Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Nicholson

United States District Court, D. Kansas

December 28, 2017

United States of America, Plaintiff,
Daniel C. Nicholson and Nicole McQuiston, Defendants.



         On June 12, 2015, DEA Special Agent Gregory Anderson applied for a search warrant targeting 11924 East Lewis, Wichita, Kansas, the residence of Daniel Nicholson. In support of the warrant, Anderson submitted a 24-page affidavit reporting the results of a joint investigation by the DEA, the ATF, the Kansas Bureau of Investigation, the Wichita Police Department, the Sedgwick County Sheriff's Office, and the Texas Rangers into alleged drug trafficking and money laundering by Nicholson and his associates, including Nicole McQuiston and Justin Rourke. Nicholson allegedly operated an extensive and sophisticated operation which imported methamphetamine into Kansas from the brothers Ruben and Ismael Enriquez, who operated in Texas and Mexico.

         United States Magistrate Judge Ken Gale approved the warrant on June 12, 2015, and the residence was searched. Agent Anderson then submitted a brief Supplemental Affidavit reporting the results of the search.

         Defendant Nicholson has now moved to suppress the results of the search by means of a 98-page memorandum (Dkt. 266) which argues that Anderson's affidavits deliberately or recklessly misstated the evidence, and seeks a hearing as to the validity of the warrant. Defendant McQuiston subsequently joined this motion (Dkt. 271). Together, defendants attack various portions of the affidavit in detail, suggesting inconsistencies in the record and arguing the investigators should have used other procedures.

         The Fourth Amendment prohibits an affiant in an application for a search warrant from knowingly and intentionally, or with reckless disregard for the truth, making a false statement. United States v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001) (citing Franks v. Delaware, 438 U.S. 154, 171-72 (1978)). Where an affiant makes a false statement, the warrant must be voided if the affidavit's remaining content is insufficient to establish probable cause. See Id. The Tenth Circuit has applied this rule “to intentional or reckless omissions of material facts, which, if included, would vitiate probable cause.” Id. (citing Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990)). Recklessness can be inferred where the omitted facts were “clearly critical” to a finding of probable cause. DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990). In a case where defendant alleges that information was intentionally omitted from an affidavit, the existence of probable cause is determined by examining the affidavit as if the omitted information had been included and determining whether the affidavit would still give rise to probable cause. Basham, 268 F.3d at 1204.

         To warrant a hearing, defendant must make a substantial showing that officers knowingly and intentionally included a material false statement or omission in the warrant affidavit. See Franks, 438 U.S. at 155-56. If a defendant satisfies that requirement, the court conducts an evidentiary hearing where defendant must show “by a preponderance of the evidence that the false statement was included in the affidavit by the affiant 'knowingly and intentionally, or with reckless disregard for the truth, ' and the false statement was 'necessary to the finding of probable cause.'” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (quoting Franks, 438 U.S. at 155B56).

         Because the affidavit in support of the warrant was itself extensive, the court will review what Agent Anderson wrote in the affidavit, and review defendants' objections.


         The affidavit generally stated that during the course of the investigation, through surveillance, court authorized intercepted calls, and cooperating individuals, information had been uncovered revealing Daniel Nicholson was working in concert with Nicole McQuiston, Justin Rourke, and others both known and unknown, in the facilitation of drug trafficking and money laundering crimes. Anderson states in the affidavit that Nicholson's organization was well-organized and compartmentalized, and is responsible for receiving and the distribution of large amounts of methamphetamine in the Wichita, Kansas area and elsewhere. The organization was supplied large amounts of methamphetamine from Ruben Enriquez, who resided in the Lufkin, Texas area, and his brother Ismael Enriquez, who resided in the area of Durango, Mexico.

         Information from Morey

         On September 8, 2014, Task Force Officers Maria Heimerman and Tim Eldredge interviewed a source of information who was knowledgeable of a portion of the interworkings of the Nicholson organization. This source reported that Nicholson's organization was known to have hidden safes built to store drug proceeds and methamphetamine. The source did not specify the location or addresses of these hidden safes.

         This source, who was not named in the affidavit but is Michele Morey, was able to provide the investigators details of the organization by providing the main targets and their role within the organization. The source admitted to having direct involvement as a distributor for the organization and having an outstanding debt. The source asked for protection from the investigators, and Agent Anderson reported he was able to corroborate this source's information through recorded jail calls and other statements. Anderson reported that at the time of the affidavit, the source's location was unknown, and that the investigators had failed to find the source. He also did not know if the source had returned to work for the organization.

         The defendants contend this portion of the affidavit is misleading, citing an interview Special Agent Troy Rhodes had two months earlier with Morey. Morey told Rhodes in a July 3, 2014 statement that she had moved into the residence of Ricky Clark at 2012 S. Wichita in Wichita, and learned Clark was involved in the distribution of methamphetamine, along with Danny Nicholson and Dave Teague. Morey also reported that at one point Nicholson “opened a safe in the residence and began pulling out gallon size bags of methamphetamine.” She also indicated that there were “four of five safes in the residence and she estimated 30 to 40 lbs of methamphetamine and possibly $500, 000 in cash.”

         According to defendants, the statement is misleading because it obscures the fact that Morey only knew about the presence of safes in Clark's residence, and that it misled the magistrate judge into believing the source knew about Nicholson's residence. Additionally, defendants object that the affidavit asserts that additional sources confirmed “all the information” supplied by the source. The defendants claim that the affidavit is false because it asserts Morey was a distributor for the Nicholson organization. According to defendants, Morey only worked for Clark, pointing to statements in the notes such as those indicating that she worked at “taking care of all of [Clark's] customers.”

         But the notes of the July interview cannot fairly be read to indicate that Morey worked only for Clark. She contacted Agent Rhodes because she wanted to speak about the ANICHOLSON drug trafficking organization (DTO).” The notes make it plain both that Clark and Nicholson were in business together, sharing the profits (finding Morey at Clark's residence, Nicholson was “extremely upset” at Clark for leaving Morey “alone with their fortune” (emphasis added)), that the relationship had lasted for some time (ACLARK and NICHOLSON had been in business about three years and had started the business on Lulu Street”), and that, ultimately, Nicholson was the leader of the organization (accused of stealing 'from the DTO” while Nicholson was incarcerated, Clark told Morey he was going to meet with Nicholson when he was released and make an accounting but that “it was a possibility he would not return from this meeting”). And, in her later interview with Heimerman, Morey reported she “believes that CLARK and NICHOLSON are still working together.”

         Nor does the affidavit fairly appear to suggest that “all of the information” ever uttered by Morey was corroborated by the investigators. Rather, the affidavit simply indicates that the substance of the source's information C as previously related in the affidavit C had been found to have support in other information. The materials before the court indicate that the substance of Morey's report C that she was actively involved in the Nicholson organization, that the organization was involved in importing methamphetamine to Kansas on a large scale, and that the organization protected its drugs and money by using safes located in the residences of its members C was indeed corroborated by the investigation.

         Defendants complain that some of the information cited in the affidavit was obtained by monitoring calls while Nicholson was held in the Butler County jail, and argues that such monitoring violated guidelines established by the Department of Justice for electronic monitoring of prisoners held by the Bureau of Prisons. The guidelines cited by defendants indicate that it is Bureau of Prisons policy to require a court order if information is sought as part of a criminal investigation. Accordingly, defendants argue, Anderson's affidavit was misleading because it did not disclose what they claim was a violation of those guidelines.

         The court finds the affidavit was not misleading. Anderson does relate that he was able to corroborate Morey's information from “through recorded jail calls or other SOI [source of information] statements, ” but does not discuss the exact content of those calls, other than indicating that they corroborated Morey's statements to investigators. The calls were apparently made while Nicholson was in state custody rather than in a Bureau of Prisons facility. But even if Nicholson had been in federal custody, the court finds that the affidavit did not violate defendants' rights by reporting the corroborating surveillance.

         The Department of Justice Electronic Surveillance policy cited by the defendants explicitly observes that the Bureau of Prisons policy “exceeds the legal requirements regarding law enforcement access to monitored prison calls.”[1] That is, the guidelines are a policy preference, and defendants do not cite any authority indicating that a violation of the policy would require suppression by a court. The Manual itself expressly provides that it “is not intended to confer any rights, privileges, or benefits upon defendants.”[2] And the Manual expressly cites authority holding that, while investigative monitoring “focused on a particular inmate” falls outside the policy, a court may still admit such evidence under an implied consent theory, given the prisoner's knowledge that such communications are routinely monitored. See United States v. Green, 842 F.Supp. 68 (W.D.N.Y. 1994).

         There is nothing before the court to indicate that any monitoring of Nicholson while he was in county jail violated his constitutional rights. See United States v. Gangi, 57 Fed.Appx. 809, 815 (10th Cir. 2003) (recognizing the diminished expectation of privacy in prison phone calls).

         The affidavit does not suggest or imply that an order authorizing interception existed, and defendants have not shown that under the circumstances such an order was necessary. Indeed, the affidavit actually implies that any Butler County jail intercept occurred independent of any warrant. Elsewhere in the affidavit, when discussing other electronic communications in which the content is revealed (first between Nicholson and McQuiston, and second between Nicholson and Enriquez), the affidavit explicitly identifies the relevant court warrant authorizing the interception.

         The issue before the court is whether the affiant improperly excluded information which would detract from the issue of probable cause. The magistrate judge reviewing the application was free to inquire as to the details of the corroboration cited by Anderson, but, quite reasonably, did not do so in light of the affidavit as a whole. Similarly, Agent Anderson's general indication that he had corroborated “all” the information given by Morey is not reasonably interpreted to mean every single utterance by her, but simply the important elements of her story-that she was heavily involved in the Nicholson organization, that the organization was extensive and active, and that the organization used safes or hiding places in the participants' residences-which had been related in the affidavit. From the court's review of the materials submitted, the court finds that these elements were corroborated, and finds the affiant did not unfairly relate the state of knowledge of the investigators.

         The defendants' claim that the affidavit was false in asserting that Morey felt afraid and needed protection from the Nicholson organization is weakest of all. The defendants point to a transcript of a call between Morey and defendant McQuiston, in which McQuiston tells Morey “she has nothing to fear." (Motion, at 19). It is hard to see how such an assurance from such a source would place Morey's mind at ease in any way. Indeed, at another point in the conversation, McQuiston herself admitted, "I'm scared of everybody right now." The affidavit documents a very large and sophisticated methamphetamine operation. And Morey had heard from another member of the Nicholson organization (Tom Pool) that "he was scared for her, and believed NICHOLSON and CLARK may do harm to her.”

         The court finds no grounds for believing that the affiant substantially erred in relating what investigators had learned.


         Anderson next reported that Task Force Officer Thomas Krausch interviewed LaShawnda Lindeman in October, 2014. He reported that Lindeman was known to be a criminal associate of Nicholson. Lindeman stated that Nicholson's residence on Lewis Street (11924 E. Lewis, Wichita, Kansas) contained secret compartments built into the walls that he used to store drug proceeds. Anderson reported that information received from LaShawnda Lindeman was believed to be credible. According to the affidavit, Lindeman had extensive knowledge of the Nicholson organization and admitted to being a distributor. At the time of the affidavit, Lindeman had limited contact and was no longer associated with the organization. Anderson briefly reported that he had been able to corroborate most of the information through other investigative means. He believed Lindeman was back to selling narcotics but was unclear if her source of supply was the Nicholson organization. She had not been re-interviewed to avoid alarming the organization if she had rejoined it.

         In their motion to suppress, the defendants point to nothing which would directly contradict this report, observing only that they haven't found notes of the October, 2014 interview in the extensive discovery provided by the government. They stress that the affidavit does not expressly state how Lindeman knew of any link to the residence on East Lewis, or explain in detail how Anderson had corroborated her statement. And defendants suggest that in fact Anderson was actively misleading in his description of Lindeman's knowledge.

         In particular, defendants point to a May 2, 2014 report of an interview with a source (SOI No. 6), which describes the source's interaction with Lindeman and his or her knowledge of Lindeman's actions in support of the drug trafficking. Specifically, the source indicates that Lindeman made deliveries to Clark's residence at 2012 S. Wichita (where Clark “had multiple safes"), to a residence of Nicholson at 2536 S. Mosley (where Nicholson “would have as much as 4 body sized duffel bags full of methamphetamine in his bedroom closet"), and Teague's house at 2551 S. Laura (where they would retrieve methamphetamine “from a safe in a bedroom"). In addition, Lindeman also apparently kept a safe under her house at 1747 S. Roanoke. The defendants stress that the report fails to mention the address which was the target of the 2015 search C the house on East Lewis.

         But the focus of the statement is Source No. 6's knowledge of Lindeman's drug operations in 2014. It does nothing to indicate the extent of Lindeman's knowledge. with Nicholson's operations. Moreover, as indicated in the parentheticals in the preceding paragraph, the report actually shows that the use of safes was a common practice of the Nicholson organization. As shown below, the affidavit presented strong evidence that Nicholson was actively involved in drug trafficking in June of 2015. Accordingly, there was strong reason to believe that, keeping to prior practice by the organization, safes containing evidence of that trafficking would be located at Nicholson's 2015 residence on East Lewis.

         With respect to Lindeman's general credibility, the affidavit does not go into detail, but this fact is manifest. The magistrate judge was free to request additional information as to Lindeman's credibility if he desired. The materials submitted by defendants in conjunction with their motion do not provide any substantial basis for questioning the assessment given by Agent Anderson in the affidavit. Lindeman was extensively involved in the trafficking organization, and had personally observed the practice of retaining drugs and money in secured or hidden locations in the residences of the participants.

         The Kansas Wiretap

         The affidavit next related that Judge Belot had authorized the interception of McQuiston's telephone (316-882-9749) on December 3, 2014, and the telephones of Nicholson (316-284-7970) and Rourke (316-293-7982), as well as an additional target (620-605-1778) on April 8, 2015. Agent Anderson reported that DEA investigators used the intercepted communications, along with physical surveillance, and court-authorized GPS tracking, to establish that McQuiston and Nicholson were close criminal associates involved in narcotics trafficking.

         Specifically, the affidavit notes that on December 10, 2014, at 10:35 a.m., McQuiston told Nicholson, "OK, umm, I need to go umm to your friend's today for a little bit then I should be back in a couple of hours."


         Anderson interpreted this conversation to mean that McQuiston was telling Nicholson that she would make a delivery of methamphetamine to one of Nicholson's customers that day, and it would take her a couple of hours to complete the delivery and return

         Later the same day, at 2:13 p.m., Nicholson asked, “What are you doing, sweetie?" McQuiston replied, “Just watching TV." McQuiston told Nicholson, AI can cancel that for today if you need me to though." Nicholson replied, Ammmm." McQuiston replied, “She is gonna meet me uh, we are going to go shopping together, ummm, halfway." Nicholson stated, “Oh yeah, well shit, don't forget angel tree, OK ummm, if you can get back this way as soon as you can." McQuiston said, “Alright brother ..... It will be about 2 hours." Nicholson replied, “Two hours, OK, alright, please uh call me ..... A McQuiston replied, AI love you, I love you brother." Nicholson replied, AI love you too sweetie."

         According to Anderson, in this call McQuiston informed Nicholson that she was planning to meet Dorsey (a methamphetamine customer) halfway between her house in Park City, and his house in Osborne, County Kansas, a trip of about two hours.

         The defendants assert the affidavit is misleading because it fails to explicitly state that the authorization for interception ended on April 8, 2015, and that Judge Belot had sealed the resulting intercepts.

         The court finds that the cited omission is not material. The purpose of this part of the affidavit is simply to show the continuing nature of the criminal enterprise, and the affidavit makes no representation that the intercept was ongoing. The calls mentioned in the affidavit were recorded during the lawfully authorized interception. They were placed under seal to prevent disclosure in the miscellaneous case, In re Application of the United States for an Order, No. 14-CM-60094-MLB, but the order did not prohibit the United States from using them for investigative purposes.

         Next, defendants claim that the averments made by the United States in obtaining the wire intercepts contradict Anderson's 2015 search warrant affidavit. The court finds no contradiction. In the earlier affidavit, the government acknowledged the existence of some “Sources of Information", but stressed that the government had no confidential source then active in the Nicholson organization, and that any such involvement would be dangerous given the nature of the organization. The affidavit in support of the warrant reported:

Although numerous interviews were conducted with different sources of information that were able to provide significant information on the inner workings of the NICHOLSON DTO, your Affiant believes that interviews of the Targets or their known associates would produce insufficient information concerning the identities of the individuals involved in the conspiracy, the source of the drugs, financing, the location of records, drugs, drug proceeds, or other pertinent information regarding the subject crimes under investigation. Your affiant also believes that any response to interviews would contain a significant number of half-truths and untruths diverting the investigation with false leads ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.