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United States v. Schenck

United States District Court, D. Utah, Central Division

July 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN EUGENE SCHENCK, Defendant.

          MEMORANDUM DECISION AND ORDER

          Dee V. Benson, United States District Court Judge

         This matter came before the Court on Defendant's Motion to Suppress. An evidentiary hearing was held April 6-7, 2017 on that motion. Defendant alleged a variety of violations relating to his arrests on June 10, 2015, August 25, 2015, and September 14, 2015. The Court took testimony as it related to the first two arrests. At the hearing Defendant conceded there were no constitutional violations related to the September arrest. Having considered the evidence and the applicable law, the Court enters the following Memorandum Decision and Order denying Defendant's Motion to Suppress.

         FINDINGS OF FACT

         Clearfield Days Inn (June 9-10, 2015)

         1. In the late hours of June 9, 2017, Weber Morgan Narcotics Strike Force Agent Denton Harper received a tip from a confidential informant that Brian Schenck was staying at the Clearfield Days Inn. Defendant was already under investigation for drug distribution based upon a prior narcotics arrest of Chase Swertferger, and his admission that Defendant was his supplier of narcotics.

         2. When Strike Force Agents went to the Clearfield Days Inn they observed Chase Swertferger walking in the parking lot. Agents contacted Swertferger and inquired as to his activity at the hotel. During this conversation Swertferger confirmed a motorcycle observed in the parking lot belonged to Defendant.

         3. While some agents spoke with Swertferger, other agents contacted the Days Inn front desk employee, who confirmed Swertferger had rented rooms #224 and #209.

         4. The agents then simultaneously approached rooms #224 and #209. The occupants of #224 answered the door, explained their travel plans, and permitted agents to search their room. No other individuals or contraband were located inside the room.

         5. When agents knocked on room #209's door, they heard movement inside and the toilet flushing repeatedly. However, despite loudly knocking and identifying themselves, no one would answer the door. Agents then determined to pursue a search warrant.

         6. Agents sought the assistance of a police K-9 in conjunction with obtaining a warrant. Former Davis County Deputy Jeremy Varella responded to the scene.

         7. On that day, Mr. Varella was certified as a K-9 handler, K-9 instructor, and a K-9 judge.

         8. Mr. Varella's K-9, Achilles, was also a properly trained and certified narcotics K-9.

         9. Once Mr. Varella arrived, agents requested he run his dog on the second floor of the Days Inn. At no point prior to deploying his K-9 was Mr. Varella told which room agents were investigating.

         10. Mr. Varella deployed Achilles by releasing him from his leash and giving him the signal to search for narcotics. K-9 Achilles started down the hall and alerted by snapping his head toward room #209 as he walked past the room. Achilles moved towards room #209 and began sniffing the seam where the door meets the floor. After smelling this area K-9 Achilles gave a positive indication for narcotics by staring. Mr. Varella then reported the positive indication to the agents.

         11. While Mr. Varella was assisting the investigation inside the Days Inn, agents went outside to ensure no one escaped from the back of room #209. When agents came to the back of the hotel they observed an open window of what appeared to be room #209, the screen lying on the ground directly below it, and a coat hanging from a nearby tree.

         12. Fearing that someone had jumped from the window, agents began searching the immediate area. While doing so agents found directly behind the open window a black bag containing a large quantity of methamphetamine, heroin, marijuana, and U.S. currency. Agents also found a .40 caliber handgun in close proximity to the black bag.

         13. Agents removed the coat from the tree and located $24, 750 in one pocket and $4, 890 in the other.

         14. In the early morning hours of June 10, 2017, a knock and announce search warrant for room #209 and Defendant was approved by Utah State District Court Judge John R. Morris.

         15. Agents knocked on room #209 and announced the search warrant. After a few moments Defendant answered the door. During the course of the search police found $3, 019 in currency on Defendant's person and another $1, 977 in the hotel room.

         Ogden Days Inn (August 25, 2015)

         16. On August 11, 2015, the Riverdale Police Department received a stolen vehicle complaint. The complainant, Ty Bradley, told a Riverdale Police Officer that Kenneth Peterson sold his truck, a 1998 Chevrolet, without permission approximately two weeks prior.

         17. Riverdale Police Detective Joel Pippin investigated this case. Detective Pippin first contacted Ty Bradley, who reported that he had heard Ken Peterson stole and ...


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