The opinion of the court was delivered by: Wm. R.Wilson,Jr. United States District Judge
Pending is Defendant's Motion to Suppress (Doc. No. 226). The Prosecution has responded (Doc. No. 228) and a hearing was held on May 30, 2006. Post hearing briefs were also filed.*fn1
Defendant argues that: (1) the affidavit lacks probable cause to believe that anything incriminating would be found at the 2008 Moss St. house; and (2) the clothes seized at the house were not named in the affidavit and were the product of a warrantless search.*fn2
After investigating the murder of Darryl Johnson in his Pine Bluff home, DEA agent Vannatta submitted an application for a warrant to search the house at 2008 Moss St., North Little Rock, Arkansas for evidence of drug trafficking and a death caused by a firearm related to drug-trafficking. The affidavit submitted when Agent Vannatta applied for the warrant is paraphrased below:
On July 22, 2003, the body of Darryl Johnson was discovered in his home in Pine Bluff. The physical evidence revealed that there was a forced entry through a bathroom window, and that clothing, a Glock .40 pistol, and frozen meat were missing from the house. The police also discovered a plastic storage tub that "smelled of marijuana," with the name and address of Benny Naito-Gastelum inside. On July 28, 2003, the DEA spoke with a confidential informant ("CI") who said Johnson, Calvin Stovall, and a "Mexican" (who owned two houses in Sherwood and whom Stovall had been incarcerated with) were involved in a drug trafficking conspiracy, including cocaine, MDMA, and marijuana. Stovall is a convicted felon with an arrest for cocaine distribution and no legitimate employment, although he drives fancy cars. The CI gave a cell phone to Stovall and had observed Stovall and Johnson "break down" packages of marijuana and conceal the repackaged marijuana in a hidden compartment in a utility truck. The CI told the agents that Johnson told him that Stovall was going to "rip" the "Mexican" because Stovall felt he was paying too much for the drugs. Stovall asked Johnson to disappear for a few weeks and in return he would pay Johnson $60,000. On June 21, 2003, Johnson told the CI that Stovall "ripped off the Mexicans" and immediately disappeared. Stovall did not reappear until after the discovery of Johnson's body.
In August 2003, DEA agents interviewed another CI who had met Stovall at a halfway house after prison. The CI had introduced Stovall to Naito-Gastelum. According to the CI, Naito-Gastelum supplied Stovall with marijuana, cocaine, and MDMA. Naito-Gastelum asked the CI to check on his residences while he was out of town, and after the CI reported that the houses had been broken into, NaitoGastelum said he thought that Stovall was responsible. In mid-July 2003, the CI received $80,000 in cash and a letter from Stovall, which were to be delivered to Naito-Gastelum in California.
The following was gathered from an April 2004 interview of Darryl Walker: Walker was cell mates with Vertis Clay while incarcerated at the Pulaski County Detention Facility. Clay told Walker that he owned two businesses in Little Rock and that he worked as an enforcer for "Kid" (whom the affiant believes to be Stovall), and that Walker should start working for Clay and "Kid" after his release. Clay told Walker that "Kid" would pick him up when he was released. When Clay was released, Walker observed him getting into a yellow Hummer, which Clay had told him belonged to "Kid."
On July 15, 2003, Walker contacted Clay to try to get some work. On July 18th, 2003, Clay picked up Walker and told Walker that he had a job to do in Pine Bluff which would pay well. Clay told Walker that "Kid's nephew" stole 200 lb. of marijuana and at least 4 kg of cocaine from Kid. Clay told Walker that they would go to Pine Bluff and retrieve the stolen drugs from "Kid's nephew," who was actually Johnson. Walker described specific details of Johnson's torture and murder. He also stated that he and Clay took Johnson's clothes, a Glock .40, bags of frozen meat, and a gallon zip-lock bag containing MDMA from Johnson's house. Agents corroborated Walker's information with forensic evidence.
Walker also informed police that he and Clay returned to the Little Rock area on July 20, 2003. After that, they took the frozen meat to a woman's house in Conway. Once they left Conway, they went to a house at 2008 Moss St., North Little Rock. After Clay turned on the electricity to the house, he and Walker took Johnson's clothes inside the house. Clay also told Walker to remove his own clothes, put them in a trash bag, and take some of Johnson's clothes as replacements. After changing clothes and unloading Clay's vehicle, they left.
Walker stated that the house appeared abandoned from the outside but was nicely furnished. According to a records check, Jessie and Ora Clay, the parents of Vertis Clay, own the house at 2008 Moss St.
Finally, a third CI informed police that the Moss St. house is utilized by David Tidwell, a drug trafficking associate of Stovall, as a stash house.*fn3
Based on the above affidavit, United States Magistrate Judge Forster issued the warrant to search 2008 Moss St., North Little Rock, Arkansas for "contraband and proceeds from the sale of controlled substances, instrumentalities" used in violation of 21 U.S.C. § 846 and 18 U.S.C. 924(j). Specifically, the following items were listed in the warrant as items to be seized: controlled substances or contraband (including firearms); equipment, records and other papers relating to drug-trafficking; address or telephone books; papers evidencing money transactions in violation of 21 U.S.C. § 846; currency, jewelry, and other items of value; photographs or video; and computers or computer records.*fn4 The warrant was executed on April 24, 2004.
During the search, DEA agents seized a handgun, clothing identified as Johnson's, various papers, and other evidence from the house at 2008 Moss St. According to DEA Agent Karen Fehrenbach, who was at the house when the search was executed, any items that were seized that were not ...