USA v. Kincaid

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISIONAT DAYTON
UNITED STATES OF AMERICA,
Plaintiff
V.
WILLIAM E. KINCAID, II,
Defendant.
CaseNo. 3:25-cr-47(1)
Judge Walter H. Rice
DECISION AND ENTRY OVERRULING MOTION TO SUPPRESS OF DEFENDANT
WILLIAM E. KINCAID, II (DOC. #21) AND MOTION FOR HEARING UNDER FRANKS
V. DELAWARE(DOC. #33), AND OVERRULING AS MOOT MOTION TO STRIKE OF
PLAINTIFF UNITED STATES OF AMERICA (DOC. #37)
This matter is before the Court on the Motion to Suppress of Defendant
William E. Kincaid, II (Doc. #21), Defendant's Motion fora Hearing Pursuant to
Franks v. Delaware, 438 U. S. 154 (1978) ("F/-a/7te Hearing") (Doc. #33), and Plaintiff
United States of America's ("Government") Motion to Strike Defendant's Reply
Memorandum. (Doc. #37). On March 24, 2025, Judge Kimberly Melnick of the
Montgomery County, Ohio, Court of Common Pleas issued a Search Warrant
(Doc. #29-1, PAGEID 85-86) for 4591 Toni Drive in Dayton, Ohio ("Property"). The
issuance of the warrant was based on the information contained in the Search
Warrant Affidavit of Drug Enforcement Administration (DEA) Task Force Officer
(TFO) Gregory Orick. (Affidavit, Doc. #29-1, PAGEID 87-90).
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In the Affidavit, Orick stated that he received information in June 2023 from
a reliable confidential informant ("Cl") that Defendant was supplying his son,
Jared Kincaid, with fentanyl, which Jared was then selling. (Doc. #29-1, PAGEID
88). In October 2023, Orick was contacted by DEA TFO Steve Cieslinski, who
stated that DEA had noticed suspicious shipping of parcels to the Property that
were addressed to Defendant's five-year old son; in Crick's experience, this is a
sign of drug trafficking activity. {Id. ). In February 2024, Orick received word from
a Cl with a history of providing accurate information that the Cl had seen
Defendant at the Property with a brick of fentanyl, and that Defendant then
pressed that fentanyl into over 100, 000 pills. {Id. }. In April 2024, the City of
Dayton, Ohio, Police Department ("DPD") arrested a Jason Davidson for drug
possession, and Davidson told DPD Detective Dustin Phillips that he had bought
fentanyl from Defendant. {Id.). A search of Davidson's phone revealed a photo of
"a marbleized countertop with approximately 1, 000 blue fentanyl pills. A Cl
familiar with this investigation . . . stated [that] the countertop is consistent with
that of William Kincaid's kitchen countertop. " (/d).
On June 26, 2024, after being told by a Cl "familiar with this investigation"
that Defendant was in possession of three bricks offentanyl, which he was making
into pills, Orick and other DEA agents surveilled the Property. (Doc. #29-1,
PAGEID 88-89). Orick noticed a car in front of the Property registered to a
"Matthew Barnettwhom [s/'c] has an extensive drug history[, ]" and a maroon
Chevrolet Silverado pickup believed to be associated with Defendant by virtue of
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it being registered to Defendant's girlfriend. Orick also observed Kincaid and
others in front of the Property; however, law enforcement's observations "were
deemed innocent in nature and the surveillance was concluded. " (Id. at PAGEID
89). On October 24, 2024, a Robert McPherson told DPD Detective Cody Hartings
that he had bought fentanyl from Defendant, who delivered the drugs in a maroon
pickup truck. Hartings relayed this information to Orick; however, Orick was
unable to follow up with McPherson. Finally, in March 2025, a Cl who Orick
claimed had provided reliable information in the past stated that he or she had
observed between 15, 000 and 18, 000 fentanyl pills at the property. (Id. }.
Based on this information in the Affidavit, Judge Melnick issued a search
warrant for the Property on March 24, 2025, and DEA and DPD executed the
warrant the next day. (Compl., Doc. #1, PAGEID4, flK7-8). DPD saw Defends nt at
the Property and detained him while officers searched the Property. [Id. at fl 8).
The officers' search revealed a Glock handgun, ammunition, crack cocaine,
fentanyl, a vacuum sealer, and a hydraulic press, among other items. {Id. at
PAGEID 4-5, 6, 7-8, ITfl 10, 14-16, 18-19). The officers also observed and searched
the maroon Chevrolet Silverado at the Property. (Id. at PAGEID 8, IT 20). The
Government filed a criminal Complaint on March 26, 2025, containing the above
information (Doc. #1); based on that information. Magistrate Judge Caroline H.
Gentry issued an Arrest Warrant for Defendant that day. (Doc. #2). On June 10,
2025, a grand jury returned an Indictment against Defendant for possessing with
intent to distribute fentanyl, possessing a firearm in furtherance of drug
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trafficking, and possessing a firearm as a convicted felon. (Indictment, Doc. #18,
PAGEID 38-40).
Defendant moved to suppress all evidence from the search, arguing that
there was not sufficient evidence in the Affidavit for Judge Melnick to make a
probable cause finding; the information in the affidavit was stale; and the Cis'
information "was not sufficiently corroborated or shown to be reliable. " (Doc.
#21, PAGEID45). Specifically, Defendant asserts that the information regarding
parcels being shipped to Defendants son amounted to impermissible "guilt by
association, " since there was no evidence that the parcel allegedly containing
drugs that was sent to the Property "was retrieved by [Defendant], possessed by
him, or had anything to do with him. " (Id. at PAGEID 46, citing United States v.
Lopez-Medina, 461 F. 3d 724, 741-42 (6th Cir. 2006)). Moreover, Orick conceded in
the Affidavit that the information received from a Cl that he had seen drugs in
Defendant's possession "'was viewed as stale and not actionable. '" (Id., quoting
Doc. #29-1, PAGEID 88; citing Dickey v. Florida, 398 U. S. 30, 37 (1970)).
Defendant claims that Orick failed to corroborate the information given to
him by another Cl that Defendant was processing bricks offentanyl into pills-the
information that served as the basis for the initial surveillance of the Property-
and that Orick failed to disclose that the Cl was receiving favorable treatment from
the Government in exchange for incriminating information regarding Defendant.
(Doc. #21, PAGEID 46-47). Finally, Defendant argues that the Affidavit improperly
relied on stale information regarding Defendant's past criminal history. (Id. at
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PAGEID 47). Taken together. Defendant concludes, there was not probable cause
to support the issuance of the warrant, and he "requests this Court to suppress
from use at his trial all unconstitutionally gained evidence, as well as derivative
evidence obtained as a result of unlawful police activity. " {Id., citing State v.
Belton, 8th Dist. Cuyahoga No. 112813, 2024-0h10-2357 (Jun. 20, 2024); State v.
Brown, 5th Dist. Tuscarawas No. 2009AP050024, 2010-0hio-1110, II 27 (Mar. 18,
2010); see also Wong Sun v. United States, 371 U. S. 471 (1963) (fruit of the
poisonous tree doctrine)).
The Government responds that the Motion is unavailing, because "[t]he
concrete, specific facts articulated in TFO Orick's [A]ffidavit establish precisely the
kind of 'fair probability' the Fourth Amendment requires. " (Memo. In Opp., Doc.
#29, PAGEID 72, citing Illinois v. Gates, 462 U. S. 213, 238-39 (1983); United States
v. Carpenter, 360 F. 3d 591, 594 (6th Cir. 2004) (en bane)}. Specifically, the
Government notes that, just one day before the issuance of the warrant, a reliable
Cl told law enforcement that he or she had personally seen between 15, 000 and
18, 000 fentanyl pills and more than one-half of one pound of fentanyl at the
Property. The Government argues that the Cl's specificity and history of reliability
"strongly support!] probable cause. " [Id. at PAGEID 72-73, citing United States v.
Woos/ey, 361 F. 3d 924, 927 (6th Cir. 2004); United States v. Tilman, 404 F. App'x
949, 952 (6th Cir. 2010)).
Further, the Government emphasizes that the information from the Cl was
not presented in a vacuum, but was part of a yearlong investigation into
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Defendant, wherein law enforcement received information on at least five
occasions that Defendant was processing fentanyl into pills for sale. (Doc. #29,
PAGEID 73). "All these facts allowed Judge Melnick to arrive at the 'practical,
common-sense' conclusion that 'there is a fair probability that contraband or
evidence of a crime will be found at the residence at issue. '" [Id. (brackets
removed), quoting United States v. Washington, 380 F. 3d 236, 240 (6th Cir. 2004)).
Thus, the Government argues, even if the Court were to discount the statements
of the Cl, there was more than enough information in the Affidavit for Judge
Melnick to arrive at a reasonable probable cause determination. (Id. at PAGEID
74, citing United States v. McCoy, 905 F. 3d 409, 416 (6th Cir. 2018)).
The Government then sets out the elements this Court must undertake in a
stateness analysis:
(1) the character of the crime (chance encounter in the night or
regenerating conspiracy?); (2) the criminal (nomadic or entrenched?);
(3) the thing to be seized (perishable and easily transferrable or of
enduring utility to its holder?); and (4) the place to be searched (mere
criminal forum of convenience or secure operational base?).
(Doc. #29, PAGEID 74-75, quoting United States v. Abboud, 438 F. 3d 554, 572-73
(6th Cir. 2006)). The Government argues that the first two factors weigh against
finding the information in the Affidavit stale, as it detailed nearly two years of law
enforcement regularly receiving "information about the defendant trafficking
fentanyl and utilizing [the Property] to do so. Evidence of ongoing criminal
activity generally defeats a claim of staleness and renders older events relevant to
the probable cause calculus. " {Id. at PAGEID 75, citing Abboud, 438 F. 3d at 573;
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United States v. Greene, 250 F. 3d 471, 481 (6th Cir. 2001)). As to the third factor,
the Government argues that the large quantities of fentanyl being processed
would have made transport of the drugs highly problematic, and the fact that
Defendant had the press to make the fentanyl into pills at the Property meant that
it was likely that the drugs would be at the Property at the time of the search. {Id.
at PAGEID 76). Finally, the amount of drugs and paraphernalia, along with the
Clock firearm, discovered at the Property, a site at which Defendant resided or
with which he was closely associated, strongly suggest that the Property was the
"secure operational base[. ]" Thus, the Government argues, "the passage of time
becomes less significant. " (Id. at PAGEID 76-77, quoting Abboud, 438 F. 3d at 573-
74; citing Greene, 250 F. 3d at 481).
Further, while the Government concedes that the Affidavit did not specify
whether there was a single Cl or multiple Cis, it argues that such a distinction is
immaterial, because "the conclusion is the same - there is sufficient information
to support probable cause and the Cl(s). " (Doc. #29, PAGEID 79). Specifically, the
Government asserts that the Cl information regarding seeing fentanyl at the
Property in March 2025 was corroborated by information from Jason Davidson in
April 2024 that he had received purple fentanyl at the Property; Davidson's
statement was, in turn, corroborated by law enforcement finding purple fentanyl
at Davidson's residence and a statement by Robert McPherson that he knew
Defendant to use purple chalk to color the fentanyl he sold. (Id. at PAGEID 79-80).
The Government concludes that the above constituted sufficient indicia of
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reliability of the March 2025 Cl's statement, along with his or her history of
reliability, and thus, it was reasonable for Judge Melnick to rely upon that
information in the Affidavit to issue the warrant. {Id. at PAGEID80). Finally,
although not expressly challenged by Defendant, the Government asserts that the
Affidavit contained ample evidence of nexus between the Property and drug
trafficking activity. {Id. at PAGEID 80-81, citing United States v. Brown, 828 F. 3d
375, 383 (6th Cir. 2016)). Thus, the Government concludes, the Affidavit contained
more than enough reliable information for Judge Melnick to conclude that
probable cause existed to issue the warrant. {Id. at PAGEID 84).
Alternatively, the Government argues that "the warrant contained 'some
modicum of evidence, however slight-between the criminal activity at issue and
the place to be searched' that the affidavit is not bare bones and official reliance
on it is reasonable. " (Doc. #29, PAGEID 83, quoting United States v. White, 874
F. 3d 490, 497 (6th Cir. 2017)). Thus, the Government concludes, even if probable
cause did not exist, the "good-faith exception" established by United States v.
Leon and its progeny applies to save the evidence from suppression. [Id. at
PAGEID 82-83, citing LeonAGQ U. S. 897, 906 (1984); Washington, 380 F. 3d at 241).
In Reply, Defendant argues that the undisputed facts that the Affidavit (1)
did not specify how many Cis provided information, and (2) contained Orick's
concession that at least one crucial piece of information was stale mean that the
Cl information was objectively unreliable and lacked sufficient corroboration.
(Doc. #32, PAGEID 96). Defendant claims that the person he believes to be the Cl
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brought fentanyl pills to the Property, without Defendant's consent, in the hopes
of selling them to Defendant, but that Defendant never bought the drugs, and that
the interaction took place not in the kitchen, as Orick averred, but in a shed that
was under construction in the backyard of the Property. (Id. at PAGEID 96-97).
Defendant contends that the other statements in the Affidavit amount to guilt by
association (a pickup truck that is registered to Defendant's girlfriend and a
package addressed to his son) and baseless speculation that he had knowledge of
and participation in receipt or sale of fentanyl. (Id. at PAGEID 97-98, quoting
Lopez-Medina, 461 F. 3d at 741-42).
On January 5, 2026, the Government filed a Motion to Strike, arguing that
Defendant's Reply "contains additional information that was not contained in the
affidavit in support for the search warrant at issue. Therefore, that additional
information is outside this Court's probable cause review. " (Doc. #37, PAGEID
116).
On December 8, 2025, Defendant filed the Motion for FranksHeanng,
arguing that there was no reason to believe that the Cl or Cis relied upon in the
Affidavit was or were reliable. (Doc. #33, PAGEID 101-02, citing Alabama v. White.
496 U. S. 325 (1990)).
In Mr. Kincaid's case, he is asserting that the Cl/s [sfc] who claimed
Kincaid had possession of a large number of pills for sale was on
Kincaid's premises for the purpose of constructing a roof on a shed
on the property. Kincaid further submits that it was the Cl who
actually brought the pills into his shed, not the kitchen area, placed
them on a counter, and photographed them. Kincaid additionally
maintains that an adequate police investigation should have
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disclosed that the location of the drugs was wrong and further that
the police were reckless in stating that these pills, which were
photographed on an unreliable Cl's phone, belonged to Kincaid.
(/£/. atPAGEID102).
The matter is now ripe for decision.1
I. Legal Standards
The Fourth Amendment to the United States Constitution provides that:
"The right of the people . . . against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized. " U. S. CONST. AM. IV. "When evidence is obtained
in violation of the Fourth Amendment, the judicially developed exclusionary rule
usually precludes its use in a criminal proceeding against the victim of the illegal
search and seizure. " Illinois v. Krull. 480 U. S. 340, 347 (1987).
In determining whether probable cause existed, "[t]he standard of review
for the sufficiency of an affidavit 'is whether'" under the totality of the
circumstances, "'the [judge] had a substantial basis for finding that the affidavit
established probable cause to believe that the evidence would be found at the
place cited. '" Greene, 250 F. 3d at 479, quoting United States v. Davidson, 936
F. 2d 856, 859 (6th Cir. 1991)). Moreover, to avoid application of the good-faith
1 While the Government did file a memorandum contra on January 5, 2026 (Doc. #36), that
memorandum was filed more than twenty-days after the filing of the Motion for FranksHearing
and without leave of court, making it untimely. S. D. OHIO CRIM. R. 1. 2, 1. 3; S. D. OHIO Qv. R. 7. 2(a)(2).
Thus, the Court did not consider the Government's response in reaching its decision.
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exception, the defendant must show that the officer had "no reasonable grounds
for believing that the warrant was properly issued. " Leon, 468 U. S. at 923. "Thus,
an officer would not 'manifest objective good faith in relying on a warrant based
on an affidavit so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable. '" Carpenter, 360 F. 3d at 596, quoting Leon,
468 U. S. at 923.
To obtain a Franks hearing and obtain suppression of evidence that was
discovered pursuant to a facially valid warrant, a defendant must show: (1) "that
the affiant knowingly and intentionally, or with reckless disregard for the truth,
included a false statement or material omission in the affidavit[, ]" and (2) "that
the false statement or material omission is necessary to the probable cause
finding in the affidavit. " United States v. Pirosko. 787 F. 3d 358, 369 (6th Cir. 2015),
quoting United States v. Rose, 714 F. 3d 362, 370 (6th Cir. 2013).
II. Analysis
A. Probable Cause
Defendant raises several arguments as to why Orick's Affidavit was an
insufficient basis upon which Judge Melnick could reasonably rely to determine
that probable cause existed to search the residence. The Court considers them in
turn.
1. Insufficient evidence within the four corners: Defendant argues that
the Affidavit contained no evidence connecting Defendant to his older son
conducting drug sales or parcels containing purported drug paraphernalia
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addressed to his young son. (Doc. #21, PAGEID 46). As this "guilt by association"
has no relevance to actual culpability by Defendant, such evidence could not have
been the basis of a probable cause finding. (Id., quoting Lopez-Medina, 461 F. 3d
at 741-42).
In deciding a motion to suppress, the Court does not evaluate whether each
piece of evidence cited in the affidavit is valid. Rather, the Court looks at all
evidence in the affidavit under a totality of the circumstances analysis. Greene,
250 F. 3d at 479. There was ample evidence in the Affidavit unconnected to
Defendant's offspring supporting Judge Melnick's probable cause finding.
Specifically, Orick detailed statements from one or more Cis and from multiple
arrestees that they had either bought fentanyl from Defendant at the Property or
saw evidence of processing fentanyl into pills at the Property. (Doc. #29-1,
PAGEID88-89). Orick also stated that law enforcement observed a car associated
with drug trafficking while surveilling the Property, while the pickup truck
associated with Defendant and registered to Defendant's girlfriend was also at the
Property at that time. [Id. ). Even assuming that Defendant had no connection to
his older son's drug dealing and to his younger son receiving parcels at the
Property, there was still more than enough evidence for Judge Melnick to
conclude that "there [was] a 'fair probability, ' given the totality of the
circumstances, that contraband or evidence of a crime will be found in a particular
placet, ]" Davidson, 936 F. 2d at 859 (internal quotation marks and citation omitted),
and, thus, that probable cause existed.
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2. Stale information in the Affidavit: Defendant argues that the February
2024 statement from a Cl that he had seen Defendant possess fentanyl and pills
should not have been considered, since Orick stated that "[t]his information at the
time ofd/sc/osurewas considered stale and not actionable. " (Doc. #21, PAGEID
46 (emphasis added), quoting Doc #29-1, PAGEID 88). However, Orick's
prepositional phrase "at the time of disclosure" is dispositive. The Government is
not arguing that Orick could have obtained a search warrant in February 2024
based solely on the Cl's statement. Rather, it was one data point among many
over the course of more than a year suggesting that Defendant was trafficking
fentanyl at the Property. The United States Court of Appeals for the Sixth Circuit
has consistently held that "evidence of ongoing criminal activity will generally
defeat a claim of stateness. " Abboud, 438 F. 3d at 573 (internal quotation marks
omitted), quoting Greene, 250 F. 3d at 481. The Affidavit being replete with
evidence of Defendant engaging in ongoing drug trafficking means that the
information was not stale.
3. Corroboration of Cl: Defendant argues that the Cl's information that
prompted law enforcement surveillance of the Property-that Defendant had
received several "bricks offentanyl and was processing them into pills"-lacked
corroboration, and thus could not have been relied upon in making a probable
cause determination. (Doc. #21, PAGEID 46 (internal quotation marks omitted),
quoting Doc. #29-1, PAGEID 88). However, that April 2024 statement from the Cl
was not the catalyst for the search warrant application; rather, it was a statement
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by a Cl on March 23, 2025, that Defendant had significant quantities offentanyl in
both pill and brick form at the Property. (Doc. #29-1, PAGEID 89). This Cl had a
history of providing reliable information that led to the discovery of illegal drugs,
and there were numerous statements from other sources during the course of the
investigation suggesting that Defendant was trafficking fentanyl at the Property.
(Doc. #29, PAGEID 79-80; Doc. #29-1, PAGEID 88-89). Contrary to Defendant's
argument, the corroboration did not come from Defendant's "stale criminal
history related to drugs. " (Doc. #21, PAGEID 47).
Moreover, as discussed by the Government, the Cl described the illicit
substances with particularity, which lends greater weight to the statement. (Doc.
#29, PAGEID 78, citing Woos/ey, 361 F. 3d at 927; 777/77a/7, 404 F. App'x at 952 (6th
Cir. 2010); Doc. #29-1, PAGEID 88-89). While Orick failing to specify in the Affidavit
whether there were statements from only one or from multiple Cis is regrettable,
the reliable history and external corroboration of the March 2025 statement is
more than enough for that statement to serve as part of Judge Melnick's probable
cause determination.
4. Inaccurate information in the Affidavit: In Reply, Defendant argues for
the first time that:
[1-1]e was building a shed at his premises and that an individual
he believes to be the Cl was helping him construct the roof for
this structure. The Cl believed to be at issue brought a large
number of pills with him into the shed that he was attempting
to sell to Mr. Kincaid. The Cl photographed the pills with his
own telephone. Mr. Kincaid states that he told this individual
to leave his premises and that Kincaid had nothing to do with
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these drugs that were brought onto his premises without his
consent. In fact, the Affidavit indicates this occurred in his
kitchen, when the incident actually occurred inside the shed
that was under construction.
(Doc. #32, PAGEID 96-97). Arguments raised for the first time in a reply
memorandum, even in a motion to suppress, are generally considered waived.
See, e. g., Ryan v. Hazel Park, 279 F. App'x 335, 339 (6th Cir. 2008) ("Generally, this
Court has found that an issue raised for the first time in a reply to a response brief
in the district court is waived. "); United States v. Ford, 183 F. Supp. 3d 22, 38
(D. D. C. 2006) ("These new bases for suppression are waived because Ford raised
them for the first time in his reply brief. "). However, even if the Court were to
consider the argument herein, it is unavailing. As discussed above, the Cl had
provided reliable information on drug trafficking in the past, and the information
the Cl provided was corroborated by law enforcement observation and multiple
other sources. Orick reasonably relied on the Cl's statement at the time of
drafting the Affidavit, and Judge Melnick, in turn, reasonably relied on the
statement's accuracy at the time of issuing the search warrant. To invalidate on
the basis of the Cl's inaccuracy is to engage in a backwards-looking analysis that
this Court cannot do. See United States v. Sember, 170 F. Supp. 3d 1049, 1061-62,
1063 (S. D. Ohio 2016) (Rose, J. ) (overruling in relevant part a motion to suppress
because the officer had reasonable belief for including a statement in the affidavit,
even though the underlying basis for the statement turned out to be inaccurate).
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5. Nexus between d ru traffickin and the Pro e : Although
Defendant does not argue a lack of nexus between the alleged criminal activity
and the Property, the Affidavit, as discussed above, easily provided probable
cause "to believe that the evidence would be found at the place cited. " Davidson,
936 F. 2d at 859.
Accordingly, probable cause existed for Judge Melnick's issuance of the
warrant. Defendant has not demonstrated a Fourth Amendment violation, and the
Motion must be overruled.2
B. Good-Faith Exception
Leon and its progeny establish the good-faith exception as a failsafe if it
were determined later that the search warrant that law enforcement officers
executed lacked probable cause. See, e. g., Carpenter, 360 F. 3d at 595 (internal
quotation marks omitted), quoting United States v. Bynum, 293 F. 3d 192, 195 (4th
Cir. 2002) (Good-faith exception requires "a less demanding showing than the
'substantial basis' threshold required to prove the existence of probable cause. ").
Accordingly, because probable cause existed for the issuance of the warrant, the
Court need not determine whether the good-faith exception would have applied.
C. Motion for Franks Hearing
Defendant raises two main arguments in support of his prayer for a Franks
hearing. First, as discussed previously, Defendant essentially claims that he was
2 As Defendant's Motion to Suppress fails on the merits even considering the material that the
Government argues should be stricken, the Government's Motion to Strike (Doc. #37) is
OVERRULED AS MOOT
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framed by the Cl through the latter bringing drugs to the Property and, through
his photographing the fentanyl at the Property and his statements to law
enforcement, making it seem as though the fentanyl was always in Defendant's
possession. (Doc. #33, PAGEID 102). Defendant argues Orickwas reckless in
averring that the pills photographed by the Cl belonged to Defendant. (Id. }.
Second, Defendant asserts that "[w]ith respect [to] evidence concerning the
cutting offentanyl with a purple substance, Mr. Kincaid submits that the police
knew that the evidence did not support doing this and that common sense should
have alerted them that it made no sense for him to have been doing this. " (Id. }.
Defendant's Motion is unavailing for several reasons. Defendant did not
attach a declaration or submit any evidence supporting either of the above
barebones legal conclusions, making his arguments purely speculative. Second,
as discussed above, the photograph of the fentanyl pills came not from the Cl, but
from a Jason Davidson; the Cl merely confirmed that the countertop that the pills
were on what looked like the Defendant's countertop. (Doc. #29-1, PAGEID 88).
Defendant also fails to explain why law enforcement should have known that
Defendant would not use colored chalk to cut fentanyl for sale; nor does he
explain why common sense should have alerted law enforcement that he would
not use chalk to color the fentanyl he sold. More importantly. Defendant has not
put forth any evidence that Orick knew or should have known that those
statements were false when he submitted the Affidavit. As Plaintiff has failed to
meet the first prerequisite for a Franks hearing-showing that Orick knowingly or
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intentionally included a false statement in the Affidavit, or included a false
statement with reckless disregard for the truth, Pirosko, 787 F. 3d at 369-the
Motion for such a hearing must be overruled.
III. Conclusion
For the foregoing reasons. Defendant's Motion to Suppress (Doc. #21) and
Motion for FranksHeanng (Doc. #33) are OVERRULED, and the Government's
Motion to Strike (Doc. #37) is OVERRULED AS MOOT.
IT IS SO ORDERED.
January 9, 2026
J.	lo^b^r u. ^LCc^
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT
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