to search, generally, for any records that pertain to Thirkill's drug dealing, as well as firearms. (Doc. No. 44-2 at 1.)

         At 1:30 p.m., the Metro Police Department Gang Unit executed the search warrant at 149 Painter Drive. (Doc. No. 48-2 at 5.) During the search, detectives located a safe in the master bedroom closet. (Id.) Inside the safe was a large bag containing five individual bags with a white substance that field tested positive for cocaine. (Id.) There were also several bundles of currency in the safe, and a Glock 19 firearm under the bed. (Id.) Based on this information, as well as the information from Grega's previous Affidavit, Grega applied for and received a second “drug” search warrant from a different Davidson County General Sessions Judge. (Doc. No. 48-2 at 5.)

         II. ANALYSIS

         Thirkill argues that the installation of the tracking devices were illegal, and thus everything that followed should be suppressed. (Doc. No. 44-1 at 3.) In the alternative, he argues that the search warrant for 169 Painter Drive was not supported by probable cause, and therefore the evidence ...


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