United States v. Lykins, CRIMINAL ACTION NO. 12-02-DLB
| Decision Date | 30 May 2012 |
| Docket Number | CRIMINAL ACTION NO. 12-02-DLB |
| Parties | UNITED STATES OF AMERICA PLAINTIFF v. JAMES EDWARD LYKINS DEFENDANT |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on Defendant's Motion to Suppress (Doc. # 17) all evidence seized from his residence and curtilage on October 12, 2011. After the motion was fully briefed (Docs. # 21, 22), the Court held an evidentiary hearing on April 3, 2012 to develop the factual basis for Defendant's motion. (Doc. # 29). Defendant Lykins was present at the hearing and represented by Attorney Steven Howe. The United States was represented by Assistant United States Attorney Robert McBride. The hearing was recorded by Official Court Reporter Lisa Wiesman. At the conclusion of the hearing, the Court allowed the parties additional time to submit supplemental briefing. All supplemental briefing having now been filed (Docs. # 32, 34), this matter is ripe for the Court's consideration. For the reasons set forth herein, Defendant's Motion to Suppress is hereby denied.
In his Motion, Defendant seeks to suppress all evidence seized from his residence and curtilage on October 12, 2011. In support, Defendant argues that the search of hisresidence and seizure of evidence was unreasonable in violation of his rights secured by the Fourth Amendment of the U.S. Constitution. Specifically, Defendant argues the search was conducted without a warrant, and the officers did not otherwise have reasonable suspicion to conduct a warrantless search of his residence pursuant to Griffin v. Wisconsin, 483 U.S. 868 (1987).
Three witnesses testified during the April 3, 2012 evidentiary hearing. The United States called United States Probation Officer John D'Alessandro and Pendleton County Sheriff Craig Peoples. Defendant recalled D'Alessandro and also testified on his own behalf. Weighing the credibility of the witnesses, and considering the exhibits admitted during the hearing, the Court makes the following factual findings:
1. On October 25, 2004, Defendant Lykins was convicted of conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846. Defendant was sentenced by the undersigned to a sixty (60) month term of imprisonment, followed by a five (5) year term of supervised release.
2. The October 25, 2004 Judgment included thirteen (13) Standard Conditions and three (3) Special Conditions of Supervised Release. (Ex. # 1). Among the Standard Conditions, Defendant was ordered to "permit a probation officer to visit him ... at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer." (Id. at 3). Additionally, under the Special Conditions of Supervised Release, Defendant was ordered to "submit his person, residence and curtilage, office or vehicle to a search, upon direction and discretion of the United States Probation Office." (Id. at 4).
3. As part of the United States Probation Office's standard procedure for preparing an inmate to transition to supervised release, United States Probation Officer John D'Alessandro met with Defendant on August 5, 2009 to discuss the details of his supervised release. During that discussion, D'Alessandro provided Defendant with a copy of the Judgment and read each of the conditions of supervised release contained in the Judgment to Defendant. D'Alessandro and Defendant then signed and dated the Judgment under an Acknowledgment stating, (Ex. # 1, at 4).
4. On September 12, 2011, while Defendant was still under supervised release, the United States Probation Office received an anonymous letter stating that (Ex. # 4). Based on the anonymous letter, D'Alessandro determined that he should visit Defendant at his home and give Defendant a drug test.
5. At approximately 1:30 p.m. on October 12, 2011, D'Alessandro was traveling between Maysville, Kentucky and Defendant's residence when he stopped at the Pendleton County Sheriff's Office to speak to Sheriff Craig Peoples about an unrelated matter. At the conclusion of their conversation, D'Alessandro mentioned that he was on his way to Defendant's residence to conduct a home visit. In response, Peoples informed D'Alessandro that he had just received an e-mail notification from the National Precursor Log Exchange ("NPLEx") stating that Defendant's wife, Christa Lykins (also known as "Christa D. Vance"), had purchased pseudoephedrine, a precursor to methamphetamine, at 12:56 p.m. in Boone County, Kentucky. (Ex. # 2). The e-mail notification listed Defendant's address as one of Christa Lykins' last known addresses. (Id.).
6. Peoples explained to D'Alessandro that the NPLEx notification on Christa Lykins gave him concern about Defendant's potential criminal activity. He explained that he had been investigating various individuals, including Christa Lykins and Defendant, for a couple of years for their involvement in the manufacturing of methamphetamine. As part of his investigation, he received notifications from NPLEx whenever any of these individuals purchased pseudoephedrine. When Peoples received a notification from NPLEx about any of these individuals, "it lead[ ] him to believe that if they're not preparing to manufacture methamphetamine that day, then they will maybe in the . . . next day or so." (Doc. # 31, at 55). Peoples shared these suspicions with D'Alessandro.
7. Based on the Defendant's prior methamphetamine related conviction, the anonymous letter, and the NPLEx notification, D'Alessandro's suspected that Defendant was not only using methamphetamine, but that "there may be some type of methamphetamine tracking (sic) or the purchasing of precursors at [Defendant's] residence." (Doc. # 31, at 15). After gathering this information, D'Alessandro requested that Peoples accompany him to Defendant's residence to conduct a standard home inspection.1
8. Between twenty (20) and thirty (30) minutes later, D'Alessandro and Peoples arrived at Defendant's residence in separate vehicles. D'Alessandro walked to the front door and knocked as Peoples proceeded around the side of the house. Without delay, Defendant answered the door. D'Alessandro notified Defendant that he had concerns thatDefendant was violating the terms of his supervised release based on a letter sent to the Probation Office.
9. Defendant opened the door and allowed D'Alessandro and Peoples into the residence. D'Alessandro walked in first and held the door open for Peoples to follow. As D'Alessandro entered, he could smell hamburgers cooking on the stove. Peoples followed D'Alessandro through the door and smelled a chemical odor, which he later described as "a very distinct odor, [that] outweighed the smell of the cooking grease."
10. Upon smelling the chemical odor, Peoples tapped D'Alessandro on the shoulder and asked if he smelled something. Peoples described the smell to D'Alessandro, at which time D'Alessandro distinguished the chemical odor from the hamburgers.2 D'Alessandro later referred to the chemical odor as a "metallic smell." Peoples also indicated to D'Alessandro that the chemical odor smelled like Coleman fuel, a potential ingredient used to manufacture methamphetamine.3
11. Although D'Alessandro's original intention was to conduct a home inspection, after identifying the chemical odor, he determined that he and Peoples needed to conduct a search. Once inside the residence, D'Alessandro reminded Defendant that his conditions of supervised release included a search condition and that it was their intention to search Defendant's residence. Defendant responded,
12. D'Alessandro and Defendant went into the kitchen to talk. D'Alessandro requested that Defendant submit to a drug test, but Defendant responded that he was unable to immediately give a urine sample. It was D'Alessandro's experience that individuals usually responded in this fashion when they had recently used drugs and were concerned about the results of the drug test.
13. While D'Alessandro and Defendant were discussing the drug test, Peoples went to Defendant's bedroom to conduct a search.4 Inside a night stand, Peoples founda blue and black bag containing Liquid Fire, red devil lye, plastic hoses, coffee filters, and other household items. Peoples brought the bag into the living room, where D'Alessandro and Defendant were located, and asked Defendant about the items. Defendant denied any knowledge of the contents of the bag. Peoples then explained that they were items commonly used to manufacture methamphetamine, but Defendant did not respond.
14. Peoples then went outside to continue his search. He found additional items used to manufacture methamphetamine in the shed, on the deck, and underneath the skirting of the residence. After finding multiple items outside, Peoples returned inside and asked whether there was anything at the residence that could potentially harm the officers. Defendant responded that there was an "old cook" in a hutch against the wall in the kitchen. Peoples opened the bottom doors on the hutch and located a two-liter bottle. Batteries with stripped lithium and other precursors to methamphetamine were found on the top of the hutch. Peoples found a firearm inside the microwave. Defendant was then placed in custody.
15. Other items found during the search included: (1) Coleman fuel, which Peoples identified as the source of the chemical or metallic smell; (2) a black box containing multiple bags of methamphetamine; and (3) a cigarette box containing unspecified items.
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