ROBERT E. WIER, Magistrate Judge.
Defendant, Nestor Barron, by counsel, moved to suppress the fruits of law enforcement's July 18, 2017, search of 629 Dartmoor Drive in Lexington. DE #31 (Motion to Suppress). The United States responded in opposition. DE #33 (Response). Defendant replied. DE #46 (Reply).
Matt Evans, a Lexington Police Department Detective with approximately 20 years of experience, 13 as a narcotics detective, swore to the affidavit at issue before and obtained a search warrant from Fayette District Judge Megan Thornton on July 17, 2017. See DE #31-1. The affidavit targeted cocaine and heroin trafficking evidence at 629 Dartmoor Drive, Lexington, Kentucky, in two vehicles, and on the person of a named individual. See id. Based on the affidavit, Judge Thornton found probable cause and issued the search warrant on the date of application. Defendant now challenges warrant validity on two bases, seeking suppression.
The affidavit tells a largely cohesive story of Fernando Lara Salas's
Evans began by swearing to Judge Thornton that he received information from "several qualified confidential informants" that Lara Salas "is selling large amounts of cocaine and heroin." DE #31-1, at 4. Evans had "been receiving this information since early 2012." Id. Per Evans, Lara Salas's son ("Fernando Garcia Jr."), wife ("Nancy Garica-Zapata" [sic]), and a person named "Jorge Macias" (now an indicted Co-Defendant) assisted Lara Salas "with his illegal drug trafficking operations." Id. Evans told Judge Thornton that the CIs have worked with him "for several years," providing "valuable information" that had previously "led to numerous arrests and large seizures of drugs and currency." Id. The application reports quantities of cash and drugs interdicted via CI efforts. Evans had previously found the CIs "to be accurate, reliable, and trustworthy." Id. Further, Evans himself had "verified" the provided information "via independent investigations." Id. Simply put, Evans affirmed that the CIs were highly reliable sources of information in a drug investigation, as past work and his own independent actions verified here.
The affidavit thoroughly describes law enforcement's long-term investigation targeting Lara Salas. Post-2012-information-receipt, Evans first describes a February 2013 search of 1051 Duval Street, where police seized 45 kilograms of cocaine (worth $1.5 million), with Lara Salas's fingerprints located on cocaine packaging. Lara Salas "was federally indicted on these cocaine trafficking charges, plead guilty, and was deported." DE #31-1, at 5. Evans also describes his own personal surveillance of Lara Salas, who "had been living on Produce Lane in Lexington until he was arrested in Baltimore[,] Maryland in November 2013." Id. Evans personally met Lara Salas as part of an aborted cooperation ruse post-arrest. Id. The United States deported Lara Salas in October 2014. Then, in "April 2016," Evans swore, the involved CIs notified him that Lara Salas "had returned to Lexington and had continued to sell large amounts of cocaine and heroin." Id. Indeed, the CIs "advised that they had heard that Nancy and [Lara Salas] had recently purchased a house." Id. at 6.
"During the first week of August,"
Based on Evans's surveillance at 629 Dartmoor "on numerous occasions at all hours of the day and night," he swore to the Fayette District Judge that the home "is Nancy and [Lara Salas]'s primary residence." DE #31-1, at 6. Evans "observed both Nancy and [Lara Salas] coming and going from this location on numerous occasions." Id. Evans noted that Lara Salas had been secretive about—"gone to great lengths" to keep secret—the location. Because neither target had told any of the multiple CIs about this residence, Evans felt, given his training and experience, "that this is where they are storing their cocaine, heroin, and large sums of cash." Id.
The investigation continued. "On January 16, 2017," Evans "contacted Cincinnati DEA TFO Chad Whitford and gave him the details of the [Lara Salas] drug trafficking operation and that the CI's [sic] advised that [Lara Salas] had several customers in the Cincinnati[,] Ohio area." DE #31-1, at 7. The same day, Evans observed Lara Salas "as he traveled North of I75 towards Cincinnati, Ohio." Id. (all as in original). "At approximately 2:45 p.m.," Lara Salas, his son, Macias, and another "unknown male Hispanic" arrived at 1429 Ambrose Avenue in Cincinnati. Id. "This is a known area of travel" for Lara Salas; Evans "and assisting investigators" observed him there "on numerous occasions." Id. The group of men, using a key, then entered the house. Around 4:45 p.m., a black Infinity arrived at the home. Id. A black man later identified as Robbie Warren "exited the vehicle carrying an orange Nike duffel bag," which officers noted "appeared weighted and shaped as if bricks of U.S. [c]urrency were inside the bag." Id. Warren entered the home and "a short time later" exited sans duffel bag. Id. After Warren left, the original group exited the home, departed, and "traveled back to Lexington." Id. Evans believed this interaction was a money exchange related to the sale of illegal narcotics. Id. Police continued to observe Warren—who has a felony cocaine trafficking record—treating Ambrose as a likely stash house.
As the investigation was ongoing (though with no precise date provided), a CI contacted Evans and advised that Lara Salas and Macias "had provided him/her with a quantity of heroin," provided "as a representative sample of much larger amounts which [Lara Salas] and Macias [we]re selling." DE #31-1, at 8. "Just prior to this transaction," Evans observed Lara Salas and Macias "leave the residence at 629 Dartmoor Drive." Id. "After this transaction," Evans observed the pair "return to" 629 Dartmoor. Id. Lara Salas and Macias "advised that they had kilogram quantities of heroin for sale." Id.
Based on "months and months of surveillance" and observation of daily travel by Lara Salas and associates to Cincinnati, Evans averred that he had established probable cause to believe that Lara Salas was "running a large scale cocaine and heroin trafficking operation out of his residence at 629 Dartmoor Drive, Lexington Ky., coupled with the stash house at 1429 Ambrose Avenue Cincinnati Ohio." DE #31-1, at 8 (all as in original). "Through years of training and experience," Evans had "learned that on almost every occasion drug traffickers keep evidence of their drug trafficking activities at their primary residence," which is true even when they "utilize a separate stash location." Id. In fact, Evans swore to the issuing judge that this is actually "the preferred method so if the stash house is located and the valuable drugs are lost the currency which is kept at a separate location may not be found." Id. (all as in original). When Evans has encountered use of a stash house "there has always been evidence of drug trafficking located at the suspect's primary residence." Id.
Evans continued to recount particular instances of narcotics connections with Lara Salas. For example, an April 13, 2017, interview with defendants from a separate case revealed that "they had sold [Lara Salas] multiple kilograms of heroin on multiple occasions." DE #31-1, at 8. A June 1, 2017, interview of "a high level cocaine trafficker" (resulting from a May 1, 2017, arrest with 22 kilos) revealed Lara Salas's "desire" to purchase "multiple kilograms of cocaine." Id. at 9. When the trafficker received his shipment, he contacted Lara Salas, who declined an exchange, citing receipt of "his supply from another source." Id.
Finally, "within the past 72 hours" prior to making the affidavit, one of the involved CIs contacted Evans and advised that Lara Salas and Macias "had recently received another drug shipment." Id. The CI arranged for a delivery of a quantity of heroin. Evans observed Macias arrive, operating Lara Salas's Avalanche, and provide the CI "a quantity of suspected heroin and advise[ ] that he and [Lara Salas] had large amounts for sale." Id. Lara Salas and Macias, per Evans, "do everything together." DE #31-1, at 9. "Every morning Jorge Macias will travel to [Lara Salas]'s residence at 629 Dartmoor Drive and pick him up. They are using their above described vehicles to facilitate their drug trafficking activities as well as to transport drugs and currency during these illegal activities." Id. They also, per Evans, used "their residences to store their illegal narcotics, drug trafficking paraphernalia, and drug trafficking proceeds." Id.
Based on this affidavit, Judge Thornton found probable cause and issued a warrant authorizing a search of 629 Dartmoor Drive (among other things) on July 17, 2017. See DE #31-1, at 1 (Warrant). Law enforcement executed the warrant on July 18, 2017, and "discovered the defendant, Nestor Barron, in a bed in the residence along with incriminating evidence." DE #31 (Motion), at 1. Barron now challenges warrant validity on two grounds. He contests the nexus between trafficking information and the Dartmoor Drive location. He also claims the underlying information, at least as to that location, was stale. In essence, capturing both theories, he claims there was not probable cause indicating evidence at Dartmoor Drive when Judge Thornton issued the warrant. The Court disagrees, finds the warrant valid, and recommends
First, Defendant argues that the affidavit failed to establish an adequate nexus between the illegal activity and 629 Dartmoor Drive. DE #31, at 3-8. The United States responded. DE #33, at 8-12. Defendant replied. DE #46, at 4-5.
"[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend. IV. Probable cause consists of "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). To determine probable cause, an issuing judge must examine the totality of the circumstances and find "a fair probability that contraband or evidence of a crime will be found
When evaluating whether a warrant application presented probable cause, a reviewing court must accord "great deference" to the issuing judge's determination. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006). Such deference ensures than "an issuing [judge's] discretion [will] only be reversed if it was arbitrarily exercised." See United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc). The reviewing court must uphold the issuing judge's probable cause determination if a "substantial basis" existed for the judge to conclude "that a search would uncover evidence of wrongdoing." Illinois v. Gates, 103 S.Ct. 2317, 2331 (1983); Allen, 211 F.3d at 973. Additionally, line-by-line scrutiny of a supporting affidavit is inappropriate, Jackson, 470 F.3d at 306 (citing United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004)), and a reviewing court must limit its analysis to the "information presented in the four corners of the affidavit." Id.; United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). When the search at issue occurred pursuant to a warrant, the defendant has the burden of establishing a prima facie case that the search was illegal. United States v. Murrie, 534 F.2d 695, 697-98 (6th Cir. 1976); see also United States v. Franklin, 284 F. App'x 266, 275 (6th Cir. 2008) (Clay, J., dissenting). The Court examines the affidavit at issue through a prism of common sense. Gates, 103 S. Ct. at 2331, 2333.
At bottom, as to this argument, to "establish probable cause necessary for [a] search warrant, the supporting affidavit must set forth a nexus between the place to be searched and the evidence sought. . . . The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before h[er], there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Penney, 576 F.3d 297, 311 (6th Cir. 2009) (internal quotation marks, alteration, and citations removed).
Barron's argument, on this record, fails. The particulars of Evans's affidavit plainly established a sufficient nexus between the targeted heroin and cocaine trafficking, the fair expectation of evidence, and 629 Dartmoor Drive. Evans's independent investigation, that of other law enforcement officers, information received from qualified CIs, and Evans's experience-based opinions created a reasonable basis to believe that Lara Salas was a current large-scale heroin and cocaine trafficker, that Lara Salas lived at 629 Dartmoor Drive, and that a connection existed between Lara Salas and 629 Dartmoor regarding his ongoing drug trafficking activities.
The affidavit easily presented probable cause that Lara Salas trafficked cocaine and heroin. See DE ##31 (Motion), at 3 (conceding such); 46 (Reply), at 4 (conceding that the affidavit "in the present case . . . is replete with information that [Lara Salas] is a drug dealer"). Indeed, Lara Salas clearly was a long-term, high quantity trafficker. The evidence included: the 2013 felony conduct and later deportation; the Baltimore arrest relative to a 2 kilo alleged deal; indication that Arizona charges also existed at the time of the 2013 arrest; the 2017 de-briefs, indicating high volume exchanges with known, current traffickers; the CI information; the multiple aliases; the evident house purchase, acquisition information, and absence of gainful employment; and, the observed, repetitive conduct involving Cincinnati, including Lara Salas's control over a suspected stash house.
The specific connection with 629 Dartmoor chiefly begins in April 2016, when CIs notified Evans that Lara Salas had returned to Lexington and to large-quantity heroin and cocaine trafficking (indeed, as a family affair, involving his wife, son, and other associates). Those very CIs advised Evans that Lara Salas and his wife, Nancy, had recently purchased a home. They reported ostentatious spending by the couple, per social media. Then, in August, Evans had returned to Dartmoor Drive to follow up on a separate investigation. While around 629 Dartmoor, though, Evans observed three cars in the driveway, two of which a registration plate search returned as linked to Lara Salas or Nancy. Further, the Camry matched the CIs' description of Nancy's car and an Avalanche matched the model of Lara Salas's alleged vehicle. Evans, interest piqued, surveilled 629 Dartmoor "on numerous occasions at all hours of the day and night" and observed Lara Salas and Nancy "coming and going from this location on numerous occasions."
Then, critically, during the investigation, a CI contacted Evans and advised that Lara Salas and Macias "had provided him/her with a quantity of heroin," provided "as a representative sample of much larger amounts which [Lara Salas] and Macias [we]re selling." "Just prior to this transaction," Evans himself observed Lara Salas and Macias "leave the residence at 629 Dartmoor Drive." "After this transaction," Evans observed the pair "return to" 629 Dartmoor Drive. Lara Salas and Macias "advised that they had kilogram quantities of heroin for sale." Further, Evans told Judge Thornton that Lara Salas and Macias "do everything together," including Macias (who utilized Lara Salas's vehicle when conducting a July 2017 drug transaction) picking Lara Salas up "every morning" at 629 Dartmoor Drive and normally traveling to Cincinnati.
The affidavit did not specify the date of the CI heroin-sample delivery. This unfortunate omission provides fodder for Barron, but the Court views the event as likely occurring between January 2017 and the application (and certainly between August 2016 and the application). First, its placement in the affidavit comes after discussion of the January Cincinnati conduct. This, logically, implies a later event in the context of the affidavit's structure. Second, the sample instance involved both Lara Salas and Macias. The affidavit first references Macias relative to the January 2017 conduct, so it makes sense that the next transaction involving Macias occurred after his first appearance on the scene. Finally, Evans did not even associate Lara Salas with Dartmoor until August 2016; the event undoubtedly occurred after that date.
Judge Thornton had a substantial basis to believe that 629 Dartmoor Drive was Lara Salas's present residence and that evidence of heroin and cocaine trafficking would be found there. To recount and summarize, Evans informed Judge Thornton of the following: (1) CIs' knowledge, in April 2016, that Lara Salas and his wife recently returned to Lexington and purchased a home;
Further, "an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking." Penney, 576 F.3d at 311; United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008) (citing cases). Here, the affidavit relates continuing heroin and cocaine trafficking activity by Lara Salas, from which Judge Thornton could, in this context, infer that evidence of such trafficking would be found at Lara Salas's residence. Williams, 544 F.3d at 687; see also id. at 686-87 (countenancing "the Government's logical, and indeed legally correct, assertion that it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there." (internal quotation marks removed)).
This is consistent with the Sixth Circuit's recent decision in United States v. Brown, 828 F.3d 375 (6th Cir. 2016), which the parties discuss at some length in the briefing. In Brown, the Sixth Circuit recognized that it "ha[s] permitted judges to infer a fair probability of finding evidence in a residence even though the affidavit did not state that such evidence had been observed directly." Id. at 383. The Circuit reiterated, though, that it has never held that "a suspect's status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home." Id. (internal quotation marks removed; emphasis added). "Rather, [the Circuit] ha[s] required some reliable evidence connecting the known drug dealer's ongoing criminal activity to the residence; that is, [the Court of Appeals] ha[s] required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence." Id. Alternatively, the Sixth Circuit has "found the nexus sufficient even though the affidavit did not contain facts showing that the residence had been used in drug trafficking" when "the affidavit[ ] did not just establish that the defendant[ ] w[as a] drug dealer[ ], but contained overwhelming evidence that the defendant[ ] w[as a] major player[ ] in a large, ongoing drug trafficking operation." Id. at 383 n.2. Under either recognized Brown nexus-sufficiency theory, the Court concludes, considering all the factors discussed above, that this affidavit and warrant survive scrutiny.
In circumstances where, as here, police "independently corroborated [the] fact that the defendant[ ] w[as a] known drug dealer[ ] at the time the police sought to search [his] home[,]" a sufficient nexus may validly exist. United States v. McPhearson, 469 F.3d 518, 524, 524 n.3 (6th Cir. 2006) (finding an insufficient nexus where any "allegation of drug dealing was absent from the affidavit supporting the warrant"); see also United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998). Such is the case here—where law enforcement independently corroborated what the CIs told them and tied—via, e.g., the "representative sample" heroin transaction that Lara Salas's trips from and to 629 Dartmoor bookended, Lara Salas's lack of transparency with the CIs concerning his residency, Evans's investigative conclusion that Macias picked Lara Salas up "every morning" at 629 Dartmoor to further the drug enterprise, and Evans's conclusions based on his 20 years of training and experience—the cocaine and heroin trafficking operation to the 629 Dartmoor Drive residence. Evans's particular opinions carry weight and deserve particular mention. See, e.g., United States v. Blair, 214 F.3d 690, 696 (6th Cir. 2000) (crediting an officer's "professional opinion that drug traffickers keep financial records at their homes" as a factor supporting warrant issuance). This affiant did not include mere boilerplate expertise. Rather, based on his decade-plus experience as a narcotics detective, Evans opined that Lara Salas's secrecy about his residence with the CIs indicated that he wanted to protect from contraband discovery. Further, once Evans established that Lara Salas controlled a stash house in Cincinnati, Evans made pointed observations about how traffickers operate under a stash house-primary residence model. He stated that the trafficker normally is thus separating elements of the operation to minimize loss "if the stash house is located." This dovetails with the residential secrecy. Further, Evans stated that in "all of these occasions," i.e., those involving a stash house as distinct from a primary residence, "there has always been evidence of drug trafficking located at the suspect's primary residence." DE #31-1, at 8.
Alternatively, even without these connections, Evans's affidavit contains overwhelming evidence that Lara Salas was a major player in a large, ongoing drug trafficking operation, validating Judge Thornton's nexus finding. This is clearly not a case where Judge Thornton authorized a search of 629 Dartmoor based on nothing more than Lara Salas's status as a simple drug dealer. Consider the logic and the factual record here: The affidavit undoubtedly shows Lara Salas as a long-term, high-volume drug trafficker. That behavior runs from 2013 through 2017. The evidence suggests that Lara Salas controls multiple vehicles involved in the conduct (the Camry taken to Cincinnati, the Avalanche used by Macias). Further, Lara Salas controls (has a key to) the Ambrose house in Cincinnati. The CIs depict Lara Salas and his wife (and only the wife works, as a part-time waitress) as having bought a house and spent lavishly. With all of that in the affidavit, surely there is a "fair probability" that evidence associated with the continuing trafficking operation would be found in the primary residence. That evidence could include drugs, but it also fairly could include proceeds, safes, papers, and other confirmatory evidence of illegality. Rigid and hypertechnical warrant parsing, as a route to escape these observations, is not consistent with Gates.
Thus, in either scenario, because there was a reasonable basis to believe that Lara Salas lived at 629 Dartmoor Drive and that he currently trafficked cocaine and heroin with a connection to the residence, or because the affidavit clearly showed Lara Salas as a major player in a large, ongoing drug trafficking operation, and because a court can reasonably, in such circumstances, infer that a trafficker keeps evidence of the crime in the residence, Brown, 828 F.3d at 382-84; Penney, 576 F.3d at 311, Judge Thornton reasonably authorized a search of 629 Dartmoor consistent with Evans's experience-based opinions.
Law enforcement conducted a thorough, years-long investigation. Officers began probing the actions of an illegal alien returnee to large-scale heroin and coke trafficking, via independent investigation and several well-qualified and reliable CIs, who identified Lara Salas and associates as key trafficking players. Plainly, the totality of the evidence, viewed in a commonsense manner, supports warrant validity. There was a sufficient nexus between drug activity and 629 Dartmoor via Lara Salas's continued trafficking, the evidence of his residence there, the particularized evidence of a deal originating there, and the use by Macias of a vehicle linked to the residence. The facts, viewed as a whole, confirm Judge Thornton's quite reasonable belief— far more than a mere suspicion—that Lara Salas distributed cocaine and heroin and that evidence of such would be found at 629 Dartmoor Drive. Evans presented plenteous facts, gathered over years of independent police investigation and work with CIs, that supported warrant issuance, and he offered specific, bolstering opinions. Judge Thornton had a substantial basis on which to issue the warrant based on the totality of the evidence presented in the affidavit.
Defendant next argues that the affidavit contained stale information. DE #31, at 8-9. The United States responded. DE #33, at 12-13. Defendant replied. DE #46, at 5-7.
Stale information cannot, at least alone, provide the basis for probable cause. United States v. Frechette, 583 F.3d 374, 377-78 (6th Cir. 2009) (citing United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)); see also Marcillis v. Twp. of Redford, 693 F.3d 589, 601 (6th Cir. 2012). This is because the probable cause determination "is concerned with facts relating to a presently existing condition[.]" Spikes, 158 F.3d at 923 (internal quotation marks omitted) (quoting W. LaFave, Search and Seizure § 3.7 at 338 (3d ed. 1996)). "The staleness inquiry depends on the inherent nature of the crime." Frechette, 583 F.3d at 378 (internal quotations marks omitted). "In the context of drug crimes, information goes stale very quickly because drugs are quickly sold and consumed[,]" but "evidence that criminal activity is of an ongoing nature will defeat claims of staleness." Marcillis, 693 F.3d at 601 (internal quotation marks omitted). To evaluate staleness, the Court considers the following: (1) the character of the crime; (2) the criminal; (3) the thing to be seized; and (4) the place to be searched. Frechette, 583 F.3d at 378 (citing United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir. 2006)). The staleness test does not "create an arbitrary time limitation within which discovered facts must be presented[.]" Spikes, 158 F.3d at 923 (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)). The "critical question is whether the information contained in the affidavit, when presented to the . . . judge, established that there was a fair probability that [particular evidence] would still be found at" the residence. Id.
The Court has fully considered the Frechette factors and finds, viewing the situation as a whole, that the evidence here of large-scale and ongoing heroin and cocaine trafficking is not stale—and quite obviously so, on these facts.
Evans's affidavit established ongoing trafficking by Lara Salas via a thorough investigation stretching back to 2012 and ramping up in April 2016, when Lara Salas returned to Lexington post-deportation and re-commenced trafficking. The intense subsequent 15-month investigation Evans described plainly gave Judge Thornton a reasonable basis to believe that Lara Salas was engaged in an ongoing trafficking enterprise, and "where there is evidence that a suspect is engaged in an ongoing drug operation," the presumption of rapid staleness in drug cases does not necessarily apply. See United States v. Duncan, No. 3:11-cr-12-14, 2012 WL 3042945, at *5 (M.D. Tenn. July 25, 2012) (citing Frechette, 583 F.3d at 378 (countenancing quick drug-evidence staleness "in the absence of information indicating an ongoing and continuing narcotics operation")); see also DE #46 (Reply), at 5 (conceding that the "conspiracy set out in the affidavit is alleged to be ongoing"). The Sixth Circuit has directly held: "Evidence of ongoing criminal activity will generally defeat a claim of staleness." United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001). "Moreover, where the criminal activity occurred in a `secure operational base,' the passage of time becomes less significant." Id.; see also United States v. Figueroa, No. 5:12CR456, 2013 WL 66153, at *2-3 (N.D. Ohio Jan. 4, 2013) ("The Sixth Circuit has determined that evidence of ongoing criminal activity defeats staleness; and the age of information is less important when the place to be searched is the suspect's home, suggesting permanence."). Both those elements are fully present on these facts.
Most critically, Evans swore to Judge Thornton that "
The affidavit, thus, established a fair probability that drug trafficking evidence would be found at 629 Dartmoor Drive. Spikes, 158 F.3d at 923. The Court, on this record, easily concludes that evidence of Lara Salas's cocaine and heroin distribution was not stale—indeed, his actions persisted over a lengthy period, documented in the affidavit, until 3-4 days before warrant execution. Lara Salas was engaged in ongoing criminal activity, based at his home, with a confirmed heroin handoff 72 hours prior. Evidence of criminality and probable cause as to the search was sufficiently current.
The affidavit established a sufficient nexus between illegal activity and the residence, and the information was not stale.
The Court issues this recommendation under 28 U.S.C. § 636(b)(1)(B). The parties should consult 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59(b) for specific appeal rights and mechanics. Failure to object in accordance with the Rule waives a party's right to review.
Additionally, as to another Barron argument, see id., the Court obviously does not see the disconnected Alvarez-related search of 629 Dartmoor as relevant to the probable-cause analysis. Probable cause easily exists without consideration of that unrelated event, which Evans seemingly included in the affidavit merely for purposes of background / explanation, i.e., what drew Evans back to Dartmoor.
Finally, to the extent Barron argues that Judge Thornton could not have validly relied on any of the above information due to some of its aged or undated nature, the Court rejects such a theory; the affidavit's concluding 72-hour proof cures any staleness concerns and refreshes the prior investigative information, per the discussion below. See infra Section III. Moreover, the trafficking history is part of the full and fair Lara Salas portrait.
