United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant Hicks' motion
to suppress. A hearing was held on the matter before the
undersigned on February 21, 2019.For the reasons that follow,
the motion to suppress is denied.
Hicks is charged by way of indictment with possession of a
firearm and ammunition by a convicted felon in violation of
18 U.S.C. §§ 922(g) and 924, possession with intent
to distribute a quantity of cocaine and aiding and abetting
in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2,
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c), and
maintaining a place for the purpose of manufacturing,
distributing, and using cocaine and marijuana in violation of
21 U.S.C. § 856.
has moved to suppress a confidential informant's
identification of him and any subsequent in-court
identifications, and to exclude all items seized pursuant to
a search warrant issued pursuant to the confidential
informant's identification. Hicks contends that the use
of a single-photo line-up, or showup, to the confidential
informant was unduly suggestive and that, under the
circumstances, Hicks' due process rights were violated.
The government has stated that it will not be calling the
confidential informant at trial, and thus any in-court
identification of Hicks is not at issue. The government
further contends in opposition to the suppression motion that
the search warrant was supported by probable cause and that
Hicks's constitutional or other rights were not violated.
The charges against Hicks arise from the items seized on the
execution of the search warrant, and not from the controlled
purchases conducted by the confidential informant.
Woodlief, a narcotics sergeant with the Henderson, North
Carolina Police Department, testified to the following facts
at the suppression hearing. Acting on a tip from a
confidential informant that Kacey Hicks was selling narcotics
from a residence located at 1031 Maple Street in Henderson,
Detective Woodlief arranged for the confidential informant
(CI) to conduct a controlled purchase of narcotics from the
Maple Street residence. During the week of January 21, 2018,
the CI, Detective Woodlief, another police officer met; the
CI was searched for contraband; and the CI was provided with
money to buy narcotics. Detective Woodlief observed the CI
proceed to the area of 1031 Maple Street and return to a
route to a predetermined meeting location approximately five
minutes after he arrived at 1031 Maple Street. After arriving
at the predetermined location, the CI was searched and crack
cocaine which he had purchased at the Maple Street address
was turned over to law enforcement. The CI further stated
that he had purchased the crack cocaine from Kasey Hicks. A
second controlled buy following the same protocol was
conducted during the week of January 21, 2018, at 1031 Maple
Street, which also resulted in the purchase of crack cocaine
from an individual the CI identified as Kacey Hicks.
the second controlled buy from the Maple Street address,
Detective Woodlief showed the CI a single photograph of Kacey
Hicks, and the CI identified Hicks as the man from whom he
had purchased crack cocaine at 1031 Maple Street. Detective
Woodlief applied for a search warrant to search 1031 Maple
Street as well as a silver Mercedes known to be operated by
Kacey Hicks, and a search warrant was issued by a magistrate
on January 25, 2018. The search warrant was executed the same
day, and officers recovered firearms, narcotics, and drug
Fourth Amendment generally requires the police to obtain a
warrant before conducting a search." United States
v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010). In order to
satisfy the Fourth Amendment, a search warrant must be
supported by probable cause. United States v.
Harris, 403 U.S. 573, 577 (1971). Probable case exists
when "there are reasonably trustworthy facts which,
given the totality of the circumstances, are sufficient to
lead a prudent person to believe that the items sought
constitute fruits, instrumentalities, or evidence of crime
and will be present at the time and place of the
search." United States v. Suarez, 906 F.2d 977,
984 (4th Cir. 1990).
deciding whether there is probable cause to issue a search
warrant, a magistrate or other officer of a court evaluates
the totality of the circumstances. Illinois v.
Gates, 462 U.S. 213, 238 (1983). A reviewing court may
only consider the information which was presented to the
issuing magistrate when determining whether the warrant was
supported by probable cause, United States v.
Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996) (citation
omitted), and a magistrate's determination that probable
cause exists is entitled to great deference. United
States v. DePew, 932 F.2d 324, 327 (4th Cir. 1991).
or otherwise tainted evidence offered in support of a search
warrant will not invalidate the search warrant so long as
sufficient information remains to support a probable cause
determination. United States v. Allen, 631 F.3d 164,
172 (4th Cir. 2011); United States v. Wright, 991
F.2d 1182, 1186 (4th Cir. 1993). Thus, even if it were to be
determined that the one-photo showup challenged by Hicks was
unduly suggestive, the Court must still determine whether
there was sufficient untainted information presented to the
magistrate to support the probable cause determination.
totality of the circumstances presented to the magistrate
supports that probable cause existed to conduct a search of
1031 Maple Street in Henderson, North Carolina, without the
inclusion of the showup identification of Hicks. The tip
provided to the Henderson Police Department about narcotics
sales from the Maple Street address by Kacey Hicks was
confirmed by the CI's ability to make two controlled
purchases from the residence. See United States v.
Clyburn, 24 F.3d 613, 618 (4th Cir. 1994). The
magistrate was informed that this CI had previously provided
information to law enforcement which had resulted in the
arrest of individuals involved in narcotics sales, and was
determined to be reliable by Detective Woodlief, a trained
narcotics officer with eight years of experience; the
CI's reliability as an informant has not been challenged.
The CI had informed Detective Woodlief after both controlled
buys that he had purchased the drugs from Kacey Hicks. While
controlled buys do not constitute probable cause per se,
United States v. Lull, 824 F.3d 109, 119 (4th Cir.
2016), where a reliable informant tells a law enforcement
officer that he knows certain individuals to be selling drugs
from a certain location, and that informant does in fact make
a controlled purchase from that location and informs officers
that he purchased the narcotics from those certain
individuals, a probable cause finding is supported.
United States v. Khounsavanh, 113 F.3d 279, 286 (1st
identity of the Maple Street residence from which crack
cocaine was purchased was described with sufficient
particularity in the affidavit in support of the search
warrant application, and the tip that drugs were being sold
from that residence was confirmed by the two controlled buys
by a reliable informant. The Court determines that Detective
Woodlief provided the magistrate with ...