United States v. Kenneth Eugene Allen

168 F.3d 293, 1999 U.S. App. LEXIS 3177, 1999 WL 101088
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 2, 1999
Docket96-6313
StatusPublished
Cited by15 cases

This text of 168 F.3d 293 (United States v. Kenneth Eugene Allen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kenneth Eugene Allen, 168 F.3d 293, 1999 U.S. App. LEXIS 3177, 1999 WL 101088 (6th Cir. 1999).

Opinions

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN, J. (pp. 304-08), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Defendant, Kenneth Eugene Allen, appeals from the judgment entered by the district court following his conditional guilty plea to drug related crimes, wherein Defendant reserved his right under Fed.R.Crim.P. 11(a)(2) to appeal the district court’s order denying his motion to suppress evidence on the basis that the search warrant was not supported by probable cause. For the reasons set forth below, we REVERSE the district court’s order denying Defendant’s motion to suppress the evidence and REMAND the case to the district court for further proceedings.1

BACKGROUND

Defendant was indicted on March 12,1996, in a three-count indictment charging Defendant with alleged possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 in Count One; using and carrying a firearm during the drag trafficking offense set out in Count One in violation of 18 [296]*296U.S.C. § 924(c) in Count Two; and as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) in Count Three. Defendant filed a motion to suppress the evidence seized from his residence by police detectives. The evidence seized during the search consisted of 9.3 grams of crack cocaine, a set of scales, and a loaded pistol. Defendant maintained that the evidence should have been suppressed as fruits of the poisonous tree inasmuch as the search warrant was issued without probable cause. The suppression motion was referred to a magistrate judge who later issued a report and recommendation denying the motion to suppress. Specifically, the magistrate found that because “the affidavit was based upon statements of an informant whose name was provided to the issuing magistrate, the informant’s reliability was attested to by the officer seeking the warrant’s issuance, and the basis of the informant’s knowledge was also set forth[,]” probable cause was established sufficient to issue the warrant. On May 31, 1996, the district court affirmed the magistrate’s recommendation.

Thereafter, pursuant to a plea agreement in which Defendant reserved his right to appeal the district court’s denial of his motion to suppress, Defendant pleaded guilty to Counts One and Two. Defendant was sentenced on September 13, 1996, to 135 months imprisonment on Count One and to 60 months imprisonment on Count Two, to be served consecutively. Defendant filed this timely notice of appeal challenging the district court’s order denying Defendant’s motion to suppress the evidence seized by detectives during a search of Defendant’s residence on the basis that the search warrant was not based upon probable cause. Defendant’s appeal was submitted to this Court to be decided on the briefs.

Facts

Gary Lomenick, a detective with the Chattanooga Police Department Narcotics Division in Chattanooga, Tennessee, received a tip from a confidential informant — from whom Detective Lomenick had received reliable information in the past- — concerning an individual known only as “Red Dog.” The tip stated that three days earlier, the informant had seen Red Dog in possession of cocaine in an apartment located at 910 North Market Street. From his conversations with other detectives in the narcotics division, Detective Lomenick learned that Red Dog’s identity was that of Defendant.

Acting solely on the basis of the informant’s tip, Detective Lomenick had another detective in his division prepare an affidavit to submit to a magistrate in support of a search warrant for the apartment located at 910 North Market Street. In the affidavit, which was basically a form type affidavit consisting of boilerplate text that was kept on file in the police department’s computer, Detective Lomenick stated as follows:

I,Gary Lomenick, a duly sworn Chattanooga Police Officer, hereby apply for a search warrant and make oath as follows:
1. I am a sworn Chattanooga Police Officer with the Narcotics Division, where I have been assigned for over 15 years, and a commissioned Special Deputy Sheriff for Hamilton County, Tennessee.
2. On the 11th day of October 1995 I Gary Lomenick received information from an informant, a responsible and credible citizen of the county and state, who I know to be a responsible and credible citizen because, I have known said informant for 5 years and said informant has given me information about individuals involved in criminal activity in the past that has proven to be reliable. Said informant’s name whom I have this day disclosed to the Judge to whom this application is made, that John Doe (Alias) Red Dog who resides in or occupies and is in possession of the following described premises 910 North Market Street, apartment directly underneath carport located in Chattanooga, Hamilton County Tennessee, unlawfully has in his possession on said premises legend and/or narcotic drugs including Cocaine in violation of law made and provided in such cases.
3. On the 11th day of October 1995 said informant advised me that said informant was on the premises of the said John Doe (Alias) Red Dog located at 910 North Market Street, apartment directly underneath carport within seventy-two hours prior to [297]*297our conversation on October 11th, 1995 and while there saw Cocaine in possession of the said John Doe (Alias) Red Dog[.]
WHEREFORE, as such officer acting in performance of my duty in the premises I pray that the Court issue a warrant authorizing the search of the said John Doe (Alias) Red Dog and the premises located at 910 North Market Street, apartment directly underneath the carport, for said legend and/or narcotic drugs including Cocaine and that such search be made either by day or by night.

The affidavit provided blank lines for Detective Lomenick to fill-in at the conclusion of the warrant hearing specifying his name, the name of the issuing magistrate, and the date. Detective Lomenick presented his affidavit to Special Judge Glenn MeColpin, a local practicing attorney acting for the magistrate judge that oversaw warrant applications. Detective Lomenick disclosed during the warrant hearing the name of the confidential informant who provided him with the information contained in the affidavit. Based upon this oral representation and the information contained in the affidavit, Special Judge MeColpin issued a search warrant for the apartment located at 910 North Market Street.

Upon receipt of the search warrant, Detective Lomenick led a team of police officers to 910 North Market Street to execute the warrant. The officers traveled to the apartment in a police van, and when they arrived they noticed that the entrance to the apartment was at the back of the building underneath a carport. Detective Lomenick drove the van up the driveway to the carport, and the officers quickly exited the van and approached the front door of the apartment.

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United States v. Kenneth Eugene Allen
168 F.3d 293 (Sixth Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
168 F.3d 293, 1999 U.S. App. LEXIS 3177, 1999 WL 101088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kenneth-eugene-allen-ca6-1999.