govinfo:USCOURTS-kyed-0_20-cr-00013-1

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
NORTHERN DIVISION 
AT ASHLAND 
 
CRIMINAL ACTION NO. 20-13-4-DLB-EBA 
 
UNITED STATES OF AMERICA                             PLAINTIFF 
 
 
v.   ORDER ADOPTING R EPORT AND RECOMMENDATION 
 
 
JOSHUA A. GAMBLE                                    DEFENDANT   
 
* *  * *  * *  * *  * *  * *  * *  * * 
 
 This matter is before the Co urt upon the March 24, 2021 Report and 
Recommendation (R&R) of United States Magistrate Judge Edward B. Atkins (Doc. # 84), 
wherein he recommends that the Court deny  Defendant Joshua Gamble’s Motion to 
Suppress (Doc. # 57).  Defendant Gamble fil ed Objections to the R&R (Doc. # 87) and 
the United States filed a Response to De fendant’s Objections (Doc. # 93), to which 
Defendant filed a Reply (Doc. # 94).  Accordingly, the R&R is ripe for the Court’s review.  
For the reasons that follow, Defendant Gamble’s Objections are overruled, the R&R is 
adopted, and the Motion to Suppress is denied. 
I.  FACTUAL BACKGROUND 
On November 5, 2020 Defendant Gamble, along with several co-defendants, was 
indicted in federal court for (1) conspiracy to distribute methamphetamine, (2) distribution 
of methamphetamine, and (3) possession with in tent to distribute methamphetamine, all 
in violation of 21 U.S.C. § 841(a)(1).  (Doc. # 14).  He was also charged with (4) being a 
convicted felon in possession of firearms and (5) possession of firearms in furtherance of 
drug trafficking in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(1)(A), respectively.  (Id.).  
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A Superseding Indictment adding additional co-defendants was returned on January 8, 
2021.  (Doc. # 41).  On January 26, 2021, Ga mble filed a Motion to Suppress evidence 
seized during the search of a residence lo cated at 49 Chapman Road in Greenup, 
Kentucky.  (Doc. # 57).  In his Motion, Defendant argues that the search warrant, issued 
by a state judge, was not suppor ted by probable cause.  (Docs. # 57 and 57-1).  More 
specifically, Defendant  argues that the affidavit submitted by Sheriff Matt Smith in support 
of the application for the search warrant was insufficiently corroborated.  (Doc. # 57-1 at 
5).  Thus, Defendant seeks the suppression of evidence obtained and statements elicited 
as a result of the allegedly unconstitutional search.  (Id. at 5-6).   
In the affidavit in support of his search warrant application, Sheriff Smith described 
a traffic stop he conducted of an individual (“the Informant”) who reported to the police 
that Joshua Gamble supplied him with the methamphetamine found in his vehicle at the 
residence located on Chapman road.  (Doc. # 57- 2).  The following facts are set forth in 
Smith’s affidavit.  On August 24, 2020, Smith observed a vehicle traveling at a low speed 
and swerving on the road.  The vehicle put on its emergency flashers and pulled off into 
a driveway of an abandoned home.  Sheriff Smith pulled in after the vehicle and flashed 
his emergency lights.  There were three people in the vehicle, and as Smith approached, 
he could smell the odor of burnt  marijuana coming from the ve hicle.  The driver (who 
became the Informant) told Smith that he had smoked marijuana earlier that day, and as 
he got out of the vehicle, he handed marijuana to one of the passengers.  At that point, 
Deputy Shawn Heighton arrived at the scene and both officers asked the front passenger 
where the marijuana was.  The passenger retrieved the marijuana from the center console 
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of the vehicle and told the officers that sh e was having trouble breathing.  The officers 
called an ambulance and asked the passenger to have a seat in the shade.   
The officers proceeded to search the vehicle and found two cylinder-shaped tubes 
that were taped together.  In side the tubes they found me thamphetamine in cellophane 
plastic and two syringes, one of which appeared used and had blood on it.  Another 
syringe was found in the compartment of the rear passenger door.  An ambulance arrived 
and retrieved the passenger who had complained of difficulty breathing.  The Informant 
and other passenger were transported to Greenup County Detention Center.  While 
traveling to the Detention Center, the second passenger complained of difficulty 
breathing, prompting the officers  to arrange for a medical unit to  meet them at the jail.  
Upon arrival, the second passenger was also transported to the hospital.   
At that time, the Informant told Deputy Heighton that he wanted to talk about where 
the drugs came from.  He was given his Miranda warnings and interviewed.  The 
Informant told officers that he had called Joshua Gamble earlier that day and had asked 
to stop by Gamble’s home.  He told Gamble  that he had a YETI cooler that he believed 
Gamble was interested in.  The Informant rode with the two passengers to Gamble’s 
home on Chapman Road, and upon arriving, went inside the home with one of the 
passengers while the other passenger remained in the vehicle.  The Informant traded two 
coolers with Gamble in exchange for approx imately 1.5 grams of  methamphetamine, 
which was packaged in a clear sandwich baggi e.  The Informant stored the baggie 
containing methamphetamine in a black, flip-open container.  The Informant observed at 
least one other vehicle at Gamble’s home—a white pickup truck.  When the Informant 
returned to his vehicle, he observed one of  the passengers whom he had arrived with 
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ingesting methamphetamine, which the pass enger had not had prior to their stop at 
Gamble’s residence.  The Informant further stated that he had had three or four previous 
dealings with Gamble, who would sell him approximately 1.7 grams of methamphetamine 
for $90.  The affidavit noted that the baggi e of methamphetamine obtained from the 
Informant’s vehicle appeared to be the same amount previously purchased from Gamble.   
After obtaining a search warrant based on Sherriff Smith’s affidavit, officers 
searched the residence located at 49 Chapm an Road, where they found additional  
methamphetamine, four firearms, a YETI cool er, and three scales, among other things.  
(Doc. # 57-4).   
II. REPORT AND RECOMMENDATION 
 On March 24, 2021, Magistrate Judge Atkins issued an R&R recommending denial 
of Defendant’s Motion to Suppress.  (Doc. # 84).  In his R&R, the Magistrate Judge found 
that under the totality of t he circumstances, the search warrant for 49 Chapman Road 
was supported by probable cause.  (Id. at 7).  Although Defendant argued the statements 
contained in Sheriff Smith’s affidavit were not independently corroborated, the Magistrate 
Judge reasoned that an issuing judge may find probable cause based on an informant’s 
tip if the judge can independently conclude that the informant is reliable.  (Id. at 7-8) (citing 
United States v. McCraven , 401 F.3d 693, 696 (6th Cir. 2005)).   Such other indicia of 
reliability may consist of “a detailed description of what the informant observed first-hand, 
or the willingness of the informant to  reveal his or her name.”  ( Id.) (quoting McCraven, 
401 F.3d at 697).  The Magistra te Judge also noted that an affidavit may constitute 
probable cause where an informant avers that  he saw a particular crime and particular 
evidence in the recent past, t he identity of the informant is known to the issuing judge, 
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and the informant’s reliability is attested to by an officer.  (Id. at 8) (citing United States v. 
Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc)). 
As the Magistrate Judge pointed out, although Defendant’s Motion seems to imply 
that the Informant was anonymou s—that was not the case.  ( Id. at 7-8).  The affidavit 
submitted in the record redacts the Informa nt’s name, but the Un ited States confirmed 
that the affidavit submitted to the issuing judge identified the Informant by name.  ( Id. at 
8).  The R&R further reasoned as follows: 
[T]he informant identified Gamble by name and provided an exact location 
and description of his residence.  He provided a clear and detailed first-
hand account of the most recent drug transaction he participated in with 
Gamble, including the form of payment  (the coolers) a nd the approximate 
quantity of drugs.  The informant’s story matched evidence that was 
recovered from his car during the tra ffic stop, including the location of the 
drugs bartered for with Gamble.  His story is further corroborated by the fact 
that his passengers required medica l attention for recently using 
methamphetamine.  Finally , and perhaps most significantly, the informant 
made a statement against his own penal interest by describing a pattern of 
prior drug transactions he had entered into with Gamble. 
 
(Id. at 8).  The Magistrate Judge concluded that based on the totality of these 
circumstances, the issuing judge had sufficient  information from which to conclude that 
the affidavit was reliable and that there was probable cause to search the Gamble 
residence.  (Id. at 9). 
 Alternatively, the Magistrate Judge agr eed with the United Stat es’ position that 
even if probable cause were lacking, the good faith exception applies here, because the 
affidavit contained a sufficient nexus betw een the crime and place to be searched and 
was not “so lacking in probable cause that be lief in its existence [was] objectively 
unreasonable.”  (Id. at 9) (citing United States v. Brown, 828 F.3d 373, 384 (6th Cir. 2016); 
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United States v. Rose , 714 F.3d 362, 367 (6th Cir. 2013)).  Thus, the Magistrate Judge 
recommended that the Court deny Defendant Gamble’s Motion to Suppress.  (Id. at 11).  
III. ANALYSIS 
A. Standard of Review 
A district judge may refer a motion to suppress and other related motions to a 
magistrate judge for the preparation of an R&R pursuant to 28 U.S.C. § 636(b)(1)(B) and 
Federal Rule of Criminal Procedure 59(b)(1).  See, e.g., United States v. Jones, No. 6:16-
cr-34, 2018 WL 2329780, at *1 (E.D. Ky. May 23, 2018) (adopting an R&R on a motion 
to suppress and a motion for joinder to the mo tion to suppress).  Pa rties have fourteen 
days to object to a magistrate judge’s R&R.  Fed. R. Crim. P. 59(b)(2).  If objections are 
timely filed, the district court must review de novo the objected-to porti ons of the R&R.  
28 U.S.C. § 636(b)(1)(C).  “A judge of the court may accept, reject, or modify, in whole or 
in part, the findings or recommendations made by the magistrate judge . . . [or] may also 
receive further evidence or recommit the matter to the magistrate judge with instructions.”  
Id.   
The purpose of objections is to allow “the district judge to focus attention on those 
issues—factual and legal—that are at the heart of the parties’ dispute.”  Thomas v. Arn, 
474 U.S. 140, 147 (1985) (footnote omitted).  Therefore, objections to the R&R must be 
specific—they may not be “vague, general, or conc lusory . . . [as such objections are] 
tantamount to a complete failure to object.”  Fields v. Lapeer 71-A District Court Clerk, 2 
F. App’x 481, 482-83 (6th Cir. 2001).  “Moreover , ‘an “objection” that does nothing more 
than state a disagreement with a magistra te’s suggested resolution, or simply 
summarizes what has been presented before, is not an “objection” as that term is used in 
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this context.’”  United States v. Vanover, No. 2:10-cr-14, 2017 WL 1356328, at *1 (E.D. 
Ky. Apr. 11, 2017) (quoting  VanDiver v. Martin , 304 F. Supp. 2d 934, 938 (E.D. Mich. 
2004)).    
B. Objections 
Defendant objects to the Magistrate Jud ge’s finding that the search warrant 
affidavit established probable cause for the sear ch of the residence.  (Doc. # 87).  More 
specifically, Defendant argues that although the identity of the Informant was released to 
the issuing magistrate judge, th is fact, plus the Informant’s  admission to participation in 
criminal conduct did not provide a sufficient i ndicia of reliability as to the Informant’s 
statements.  (Id. at 8-9) (citing United States v. Higgins , 557 F.3d 381, 389-90 (6th Cir. 
2009)).  Defendant also urges the Court not to consider the level of detail of the 
Informant’s information as a testament to the veracity of his statements.  (Id. at 9) (citing 
United States v. Dyer, 580 F.3d 386, 394 (6th Cir. 2009)  (Moore, J., dissenting); United 
States v. Sonagere, 30 F.3d 51, 54-55 (6th Cir. 1994) (Me rritt, J., dissenting)).  Further, 
Defendant argues that there was no corroboration of the In formant’s statement to make 
up for the lack of information regarding the Informant’s reliability.  (Id. at 10-13).  Finally, 
Defendant objects to the Magistrate Judge’ s finding that even if probable cause were 
lacking, the good faith exception would apply given the lack of corroboration of the 
information contained in the affidavit.  (Id. at 14).  
 Under the Fourth Amendment, “no warrants shall issue, but upon probable cause, 
supported by oath or affirmation . . . .”  U.S. Const. amend. IV.  An affidavit demonstrates 
probable cause when the facts contained therein indicate “a ‘fair probability’ that evidence 
of a crime will be locat ed on the premises of t he proposed search.”  United States v. 
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Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (quoting United States v. Bowling , 900 F.2d 
926, 930 (6th Cir. 1990)).  Reviewing courts afford deference to the issuing judge’s 
probable cause determination and must asse ss whether the judge had a “substantial 
basis” to conclude that there was probable cause for the search.  Allen, 211 F.3d at 973 
(quoting Illinois v. Gates , 462 U.S. 213, 236 (1983)).  T he issuing judge’s “discretion 
should only be reversed if it was arbitrarily exercised.”  Id. (citing United States v. Swihart, 
554 F.2d 264, 267-68 (6th Cir. 1977)). 
Whether an affidavit suppor ts a finding of probable c ause is assessed based on 
the totality of the circumstances.  Allen, 211 F.3d at 972.  As the court in McCraven 
explained, an affidavit based on information from an informant “must state facts 
supporting an independent judicial determination that the informant is reliable.”  401 F.3d 
at 697.  For example, 
[t]he affidavit could state that police corroborated significant parts of the 
informant’s story.  Or the affiant coul d attest “with some detail” that the 
informant provided reliable information in the past.  Or there could be other 
indicia of the informant’s reliability, su ch as a detailed description of what 
the informant observed first-hand, or  the willingness of the informant to 
reveal his or her name.  As l ong as the issuing judge can conclude 
independently that the in formant is reliable, an affidavit based on the 
informant’s tip will support a finding of probable cause. 
 
Id. (internal citations omitted).   
As stated in McCraven, the Allen court found that probable cause had been 
established where the affidavit stated “(1) that the affiant had known the informant for five 
years, during which time the informant pr ovided reliable information about criminal 
activity, (2) that the informant’s name had been disclosed to the i ssuing judge, and (3) 
that the informant had personally observed cocaine in the suspect’s apartment within the 
previous 72 hours.”  Id. (citing Allen, 211 F.3d at 971-72).   
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Here, Defendant points out that Sheriff Sm ith’s affidavit does not attest to the 
reliability of the Informant, by for example explaining that the informant had provided 
reliable information on several occasions in t he past, thereby necessitating some other 
indication of reliability.  (Doc. # 87 at 6-9).  Yet, “the facts of Allen do not define the 
minimum requirements for an affidavit based on an informant’s tip.”  McCraven, 401 F.3d 
at 697.  In United States v. Pelham, a case the Sixth Circuit cited in Allen, an affidavit was 
found sufficient where the informant was nam ed to the issuing judge and the informant 
had witnessed the defendant sell marijuana inside his home in the “immediate past.”  Id.; 
United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986).  Based on Allen and Pelham, 
the McCraven court clarified that “independent corroboration of an informant’s story is not 
necessary to a determination of probable cause.”  McCraven, 401 F.3d at 698; see also 
United States v. Peterson , 840 F. App’x 844, 850 (6th Cir . 2001) (noting that “[n]amed 
informants” as compared to anonymous tips or confidential info rmants are “generally 
sufficient to establish probable cause with out further corroboration because the legal 
consequences of lying to law enforcement offi cials tend to ensure reliability”) (quoting 
United States v. Hodge, 714 F.3d 380, 384-85 (6th Cir. 2013)). 
In the instant case, the informant was named to the issuing judge and provided a 
detailed, first-hand account of having just acquired a s pecified amount of 
methamphetamine inside Defen dant’s residence, which was identified by a particular 
address located off of Kentu cky Route 503, where the tra ffic stop of the Informant 
occurred.  In addition, by admitting to hav ing purchased drugs, including on multiple 
occasions in the past, the Informant was ma king a statement against his penal interest 
which “carr[ies] [its] own indicia of credibility.”  United States v. Dickens, 748 F. App’x 31, 
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37-38 (6th Cir. 2018)  (quoting in a parenthetical United States v. Harris , 403 U.S. 573, 
583 (1971)).  The affidavit also included a descrip tion of the residence, although it is not 
apparent from the face of the affidavit that this description matched one provided by the 
Informant.  (Doc. # 57-2 at 1).   
The facts of this case most closely resemble those in Pelham, where the affidavit 
named the informant and provided a detailed description of illegal activity occurring at a 
particular residence in the immediate past.  801 F.2d at 878.  However, the Court 
acknowledges that it is a close case, and the affidavit would have certainly been stronger 
had officers done more to quickly corroborate the information the informant provided, 
such as by confirming that Defendant re sided at the address provided, asking the 
informant for a physical description of the residence, or checking to see whether 
Defendant had any relevant past cr iminal convictions.  Nonetheless, given the indicia of 
reliability contained in the affidavit and the to tality of the circumstances, including the 
timing of the traffic stop, proximity of the stop to the identified address, and nature of what 
officers found in the course of the stop (methamphetamine in packaging and an amount 
matching the Informant’s description of what he acquired at Defendant’s residence, used 
syringes, and two passengers requiring medical attention related to their recent drug use), 
the issuing judge had a “substantial basis” with which to make a “commonsense, 
practical” determination that there was probable cause to support the search.  Gates, 462 
U.S. at 230; Johnson, 351 F.3d at 258; see also United States v. Stokes , 742 F. App’x 
947, 952 (6th Cir. 2018) (noting that specificity of information, such as the amount of drugs 
and currency, did not add a “tremendous amount of  weight” but did render the affidavit 
“marginally more reliab[le]”). 
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Additionally, the cases Defendant relies on are distinguishable.  For example, in 
Higgins, where the court found an affidavit i nadequate to support probable cause, the 
affidavit, in addition to lacking any attestation as to the named informant’s reliability, also 
failed to “assert that the informant had been inside [the defendant’s] apartment, [or] that 
he had ever seen drugs or other evidence in side [the] apartment.”  557 F.3d at 390.  
Similarly, in United States v. Hammond , the informant’s information supporting the 
affidavit was found to be “vague [and] not obv iously reliable” in addition to being 
uncorroborated by independent investigati on.  351 F.3d 765, 772-73 (6th Cir. 2003) 
(noting informant had not provi ded the location of the residenc e, the location of drugs 
within the residence, or any specifics about the alleged illegal conduct).  Further, in United 
States v. Frazier, there was no indication the confidential informants’ identities had been 
disclosed to the issuing judge.  423 F.3d 5 26, 532 (6th Cir. 2005).  Thus, Defendant’s 
objections regarding the existence of probable cause to support the search of Gamble’s 
residence are overruled.  
 Even if probable cause were lacking, th e good-faith exception established in 
United States v. Leon, 468 U.S. 897 (1984), would apply.  Under the good-faith exception, 
the exclusionary rule does not apply when the evidence was “seized in reasonable, good-
faith reliance on a search warrant that is subsequently held to be defective.”  Leon, 468 
U.S. at 905 (internal quotations omitted).  To assess whether an officer relied in good faith 
on a later-invalidated warrant, the court cons iders “whether a reasonably well trained 
officer would have known that the search  was illegal despite the magistrate’s 
authorization.”  Id. at 922 n.23.  Further, in order for this exceptio n to apply, there must 
have been “a minimally sufficient nexus betw een the illegal activity and the place to be 
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searched.”  Brown, 828 F.3d at 385 (quoting United States v. Carpenter, 360 F.3d 591, 
596 (6th Cir. 2004)).  “A police officer does not ‘manifest objective good faith in relying on 
a warrant’ if the affidavit is ‘s o lacking in indicia of probable cause as to render official 
belief in its existence entirely unreasonable.’”  Id. at 385-86 (quoting Carpenter, 360 F.3d 
at 595).   
 For the reasons stated above, namely t he fact that the Informant’s name was 
provided to the issuing judge, the level of detail of the information the Informant provided, 
and the timing/location and nature of the traffic stop of the Informant, the affidavit in 
support of the search of Gamble’s residence was not “so lacking in  indicia of probable 
cause as to render official belief in its existence entirely unreasonable.”  Brown, 828 F.3d 
at 386; see also McCraven, 401 F.3d at 698.  In his Object ions, Defendant asserts that 
Sheriff Smith, who had been in law enforcement for over tw enty years, knew that he 
needed to corroborate the Informant’s information.  (Doc. # 87 at 14).  However, the good-
faith standard is objective—not subjective, Brown, 828 F.3d at 385, and in certain 
instances (for example, where there is suffi cient indicia of reliability), independent 
corroboration is not required, McCraven, 401 F.3d at 698.  Accordingly, Defendant’s 
objection concerning application of the good-faith exception is overruled.   
IV.  CONCLUSION 
(1) The Magistrate Judge’s Report and Recommendation (Doc. # 84) is 
adopted as the Opinion of the Court; 
(2) Defendant Gamble’s Objections to the R&R (Doc. # 87) are overruled; 
(3) Defendant Gamble’s Motion to Suppress (Doc. # 57) is denied; and 
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(4) The time period from the filing of the motion th rough today’s date, totaling 
119 days, is deemed excludable time pursuant to the Speedy Trial Act.  See 18 U.S.C. 
§ 3161(h)(1)(D). 
This 25th day of May, 2021. 
 
 
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