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United States v. Anderson

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

May 15, 2018



          ALETA A. TRAUGER United States District Judge

         Before the court is the Motion to Suppress Evidence (Doc. No. 100) filed by defendant Damion Anderson, seeking to suppress evidence seized pursuant to a search warrant from a home he was visiting. The Government has filed a Response (Doc. No. 115), and Anderson has filed a Reply (Doc. No. 120). An evidentiary hearing was held on April 20, 2018. For the reasons set forth herein, the court will DENY the Motion to Suppress.

         I. Background

         A. The Search Warrant and Affidavit

         In support of his request for the issuance of a Search Warrant for 821 Lackey Circle in Gallatin, Tennessee on March 23, 2017 (“Warrant”), Investigator James Kemp of the Gallatin Police Department (“GPD”) submitted a Search Warrant Affidavit (“Affidavit”) in which he attested under oath that there was “probable cause” to believe that evidence of violations of “T.C.A. Section 39-13-201 Criminal Homicide, T.C.A. 39-17-417 Possession of a Controlled Substance, and T.C.A. 39-17-425 Possession of Paraphernalia” would be found at that location. (Doc. No. 100-1, at 1.) He described the evidence to be sought as including computers and related electronic devices “used to facilitate the aforementioned criminal activity”; controlled substances and paraphernalia such as scales, mixing devices, and packaging materials; financial records; currency; and firearms, and “testified” that such evidence “is now located and may be found . . . on said premises. (Id. at 1-2.) The Affidavit described with some particularity the premises to be searched as “a public housing two story dwelling on Lackey Circle shared with unit ‘819.' . . . There is a front door that leads to ‘821' with the numbers ‘821' above the small porch.” (Id. at 2.) And the Affidavit included the following summary as the basis for issuance of the warrant:

Your Affiant is currently a certified law enforcement officer with the [GPD] and is currently assigned to the Criminal Investigations Division. Your Affiant has worked in the field of law enforcement for 11 years [and] has been to several specialized training schools involving the investigation, arrest, and prosecution of criminals engaged in the entire gambit of criminal activity. . . .
On 3-23-17 the [GPD] responded to 562 Spencer Ave. located in Gallatin Sumner County in reference to a death investigation. . . . 23 year old Katherine Stone was located deceased in her bed she shared with her boyfriend Josh [Hunter]. In plain view laying on the bed beside Stone was a plastic bottle that appeared to have been used to smoke illegal narcotics based on my training and experience. There was also a grinder observed in plain view in the room.
Your affiant interviewed Josh. Josh admitted that him, Stone, and Stone's sister, Kristen, went to purchase heroin the previous night from a guy known to him as “Pops” or “L” and a girl known at “Titi.” Kristen stated that “Titi's” real name is Tatiana Johnson. I located a Tatiana Johnson in RMS and pulled her Tennessee driver's license and picture. The address listed on the DL is 821 Lackey Circle in Gallatin, Sumner County. I showed the DL photograph to both Josh and Kristen independently. Both identified the person in the photo as “Titi.” Josh and Kristen then each pointed out independently 821 Lackey Circle as where they had purchased the heroin at the previous night. In front of 821 Lackey Circle was a 4D sedan bearing Tennessee tag 5E99M3. I ran this plate through dispatch and found it returned to Tatiana Johnson. I then called Gallatin Electric. They advised the electric was turned on at 821 Lackey Circle under the name of Tatiana Johnson.
Josh stated that he and Katherine bought “4 points” of heroin from this house for $100.00. He stated that Katherine was given two points and he took two points. He stated that Katherine then ingested the heroin by snorting it shortly after they purchased it.
Your affiant is seeking a search warrant for the house and property of 821 Lackey Circle Gallatin, Sumner County, Tennessee for the above mentioned evidence. Your affiant feels that such evidence found on the above mentioned property will directly assist in the investigation and/or prosecution of T.C.A. Section 39-13-201 Criminal Homicide, T.C.A. 39-17-417 Possession of a Controlled Substance, and T.C.A. Possession of Paraphernalia.

(Id. at 2.)

         On the basis of that Affidavit, a judge of the Sumner County General Sessions Court issued the requested Warrant at 11:25 a.m. on March 23, 2017. (Id. at 5.) The GPD executed the Warrant on the same day. According to the defendant, during the search of 821 Lackey, police officers discovered a “tan-colored powder substance inside a plastic bag which was located inside a man's size-8 shoe which was located in a travel bag inside the home.” (Doc. No. 100, at 2.) The substance weighed 19.2 grams and tested positive for heroin and Fentanyl. (Id.) Based on that evidence, defendant Damion Anderson, who was apparently an overnight guest at 821 Lackey and was present at the time the Warrant was executed, was arrested and indicted on charges of conspiracy to distribute heroin and fentanyl, the use of which resulted in the death of an individual, in violation of 21 U.S.C. § 846 (Count 1), and possession with the intent to distribute and distribution of heroin and fentanyl, the use of which resulted in the death of an individual, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count 2). (Indictment, Doc. No. 1.)

         B. The Motion to Suppress and Hearing

         The defendant filed his Motion to Suppress on March 16, 2018, asserting that (1) the allegations in Kemp's Affidavit were insufficient to establish probable cause because they did not include information showing “a fair probability” that illegal drugs would be found inside the home at 821 Lackey (Doc. No. 100, at 3 (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)); (2) the Affidavit was affirmatively and intentionally false and misleading insofar as it omitted material facts, the presence of which would have negated any possible conclusion of probable cause, including that the drug purchase occurred outside the home at 821 Lackey, rather than inside, and that the purchase was from someone who identified himself only as Tatiana Johnson's “baby-daddy, ” rather than from Johnson herself; and (3) Kemp omitted other material facts from the affidavit to create the false impression that Kristen Stone and Josh Hunter were reliable informants, including (a) Hunter's use of some of the drugs before he went to work on March 22 and during his breaks at work; (b) his acknowledgment that he and Katherine Stone used unspecified “illegal drugs, ” including pills; (c) that Kristen Stone, Katherine's sister, [1] told two different stories about how she had spent the evening before her sister died, thus admittedly lying in at least one of them; and (d) that there were three adult “witnesses, ” in addition to Kristen and Hunter, but no indication that any of them could or would corroborate Hunter and Kristen's stories of the drug purchase at 821 Lackey.

         The defendant argues that, as a result of material omissions that give rise to false impressions, the warrant is not supported by probable cause and is not salvaged by the good-faith exception established by United States v. Leon, 468 U.S. 897 (1984). The defendant also argues that Leon does not apply because the affidavit itself is so “bare bones” that no reasonable officer would believe that it supplies probable cause to search a home.

         The Motion to Suppress specifically requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), [2] “to demonstrate the material omissions which further undermine probable cause and, as with its bare-bones status, exclude this warrant from the good-faith exception.” (Doc. No. 100, at 17.) Shortly after the motion was filed, the court set a hearing for April 20, 2018. A large portion of that hearing was devoted to counsel's arguments as to whether a Franks hearing was warranted at all. The court ultimately determined, under Franks, that the defendant had carried his burden of establishing that the Affidavit contained a false statement that was either knowingly made or made with reckless disregard for the truth by stating that the heroin was purchased “from” the house at 821 Lackey, which suggested that the heroin came from inside the house. The court also permitted counsel for the defendant to inquire about other omissions from the warrant affidavit that counsel believed were material.[3]

         The United States called Investigator Kemp to testify. Kemp testified that he arrived on the scene of Katherine Stone's death early in the morning. He noted that two men, Josh Hunter and Patrick Williams, were outside the home and others were inside. Katherine Stone lay deceased on her bed. Near her were a green plastic bottle that had puncture and burn marks on it, of the type that Kemp had seen people use to smoke marijuana. Katherine had foam coming out of her mouth. Based on his prior experience, Kemp immediately suspected a heroin overdose, particularly in light of Katherine's youth (age 23) and the absence of any signs of trauma or violence. He described the grinder on the dresser, which is also mentioned in his Affidavit, as the type of grinder commonly used to grind marijuana.

         Kemp briefly interviewed Josh Hunter at the scene, and Hunter told him that, the night before her death, he and Katherine had purchased drugs from a person he identified as “Titi.” He also mentioned someone called “Pops” or “L.” Kemp had Hunter and Kristen transported to the police station for closer questioning.

         Kemp recruited other officers to assist him in his investigation at that point. Officer Brandon Troutt began re-interviewing Hunter, while Kemp was engaged in the paperwork necessary to obtain and execute a search warrant for the house in which Katherine had died. Once he had seen to that, he left the search of that house to another investigator and returned to the police station to oversee the interviews of Josh Hunter and Kristen Stone. It was during his interview at the police station that Hunter specifically stated that he and Katherine had purchased four “points” of heroin (or .4 grams) at 821 Lackey for $100. Kemp asked Hunter if he could take him to where he had purchased the heroin. Kemp and Troutt together drove with Hunter, who directed them to 821 Lackey. They parked across the street from the residence and could see that it was a two-level duplex with number 821, clearly marked with numbers above the porch on the right side of the building. A vehicle, the tag of which indicated it was registered to Tatiana Johnson, was parked directly in front of 821. Kemp stated that, by then, Hunter had already identified Tatiana Johnson as the person he knew as “Titi.”

         Kemp testified that, prior to the issuance of the Warrant, he never discussed with Hunter the precise details of where exactly the deal took place, whether inside the apartment or outside. He claimed that Hunter stated only that he and Katherine had gotten the drugs “from” 821 Lackey. Kemp testified that, when he completed the Affidavit, his understanding was that the drugs came “from” that residence. The only people Hunter had identified by then were Tatiana Johnson, or “Titi, ” who was his point of contact, and someone named “Pops.” Kemp could not recall Hunter's precise language. The court questioned Kemp directly, asking him if he had asked Hunter whether he had gone to the door or inside the house. Kemp responded that, at that point, he and Troutt had not asked those precise questions. When asked why not, he responded that he had a lot of people to interview and a lot going on. Kemp stated that he later learned, but not before applying for the Warrant, that an individual-who identified himself only as Tatiana Johnson's “baby-daddy”-had come out of the house and that the deal took place outside the house.

         Kristen Stone was interviewed at the police station, initially by Officer Jones. During this interview, in describing the timeline of events prior to Katherine's death, she failed to mention that she had driven Katherine and Hunter to 821 Lackey to purchase drugs. Confronted with Hunter's story, which contradicted hers, she admitted that she had driven them there, while both her child and Katherine and Hunter's child were in the car. The two investigators who were involved with the process told Kemp that Kristen had agreed to show them where the drug purchase took place. Kristen had directed them to 821 Lackey and indicated that that was where she had driven Hunter and Katherine to purchase drugs.

         Kemp testified that, after he obtained the Warrant, the investigation continued and many additional interviews were conducted, including additional interviews of Josh Hunter. Kemp claimed that he developed a substantial amount of information following the issuance of the Warrant but that he was in a hurry to obtain the Warrant because someone had died. Based on prior experience, he knew that, when one person dies from a “bad batch” of heroin, others would continue to die unless and until that particular batch was taken off the street. He further confirmed, however, that he did not have any concerns about whether the Warrant was properly supported at ...

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