United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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).
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.
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).
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
(Doc. 16-2, p. 1; see also Doc. 16-1, pp. 1, 5, 6).
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. (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).
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,  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).
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).
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 ...