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United States v. Stephens

United States District Court, W.D. Virginia, Big Stone Gap Division

October 1, 2014

UNITED STATES OF AMERICA
v.
DOUGLAS EUGENE STEPHENS, CONSTANCE NICOLE STEPHENS, and CECIL A. McCONNELL, JR., Defendants.

Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, Michael A. Bragg, Bragg Law, Abingdon, Virginia, and A. Benton Chafin, Jr., and Katherine Crabtree, Chafin Law Firm, P.C., Lebanon, Virginia, for Defendants.

OPINION AND ORDER

JAMES P. JONES, District Judge.

The defendants, charged with trafficking in controlled substance analogues, have moved to suppress evidence obtained pursuant to search warrants. The defendants argue that the search warrants were not supported by probable cause. Following a hearing, I will deny the motions for the reasons that follow.

I.

The defendants are charged by indictment with conspiracy to distribute and possess with intent to distribute UR-144, XLR-11, 5F-PB-22, and PB-22 - all alleged to be Schedule I controlled substance analogues under 21 U.S.C. ยง 802(32) in addition to other related offenses. Prior to these charges, search warrants were executed at Cecil's Variety Store (owned by defendant McConnell), at the store Get it Here (owned by defendant Douglas Stephens), and at the Stephens' residence, all of which are located in Pound, Virginia. The search warrants were issued separately by state and federal judicial officers, based upon sworn law enforcement affidavits. As a result of the searches, law enforcement officers seized merchandise, cash and other property.

The defendants have moved to suppress the evidence yielded by the searches on the ground that there was not probable cause to support the search warrants. They contend that the affidavits inadequately alleged that the substances sold by the defendants, particularly XLR-11, are controlled substance analogues, and that the controlled buys discussed in the affidavits were too remote in time to support probable cause. A joint hearing was conducted on the motions, at which the court heard testimony from the officers who authored the affidavits supporting the search warrants and received copies of the relevant affidavits and documents.[1] From the evidence presented at the hearing, I find the following facts:

1. On September 23, 2013, a search warrant was executed by state police officers at Cecil's Variety Store. Numerous items were seized as a result of the search, including merchandise, cash and other property.
2. The warrant was based on the affidavit of Lieutenant Larry Mullins, an investigator with the Wise County, Virginia, Sheriff's Office. Lt. Mullins has been a law enforcement officer for eighteen years, ten years of which he has been assigned to a regional narcotics task force. He has received numerous narcotics investigation training courses, and has participated in a variety of undercover narcotics operations, including ones involving the sale of synthetic cannabinoids by individuals and businesses. He has also researched synthetic cannabinoids, their chemical makeup and physiological effects, and distribution patterns in Wise County. Prior to presenting his affidavit to the state magistrate, Lt. Mullins obtained its approval by an attorney who was the chief prosecutor for the county.
3. The affidavit supporting the warrant stated as follows. In recent years, Lt. Mullins has observed the manufacture and distribution of synthetic cannabinoids with slightly varied compounds that produce the same physiological effects in order to circumvent newly enacted federal and state laws. These substances are considered to be hallucinogens and affect the body in a similar way to THC, the active ingredient in marijuana. Lt. Mullins has observed the distribution of synthetic cannabinoids in Wise County, Virginia, since 2011 by individuals, small businesses and major retailers, and he has also observed related property crimes.
4. According to the affidavit, on December 21, 2012, Lt. Mullins purchased in an undercover capacity three grams of alleged synthetic cannabinoid, labeled "Shpark in the Dark, " at Cecil's Variety Store. A laboratory test later revealed the substance to contain XLR-11. At the time of purchase, Lt. Mullins observed what he believed to be synthetic cannabinoids offered for sale in assorted packages with differing weights and brand names.
5. On September 18, 2013, a confidential informant working undercover conducted a second controlled buy at Cecil's Variety Store of three grams of a substance labeled "Darkness." The affidavit does not allege that this substance was subjected to a laboratory test. According to Lt. Mullins, the informant has given him reliable and credible information and assistance in the past.
6. On September 24, 2013, a second search warrant was executed at the Get it Here store and the Stephens' residence, which is located adjacent to the store across a gravel road. The search resulted in the seizure of merchandise, cash, and other property.
7. The warrant for this second search was based on the affidavit of Special Agent Ryan Temm of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (the "ATF"). Agent Temm has been employed by the ATF for five years. He has received training in investigative techniques, including the preparation of search warrants, and has participated in numerous narcotics trafficking investigations, including ones involving synthetic cannabinoids.
8. The affidavit supporting the second warrant stated as follows. On January 23, 2013, an undercover agent from the Southwest Virginia Drug Task Force (the "DTF") purchased 1.5 grams of suspected synthetic cannabinoid labeled "Kraker" from Get it Here, as well as pipe screens and a smoking pipe. A laboratory test revealed the substance to contain XLR-11 and 5F-AKB48. During the purchase, the undercover agent observed various packages of what appeared to be synthetic cannabinoids with ...

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