Fagan v. Commonwealth
| Decision Date | 17 April 2020 |
| Docket Number | NO. 2019-CA-000471-MR,2019-CA-000471-MR |
| Parties | ANTHONY FAGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
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 heentered 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 callerbelieved 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,3 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.
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 andexperience, 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 Leon4 applied and thus precluded Fagan from suppressing the evidence.
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:
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