United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the motions to suppress filed by the defendant Danny Reed (Reed) (Filing No. 49) and the defendant Tammy Knight (Knight) (Filing No. 44). Reed and Knight are charged in the Indictment with the July 11, 2014, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). See Filing No. 1. Reed and Knight seek to suppress evidence seized as a result of a search warrant for the garage, vehicles, and persons at 207 East 2nd Street, McCook, Nebraska, (the location) issued by the County Court of Red Willow County, Nebraska, on July 11, 2014. The telephonic search warrant was issued upon the sworn testimony of Deputy Joe Koetter (Deputy Koetter) of the Red Willow County Sheriff's Office (RWCSO). The warrant was executed on July 11, 2014.
Previously, the court denied Reed's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), regarding the issuance of the search warrant. See Filing No. 43. No party objected to the filed Order. The parties stipulated (Filing No. 47) both Reed and Knight have standing to assert their motions to suppress the search in issue. The parties agreed to an index of evidence (Filing No. 48) containing the search warrant (Ex. A), a transcript of the application for the search warrant (Ex. B), and the return and inventory on the search warrant (Ex. C). With leave of the court, Reed filed his supplemental motion to suppress (Filing No. 49) and brief (Filing No. 49-1) on December 22, 2014. The government filed a brief (Filing No. 50) in response on January 5, 2015, whereupon, the motions to suppress were deemed submitted.
FINDINGS OF FACT
At 11:27 p.m. on July 10, 2014, Paul Wood, Red Willow County Attorney (Mr. Wood), contacted Red Willow County Judge Anne Paine (Judge Paine) by telephone for the purpose of obtaining a search warrant for the location at 207 East 2nd Street in McCook, Nebraska. Deputy Koetter was placed under oath and informed Judge Paine as follows:
Okay, this is Lieutenant Joe Cutter [Koetter] with the Red Willow County Sheriff's Office, McCook, Nebraska, Red Willow County. Where I started out tonight at 8:58 I observed several vehicles at a garage which would be located behind the residence at 207 East 2nd. This garage I know to be used by Danny Reed. We've been doing surveillance there on traffic going in and out of the bus - out of that garage. We also made a traffic stop on a Colorado car the license plate did not come back at all, not on record. We stopped the car, Candy Brennan (phonetic) was the driver of the car. We deployed the canine unit. R.C. indicated on the car. During the search, methamphetamine was found in the vehicle in her purse. At that point she was placed under arrest. We took her down to the jail. I - I told her I couldn't make her any promises. I asked her if she'd want to talk to us. She said she would. She said - I says is there anything you could do to help yourself. I said I've already talked to the county attorney and he's willing to work with her. And she said I can get you into the garage that's owed by Danny Reed. I said I need specifics. She said he came back - she told me eight ounces but she wrote down here seven ounces of methamphetamine. She said he left Tuesday, July 8th. He returned on July 10th. She saw - she told me she saw the meth. She said he keeps it in - there's two cabinets at the southwest corner of this garage that are about six feet high. She said there's a lock box. She - or safe lock box. She didn't know exactly which one he kept it in. She also observed two methamphetamine bongs on the coffee table. And at the time she was there she knew the gal as Tammy. I know the pickup to belong to Paul Miller. I know the gal to be Tammy Knight (phonetic). There was some guy there on a motorcycle she did not know. She also knew Cinnamon Rogers (phonetic) who was present. Danny Reed was present and Darla was there but she don't know if she's still there now. These people were all there and she does know that there was meth there at the time she left. We arrested her at 9:54 and we've been working now trying to get where we are right now.
MR. WOOD: Your Honor, if I may I have a few questions for the affiant. THE [Red Willow County] COURT: That'd be fine. Go ahead.
Q. (BY MR. WOOD:) Deputy Cutter [Koetter], you said that you've been keeping the garage under surveillance. How long, weeks, days, months?
A. Months. Months.
Q. Approximately how many months?
A. Since about April.
Q. Of this year?
A. Of this year.
Q. All right. what type of activity have you seen since April at this location that based on your training and experience leads you to believe that methamphetamine is being distributed from this location?
A. This is all late night, and I'm saying usually around midnight on, that I will see foot traffic go in. They're not there just a couple minutes then they walk out. I also have vehicles that drive up and down the alley. They will stop. They will get out. They will go in or they will drop somebody off. They will leave for just minutes then come back, pick em up. They will also park down by the bottle shop I believe is the liquor store right down the alley from em. They will walk up from there and then they will do the - do the same thing. It's just stop and go traffic.
Q. This location where the garage is, is it behind a residence?
A. Yes, it is.
Q. Is that half block what you would consider to be a residential neighborhood?
A. Yes, it is.
Q. It's located just north of B Street which is Highway 634 and 83?
A. Yes, it is.
Q. Is the other half block partially commercial? It is a common alley with the liquor store?
A. Yes, it is.
Q. There's a lot of traffic in and out of that liquor store?
A. Yes there is.
Q. Under surveillance was the liquor store closed or did you see people going to the liquor store rather than this garage?
A. I have seen both traffic because sometimes I'm there before midnight. So until they close there is traffic going to the liquor store.
Q. All right. About how much methamphetamine did you take off of Candace Reed [sic] tonight?
A. We did not weigh it at all but it was - it was enough that we should be able to get a weight on. ...