Searching over 5,500,000 cases.


searching
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. Kilgro

United States District Court, N.D. Alabama, Middle Division

February 2, 2017

UNITED STATES OF AMERICA,
v.
JOSHUA MARTIN KILGRO, Defendant.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.

         Defendant Joshua Martin Kilgro is charged in a one count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1). Law enforcement officers seized the guns identified in the indictment during a search of Mr. Kilgro's residence in July of 2013. (Doc. 21-1). Mr. Kilgro has filed a motion to suppress this evidence. (Doc. 16). Mr. Kilgro's motion presents two issues. First, Mr. Kilgro contends that the search warrant in this case is invalid because it does not meet the Fourth Amendment's particularity requirement. (Doc. 16, pp. 4-6). Second, Mr. Kilgro attacks the truthfulness of the affidavit submitted in support of the search warrant. (Doc. 16, pp. 6-9). On this issue, Mr. Kilgro maintains that he has demonstrated that he is entitled to a hearing pursuant to Franks v. Delaware, 348 U.S. 154 (1978).

         The Court held a hearing on Mr. Kilgro's motion on April 20, 2016. Based on the testimony and evidence presented to the Court, and for the reasons stated below, the Court denies Mr. Kilgro's motion to suppress. Under the particular circumstances of this case, the warrant described in sufficient detail the premises subject to the search. In addition, Mr. Kilgro has not made the required preliminary showing of deliberate falsehood or reckless disregard necessary to open the door to a Franks hearing.

         I. BACKGROUND

         On July 27, 2013, Dekalb County Drug Task Force Agent Gary Hill submitted to Dekalb County Circuit Judge Shaunathan Bell an affidavit in support of a search warrant “for the residence of Josh Kilgro, Claire Davidson of 338 County Road 1006, Fort Payne, Dekalb County, Alabama more particularly described as a beige two story house with rock on the front of the house, an attached two car garage and a detached work shop.” (Doc. 16-1, p. 1). The search warrant was initiated following a confidential informant's tip to Dekalb County Detective, Andy Hairston. The informant told Detective Hairston that he had observed Mr. Kilgro cooking methamphetamine at the Kilgro house. (Doc. 16-1, p. 5). According to Agent Hill's affidavit:

On July 27, 2013, DTF [Dekalb County Task Force] agent Andy Hairston met with a confidential informant who in the past had given Hairston information that led to the arrest of several individuals for the sell [sic] and manufacture of methamphetamine. The informant stated to Hairston that with-in the past seventy two hours of today's date (7/27/13) that they had been to the residence of Josh Kilgro and Claire Davidson located at 338 CR 1006, Fort Payne and that while at the residence had witnessed Josh Kilgro cooking methamphetamine at that residence.

(Doc. 16-1, p. 5).

         In response to Agent Hill's affidavit in support of the application for a search warrant, at 6:00 p.m. on July 27, 2013, Judge Bell issued a search warrant permitting law enforcement officers to search Mr. Kilgro's residence. (Doc. 16-2, p. 1). The search warrant contains the following description of the location to be searched:

338 County Road 1006, Fort Payne, DeKalb County, Alabama, more particularly described as a beige two story house with rock on the front of the house, an attached two car garage and a detached work shop, the person Josh Kilgro, Claire Davidson and any person(s), outbuilding(s) and vehicle(s) on the curtilage.

(Doc. 16-2, p. 1; see also Doc. 16-1, pp. 1, 5, 6).

         On July 27, 2013, at 7:00 p.m., Agent Hill, Officer Hairston, and several other officers with the drug task force executed the warrant at 242 County Road 1006, Fort Payne, Alabama, even though the warrant authorized a search of the house located at 338 County Road 1006.[1] (Doc. 21-1, p. 1; Doc. 29, p. 17). The house at 242 County Road 1006 was Mr. Kilgro's residence. During the search, officers seized methamphetamine, digital scales, and the four guns that provide the basis of the federal indictment against Mr. Kilgro. (Doc. 21-1, p. 1).

         It is undisputed that the house located at 338 County Road 1006, Fort Payne, Alabama, is not Mr. Kilgro's house, and it does not match the description of the house provided in the affidavit or warrant. (Doc. 29, p. 19). The house located at 338 County Road 1006 is a red brick house with white trim; it does not have rock facing or a detached workshop. (Doc. 29, pp. 19, 49). The house located at 242 County Road 1006 is a two story house with rock on the front, an attached garage and a detached workshop, as described in the warrant. (Doc. 29, pp. 18-19, 75). According to Mr. Kilgro's wife, Claire Kilgro, [2] the house does have rock on the front and a detached workshop, but she contends that the house is gray instead of beige, and that it is actually a one story with a basement, as opposed to a two story. (Doc. 29, p. 75). Mrs. Kilgro also testified that the garage fits only one car. (Doc. 29, p. 67).

         The record is disputed as to whether the numbers 242 appeared on the mailbox at the Kilgro's house when officers completed the search warrant application. Mrs. Kilgro testified that she purchased and affixed the numbers 242 to the mailbox on May 25, 2013, well before the search in July 2013. (Doc. 29, p. 64). Mrs. Kilgro testified that the numbers were black with a white, reflective background. (Doc. 29, pp. 64, 65). Officer Hairston testified that on the night of the search and prior to the search, the numbers 242 were not visible on the mailbox. (Doc. 29, p. 37).[3]

         Officer Hairston testified that at the time of the search, he did not know the street number for Mr. Kilgro's house, but he was familiar with Mr. Kilgro and knew where Mr. Kilgro lived. (Doc. 29, pp. 12, 15). Officer Hairston testified that he lives about a mile and a half from Mr. Kilgro's house, and he has been to Mr. Kilgro's residence between 40 and 60 times, primarily in connection with a previous owner of the residence, whom Officer Hairston also knew. (Doc. 29, pp. 12-13, 15). Officer Hairston had last been at the residence about a year before officers ...


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.