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USA v. CORNELL et al, Docket No. 1:11-cr-00402 (M.D.N.C. Nov 29, 2011), Court Docket Eric Fink Monday, July 30, 2012 - 4:41 PM

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA vs. RUSSELL LLOYD KILFOIL, Defendant. ) ) ) ) ) )

1:11CR402-2

Motion to Suppress Evidence Seized From Residence NOW COMES the defendant, Russell Kilfoil, through undersigned counsel, and moves the Court pursuant to 18 U.S.C. App. Fed. R. Crim. P. Rule 12(b)(3)(C) to suppress evidence seized from his residence in violation of the 4th Amendment to the United States Constitution and 18 U.S.C. App. Fed. R. Crim. P. Rule 41(b). In support of this Motion, Mr. Kilfoil shows unto the Court the following. 1. During June 2007, Russell Kilfoil resided at 2809 Keeler Street in Greensboro, North Carolina. This is substantiated by Mr. Kilfoils name appearing on the water bill for the residence as shown by Exhibit A, which is incorporated by reference herein. 2. On or about June 27, 2007, Corporal John M. Lowes of the Guilford County Sheriffs Department prepared and presented an affidavit in support of the issuance of a search warrant in which he stated: During this investigation I have learned that household members have been arrested for drug possession. I have received complaints from a confidential source that they have witnessed persons from 2809 Keeler St partaking in drug activity outside of their business. A trash pull was conducted at 2809 Keeler St and within the contents of the trash was

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found a small amount of marijuana inside a wrapped cigar. Also located was cigar tobacco inside a Ziploc bag and with that tobacco was found marijuana seeds and stem[.] A copy of the affidavit is attached as Exhibit B which is incorporated by reference herein. 3. On June 27, 2007 a search warrant was issued by North Carolina state Magistrate J.A. Williams for the search of 2809 Keeler Street in Greensboro. A copy of the Search Warrant is attached as Exhibit C and incorporated by reference herein. 4. The Search Warrant was executed and returned on June 27, 2007. Evidence seized at the residence included, inter alia, a BB gun, less than one ounce of marijuana and various papers. A copy of the Inventory of Items Seized Pursuant to Search is attached as Exhibit D and incorporated by reference herein. 5. The affidavit in support of the search warrant is deficient to establish probable cause that drug trafficking activity was occurring within 2809 Keeler Street as it: a. Fails to establish the reliability of the confidential informant. See United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991). b. Fails to provide a time frame as when the drug activity was observed occurring. See United States v. Anderson, 851 F.2d 727, 729-30 & n. 1 (4th Cir. 1988). c. Fails to raise a reasonable inference that persons partaking in drug activity outside their [the CIs] business and what appears to be a discarded remains of a marijuana blunt, some seeds and stems recovered from residential trash at 2809 Keeler Street constitutes drug

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trafficking activity at the residence rather than simple misdemeanor possession of marijuana by some unknown person. See Anderson, 851 F.2d at 729. 6. The Search Warrant was issued by a state Magistrate in violation of 18 U.S.C. App. Fed. R. Crim. P. Rule 41(b), which only authorizes a magistrate judge with authority in the districtor if none is reasonably available, a judge of a state court of record in the district to issue same. WHEREFORE, Mr. Russell Kilfoil prays the Court deny the introduction of any evidence seized as a result of the Search Warrant executed at 2809 Keeler Street in Greensboro, North Carolina. Respectfully submitted this 27th day of July, 2012. /s/ Brian M. Aus Brian M. Aus PO Box 1345 Durham, NC 27702 (919)438-3472 Fax (919)666-6849 NCBN 12845 Certificate of Service I hereby certify that on this 27th day of July, 2012, the foregoing document was electronically filed with the Clerk of Court using the CM/ECF system which will send notification to AUSA Robert A.J. Lang and Leshia M. Lee-Dixon who are representing the Government in this matter. /s/ Brian M. Aus

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