United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
This case comes before the court on defendant Darrin Walker's motion to suppress. (Doc. 17). The motion has been fully briefed and is ripe for decision. (Docs. 21, 22). The court held an evidentiary hearing on September 10, 2013. Walker's motion is granted for the reasons herein.
Walker and Johnson are charged with possession with the intent to distribute cocaine and possession with the intent to distribute hydrocodone. (Doc. 1). On February 14, 2013, J.M. Henry, an officer with the Wichita Police Department, presented an application for a search warrant to a Sedgwick County District Court judge. Henry sought a warrant for 1510 N. Vassar to search for items indicia of drug trafficking. Henry's affidavit set forth the following:
Your Affiant, Officer J.M. Henry, currently assigned to Patrol North, Special Community Action Team (SCAT), of the Wichita Police Department. In that capacity Your Affiant received information that narcotics were being held at 1510 N. Vassar.
Your affiant researched the city database and learned that Darrin L. Walker, date of birth 10/13/1964 lives at or has used the address of 1510 N. Vassar in the past. Your Affiant researched the Wichita Police Department Records and learned that on 6/14/07 North SCAT executed a narcotics search warrant at the residence of 2001 E. Elm, Wichita, Sedgwick County, Kansas after receiving a tip that narcotics were being sold out of that location by Darrin Walker. During that search warrant officers located approximately 3.5 ounces of crack cocaine, 2 handguns, and approximately one quarter ounce of marijuana and arrested Darrin Walker for possession of cocaine with intent to sell... During this investigation officers began to notice vehicles driven by Darrin Walker were staying at 1510 N. Vassar.
Your affiant conducted more research and found that on 3/21/11 East SCAT executed a narcotics search warrant on the residence of 1016 E. 8th Street after receiving a tip from a Confidential Informant that Darrin Walker and Quincy Galbert were selling narcotics out of that residence. During that search warrant officers located approximately 10 grams of crack cocaine, 15 grams of marijuana, and a Ruger 9mm handgun.
On 6/2/10 Officer Kern received a tip that a subject known as "Dub" and another subject were selling crack cocaine from 1260 N. Matthewson Apartment #A and that they have a police look-out and carry a lot of narcotics inside the residence. In 2010 Officer Russell received Crimestoppers Tip #10-283 stating that crack cocaine was being sold from 1260 N. Mathewson Apartment #A. Officer Russell noticed that rental cars seen at 2160 N. Mathewson were arriving and staying at 1510 N. Vassar. In November of 2011, Your Affiant received a tip that Darrin Walker, also known as "D-Dub" was selling narcotics out of 1260 N. Mathewson Apartment #A. Within three months of learning this information North SCAT conducted three controlled buys from the courtyard of this location resulting in the purchase of crack cocaine. On 11/26/11 Officer Schomaker and Officer Kampling stopped Shawn Steele, date of birth 11/3/59, leaving this location in possession of approximately 2 ounces of crack cocaine. During a post-Miranda interview of Shawn Steele he admitted to purchasing the 2 ounces of crack cocaine from "Pops" or "Papa" for $2400, who he later identified as Darrin L. Walker. On 2/7/12, Your Affiant observed a black Impala registered to Enterprise Rental Cars leave 1260 N. Mathewson. Your Affiant stopped the vehicle and arrested Darrin Walker, for suspicion of driving under the influence of alcohol. After the arrest, Mr. Walker requested that his vehicle be released to Angela Johnson date of birth 4/30/62, who stated she lives at 1510 N. Vassar.
Your Affiant then conducted a check on Darrin L. Walker's Interstate Identification Index (Triple I) and found that on 11/5/84 Mr. Walker was arrested for assault on a law enforcement officer; resist arrest on 2/7/92; possession of cocaine with intent to sell six separate time on 1/5/91, 2/21/91, 8/16/91, 1/23/95, 8/7/01, and 11/09/02; aggravated escape custody on 4/15/92; possession of marijuana on 2/21/93 and 2/7/00; possession of cocaine on 11/1/95 and 6/17/05; and possession of drug paraphernalia on 11/5/06.
Your Affiant continued to monitor this residence for more information. Your Affiant observed one blue trash cart sitting approximately five feet east of the paved street of Volutsia and approximately five feet north of the north edge of the driveway to 1510 N. Vassar. On Tuesday, February 12, 2013 at approximately 04:20 hrs. your Affiant removed (2) black trash bags tied in a knot from inside the trash cart and took these bags to a secure location. Your Affiant also marked the trash cart with a small piece of gray duct tape on the outside black wheels of the trash cart. Your Affiant located inside of the first trash bag: (1) sandwich baggie with the corner missing, (3) comers of sandwich baggie with white residue, (2) pieces of sandwich baggie tied in knots, (1) Gap advertisement with the address portion removed, (1) Dillards advertisement with the address portion removed, (1) Capital Federal advertisement with the address portion removed, and (1) Wells Fargo Visa Platinum Card letter addressed to Primitiva Johnson at P.O. Box 20174, Wichita, KS. Your Affiant located inside of the second trash bag: (3) sandwich baggie comers with white residue, (3) sandwich baggies with the corner missing, (4) pieces of sandwich baggie tied in knots, and (1) empty box of sandwich baggies. On Tuesday, February 12, 2013 at approximately 1222 hrs Your Affiant tested a sample of the white residue taken from the sandwich baggie corners in each bag and each sample tested positive for the presence of cocaine with a Sirchie Test Kit.... Your Affiant also checked the City of Wichita Water records and learned that the water bill at 1510 N. Vassar is in the name of Primitiva M. Johnson.
(Doc. 18, exh. 2) (sic throughout).
After reviewing the affidavit, the district court judge issued a search warrant permitting a search of 1510 N. Vassar, Wichita, Kansas. When officers arrived to execute the warrant, both defendants were present. Officers seized cocaine, hydrocodone and a firearm. Walker moves to suppress the seized items on the basis that the application for the search warrant lacked probable cause.
The court held a hearing on September 10, 2013 and September 29, 2014. The government and defendants declined the ...