United States v. Tomes
| Decision Date | 29 January 2018 |
| Docket Number | CRIMINAL ACTION NO. 3:16-CR-00113-TBR |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF v. JOHN G. TOMES, JR., DEFENDANT |
| Court | U.S. District Court — Western District of Kentucky |
This matter comes before the Court on several motions filed by Defendant John G. Tomes, Jr., [R. 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137], to which the United States ("the Government") has responded, [R. 145, 147, 148, 149, 150, 151, 152, 153, 154]. Fully briefed, these matters stand ripe for adjudication. The Court will address each motion in turn.
Tomes moves the Court to compel the Government to produce all statements made by his former co-defendant, Jamaule Hollis, to law enforcement officers. [R. 127 at 1.] Federal Rule of Criminal Procedure 16(a)(2) states:
Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.
FED. R. CRIM. P. 16(a)(2). As Hollis's statements could be considered an internal document or a statement made by a prospective government witness, Tomes's motion is denied. See, e.g., United States v. Higdon, 68 F. Supp. 3d 807, 817 (E.D. Tenn. 2014) (); United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974) ().
Tomes also claims that he should be provided these statements pursuant to Brady v. Maryland1 because if Hollis failed to identify Tomes as a drug supplier, it could prove to be exculpatory. [R. 127 at 2.] In response, the Government states that they will disclose any exculpatory or impeachment material in time for Tomes to use it at trial. [R. 151 at 1.] However, the Government also explains that Hollis's statements contain no exculpatory evidence that would trigger its duty to disclose them under Brady. [Id. at 2.] As cited by the Government, the Sixth Circuit has stated that "the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure." United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988); see also United States v. Shanklin, No. 3:16-CR-85-TBR, 2016 WL 7395304, at *2 (W.D. Ky. Dec. 21, 2016) (Russell, J.) (quoting Presser, 844 F.2d at 1281). As the Government has determined that the statements are not exculpatory, the statements are not required to be disclosed under Brady.2 Thus, Tomes's Motion to Compel, [R. 127], is DENIED.
Tomes moves the Court to suppress all evidence obtained directly or indirectly pursuant to a search warrant concerning three residences in Louisville, Kentucky. [R. 129 at 1.] Tomes argues that this evidence should be suppressed because the affidavits prepared by Jeffersontown Police Detective Steven Presley in support of the warrants failed to include information regarding the "lack of veracity and reliability" of the known informant, Jamaule D. Hollis. [Id.] Thus, Tomes reasons, "this information denied the issuing judge a substantial basis to conclude that probable cause existed." [Id. at 1-2.] The Government responds that Tomes's claim is incorrect because the affidavit includes information regarding Hollis's reliability. [R. 145 at 3.] The Court agrees with the Government.
The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV. In furtherance of protecting that interest, the Fourth Amendment demands that search warrants only issue upon a showing of probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause justifying the issuance of such a search warrant exists where, taking the totality of the circumstances, the affidavit supporting the warrant provides the issuant Magistrate with a "substantial basis . . . to believe 'there is a fair probability that contraband or evidence of illegal activity will be found in a particular place.'" United States v. McNally, 327 F. App'x 554, 556 (6th Cir. 2009) (quoting Gates, 462 U.S. at 238). Further, in order "[t]o justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). This requires "a nexus between the place to be searched and the evidence sought." Id. Therefore, the underlying affidavit which supports the search warrant must actually "contain adequate supporting facts about the underlyingcircumstances to show that probable cause exists for the issuance of the warrant." United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (citing Whiteley v. Warden, 401 U.S. 560, 564 (1971)). Also, "[t]he supporting facts in an affidavit need not be based on direct knowledge and observations of the affiant, but may come from hearsay information supplied by an informant." Id. (citing Jones v. United States, 362 U.S. 257, 269-70 (1960)). The decision of the Magistrate who initially issued the warrant will be reversed by this Court only if her "determinations were arbitrarily exercised." United States v. Archibald, 685 F.3d 553, 557 (6th Cir. 2012).
This Circuit has further interpreted Gates, instructing that a court, in reviewing the sufficiency of the evidence supporting probable cause, is "limited to examining the information contained within the four corners of the affidavit" in light of the totality of the circumstances. United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009). In order to deter future violations of the Fourth Amendment, the typical remedy for searches made with a defective warrant is suppression. See United States v. Woodbury, 511 F.3d 93, 99 (1st Cir. 2007). Notably though, suppression is not always warranted and, depending upon the circumstances, evidence may be saved from suppression where an officer acts in objectively good faith in executing an otherwise defective warrant. United States v. Leon, 468 U.S. 897, 922 (1984). This means that, in situations where "evidence [is] obtained in objectively reasonable reliance on a subsequently invalidated search warrant," the "marginal or nonexistent benefits [of suppression] . . . cannot justify the substantial costs of exclusion." Id. In such a case, although probable cause is lacking, the fruits of the search need not be suppressed.
In short, Tomes's argument that Presley's affidavit contains no information regarding Hollis's reliability can be proven false simply by reading the affidavit. The affidavit describesHollis's criminal history as well as his activities as a drug dealer, giving the judge an opportunity to assess the credibility of Hollis's account. [See 145-1 at 4-6 (Presley Affidavit).] Furthermore, Presely's affidavit includes added indicia of reliability, such as the fact that Hollis is a named informant, Hollis makes statements against his penal interest, and the police were able to corroborate the addresses of the "stash houses" given to them by Hollis.3 [Id.] In short, the Court finds that the affidavit included information regarding Hollis's reliability, and, therefore, DENIES Tomes's Motion to Suppress, [R. 129].4
As an alternative to his Motion to Suppress, Tomes moves the Court to grant an evidentiary hearing pursuant to Franks v. Delaware5 due to a false statement and material omissions allegedly contained in the affidavit in support of the search warrant. [R. 128.]
To merit a Franks hearing, the movant must make "a substantial preliminary showing" that (1) the affiant included a statement, either deliberately false or with reckless disregard for its truth, in the warrant affidavit, (2) without which there could be no finding of probable cause. United States v. Pirosko, 787 F.3d 358, 369 (6th Cir.), cert. denied, — U.S. —, 136 S. Ct. 518 (2015). Warrant affidavits "carry with them 'a presumption of validity,' " and so the challenger's attack "must be more than conclusory . . .." United States v. Stuart 507 F.3d 391, 396 (6th Cir. 2007) (quoting Franks, 438 U.S. at 171). That is, he must point to specific false statements and then "accompany his allegations with an offer of proof," usually in the form of supporting affidavits. United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). Moreover,"[t]he movant must also show that the allegedly false statements were necessary for the magistrate's determination of probable cause." United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008). Thus, "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. (quoting Franks, 438 U.S. at 171-72).
Tomes claims that Detective Steven Presley's affidavit in support of a search warrant concerning a residence and a car in Louisville amounted to a false statement due to a discrepancy between Presley's affidavit and the affidavit of Special Agent Milton...
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