Opinion
21-00070-02-CR-W-BCW
01-20-2022
UNITED STATES OF AMERICA, Plaintiff, v. KENNETH BEALS JR., Defendant.
REPORT AND RECOMMENDATION
W. BRIAN GADDY UNITED STATES MAGISTRATE JUDGE
Pending is Defendant Kenneth Beals Jr.'s Motion to Suppress, which was filed on October 1, 2021. Doc. 46. On October 14, 2021, the Government filed its opposition to Defendant's motion. Doc. 47. And, on October 28, 2021, Defendant filed his reply. For the reasons set forth below, the undersigned recommends Defendant's Motion to Suppress be DENIED.
I. BACKGROUND
On April 9, 2021, the grand jury returned an indictment charging Phillip J. Brocks and Kenneth Beals Jr. with one count of possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (Count One), one count of possession with intent to distribute less than 50 kilograms of marijuana within 1, 000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 860(a) (Count Two), and one count of possession of firearms in furtherance of a drug trafficking offense in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count Three). Doc. 20. The alleged offenses involve controlled substances and firearms seized when law enforcement executed a search warrant at Defendants' shared residence. Defendant Beals filed a Motion to Suppress arguing all evidence seized must be suppressed because probable cause did not exist when the warrant was issued, and the warrant lacked particularity. Doc. 46.
On December 9, 2021, the undersigned held an evidentiary hearing on Defendant's motion. Docs. 54, 56. Defendant was present and represented by counsel, James Spies. The Government was represented by Assistant United States Attorney Byron Black. At the hearing, one witness - Special Agent James Payne - testified. In addition, the Court admitted one exhibit - i.e., Government Exhibit 1, which contained the search warrant at issue, the application for the search warrant, supporting affidavit, search warrant return, and receipt of property seized. Doc. 55.
Government Exhibit 1 is identical to Exhibit 1 to the Government's Suggestions in Opposition to the Motion to Suppress. Doc. 47-1. To avoid confusion, the Court refers to the filed exhibit (Doc. 47-1) when referencing Government Exhibit 1.
II. FINDINGS OF FACT
Based on the evidence adduced at the evidentiary hearing, the undersigned submits the following findings of fact:
1. On January 6, 2021, Kansas City, Missouri Police Department (“KCPD”) officers responded to 6245 Agnes Avenue, Kansas City, Missouri (“the residence”) after two individuals sustained non-life-threatening gunshot wounds outside the residence. Doc. 47-1 at 10; Tr. at 31-32. Defendant Brocks and others were identified at the residence. Doc. 47-1 at 10. After obtaining written consent, KCPD officers searched the residence, finding two AR-type pistols. Id. at 11; Tr. at 32-33. Neither firearm, however, was believed to be involved in the shooting. Tr. at 33.
“Tr.” refers to the Transcript of Hearing on Motion to Suppress. Doc. 56.
2. On January 15, 2021, KCPD was informed of shooting victims at Research Medical Center. Doc. 47-1 at 11. Upon arrival, officers observed a white Mitsubishi with several bullet holes parked in the ambulance bay. Id. Medical staff informed the officers that the vehicle's occupants - driver Damon Williams and passengers Charles Henderson and Derrick Williams - were in the hospital. Id. Derrick Williams and Henderson were unresponsive. Id.
3. Officers spoke with Damon Williams who reported he and the other vehicle occupants went to the residence because Derrick Williams wanted to purchase marijuana from Kenny, who is believed to be Kenneth Beals Sr., Defendant Beals's father. Id.; Tr. at 36, 38. Upon arrival, they told Defendant Beals they wanted to purchase marijuana. Doc. 47-1 at 11. Defendant Beals went inside the residence, and Damon Williams, Derrick Williams, and Henderson returned to their vehicle. Id. While waiting in the vehicle, a silver SUV approached, and an unknown black male suspect exited the SUV with a rifle and started shooting at them. Id.
4. Due to the two shootings, the Bureau of Alcohol, Tobacco, Firearms and Explosive (“ATF”) initiated an investigation of the residence. Doc. 47-1 at 10. On January 21, 2021, Alec Davis, an ATF special agent, conducted surveillance of the residence. Doc. 47-1 at 12; Tr. at 39. He observed a 2004 Mazda 6 with Missouri license plate JG5T4H parked in the residence's garage. Doc. 47-1 at 12; Tr. at 39. Agent Davis learned the license plate was registered to Tiffany Beals with a transfer on death to Defendant Beals. Doc. 47-1 at 12; Tr. at 39.
5. On January 22, 2021, Agent Davis continued surveilling the residence. Doc. 47-1 at 12; Tr. at 40. At approximately 8:39 a.m., a black GMC Terrain SUV with no front license plate backed into the residence's driveway. Doc. 47-1 at 12; Tr. at 40. Roughly one minute later, the garage door opened, and an unknown subject exited the garage. Doc. 47-1 at 12. The subject went around the southeast corner of the residence for twenty to thirty seconds, then went to the SUV, and got into the front passenger seat. Id. Less than one minute later, the subject left the SUV and ran back into the garage. Id. About one minute later, the subject returned to the SUV and opened the front passenger door but did not get in the vehicle. Id. The subject then ran back into the garage. Id. As the garage door shut, the SUV drove away. Id.
6. At approximately 9:40 a.m. that same day, Agent Davis observed a beige Kia Optima pull into the residence's driveway. Doc. 47-1 at 12; Tr. at 45. About three minutes later, the residence's garage door opened, and an African American male with long hair contacted the Optima's driver. Doc. 47-1 at 12; Tr. at 45. The contact lasted less than three seconds, after which the African American male returned to the garage, and the Optima left. Doc. 47-1 at 12; Tr. at 47.
7. Later that day, at around 7:28 p.m., a dark-colored, four-door car parked next to the sidewalk by the residence. Doc. 47-1 at 12; Tr. at 47. Roughly two minutes later, an unknown subject exited the residence and made contact with the vehicle's front passenger for a few seconds. Doc. 47-1 at 12; Tr. at 47. The unknown subject then walked back to the residence, and the vehicle drove away. Doc. 47-1 at 12-13; Tr. at 47. During this brief contact, another unknown subject exited the residence but remained on the front porch. Doc. 47-1 at 13.
8. On March 8, 2021, ATF Special Agent Kris Olsen surveilled the residence. Doc. 47-1 at 13. The agent observed a red Oldsmobile Alero pull into the residence's driveway. Id. Shortly thereafter, a male suspect exited the residence and walked to the driver's side of the vehicle. Id.; Tr. at 48. Based on police reports and a comparison of known photographs, the male suspect was identified as Defendant Beals. Doc. 47-1 at 13. Agent Olsen observed Defendant Beals holding a clear plastic object. Id. The agent also noted the imprint of a Glock-style handgun in Defendant Beals's left front pant pocket. Id. Defendant Beals conducted a brief, hand-to-hand transaction with the vehicle's driver. Id.
9. On March 9, 2021, at approximately 4:03 p.m., Agent Olsen witnessed a brown Toyota Camry pull up to the west sidewalk by the residence. Doc. 47-1 at 13; Tr. at 48. Soon thereafter, a male suspect exited the residence holding a small, white object in his left hand. Doc. 47-1 at 13. Based on police reports, Defendant Brocks had previously identified the residence as his address. Id. at 13-14. Based on a comparison of known photographs, investigators identified the male suspect as Defendant Brocks. Id. The agent observed a pistol with a red/orange grip in Defendant Brocks's waistband. Id. While walking to the vehicle, Defendant Brocks kept his right hand on the pistol's grip. Id. at 14. Defendant Brocks conducted a brief, hand-to-hand transaction with the vehicle's driver. Id. He received a paper bag and a partially full cup from the vehicle's driver and returned to the residence. Id.
10. A query of the Camry's license plate revealed two individuals were arrested within the vehicle in April 2019. Doc. 47-1 at 14. The officers discovered approximately eight grams of suspected methamphetamine, a digital scale, and drug paraphernalia. Id.
11. On March 10, 2021, Agent Olsen researched Defendant Beals's criminal history. Doc. 47-1 at 14. His research revealed the following:
a. On May 20, 2020, a Glock handgun was recovered during a traffic stop of Defendant Beals at 900 East Armour Avenue, Kansas City, Missouri. Id. The firearm was returned to him during or soon after the traffic stop. Id. On January 17, 2021, officers discovered the firearm when an unknown individual at 3471 Wyoming Street, Kansas City, Missouri, apparently dropped the firearm when fleeing from law enforcement. Id.
b. On April 2, 2020, a traffic stop of Defendant Beals was conducted after he left a residence suspected of association with drug trafficking activity. Id. Defendant Beals told law enforcement the residence was his grandmother's. Id. A bag with approximately 3.95 grams of suspected marijuana was found under the driver's seat. Id. at 14-15. Defendant Beals told the officers his aunt gave him the marijuana. Id. at 15.
12. Agent Olsen conducted a query of Missouri license plate JF1R1N, which was registered to Tiffany Beals at the residence. Doc. 47-1 at 15. On September 14, 2020, a 2004 Mazda 6 bearing Missouri license plate JFIRlN, while driving through a gas station parking lot, struck another vehicle and left the accident. Id. The victim followed the Mazda and recorded the license plate number. Id. When the Mazda's driver noticed the victim following, the driver raised a pistol out of the window and fired multiple shots in the air. Id. Agent Davis had observed a 2004 Mazda 6 at the residence on January 21, 2021, but the license plate was different. Id. at 12, 15.
13. In addition to Agents Davis and Olsen, ATF Special Agent James Payne, who has eight years of law enforcement experience, was involved in the investigation of the residence. Tr. at 6-9. Agents Davis, Olsen, and Payne discussed the investigation on numerous occasions to ensure their knowledge and understanding of the facts were clear and correct. Tr. at 8.
14. Based on the totality of the circumstances surrounding the January 2021 encounters between the residence's occupants and visitors and the March 2021 hand-to-hand transactions involving both defendants and visitors to the residence, the information provided to law enforcement by Damon Williams, the two shootings near the residence, and his training and experience, Agent Payne believed controlled substances were being sold at the residence. Tr. at 44, 54-55, 60-61; Doc. 47-1 at 13-14.
15. Agent Payne was aware, based on his training and experience, that persons involved in distributing controlled substances commonly keep and maintain firearms to protect themselves, their products, and their proceeds. Tr. at 24-25, 62-65; Doc. 47-1 at 9, 15. He believed Defendants possessed firearms at the residence in furtherance of their distribution of controlled substances because they were observed possessing firearms while conducting what were believed to be drug transactions in March 2021 and firearms were found in the residence in January 2021. Tr. at 62; Doc. 47-1 at 10-11, 13-16.
16. With the assistance of Agents Davis and Olsen, Agent Payne drafted an application for a search warrant of the residence. Tr. at 7-10, 29-30; Doc. 47-1 at 6-16. Agent Payne's search warrant application was based on his investigation, information that other agents provided to him, and police reports. Doc. 47-1 at 9; Tr. at 29-30, 36-37, 39.
17. Agent Payne also prepared Attachment B to the search warrant application. Tr. at 10-11; Doc. 47-1 at 4-6, 10, 16. Attachment B identified the items law enforcement sought to seize upon execution of the search warrant. Tr. at 10-11; Doc. 47-1 at 4-6, 10, 16. As detailed in his affidavit, Agent Payne listed items he believed, based on his training and experience, were associated with drugs, drug trafficking, and/or firearms. Tr. at 11-12, 18; Doc. 47-1 at 7-10. Because Agent Payne did not have the benefit of knowing what law enforcement would encounter inside the residence, he utilized his training and experience to draft Attachment B to “include documents, even valuable items, anything that a drug or firearm trafficker might purchase in order to either conceal the proceeds of illegal activities or simply spend the proceeds of illegal activities.” Tr. at 11-12, 58-59; see also Doc. 47-1 at 8.
18. Attachment B included controlled substances as listed in 21 U.S.C. § 812; paraphernalia, instruments, or documents evincing illicit possession, use, dealing, or distribution of controlled substances; and firearms, ammunition, and items specifically associated with firearms or ammunition. Doc. 47-1 at 4. In addition, it listed other items to be seized including, inter alia, the following:
3. Books, records, receipts, bank statements, canceled checks, deposit items, bank drafts, money orders, . . . financial statements, loan records, real rate purchase and/or rental records . . ., records reflecting the purchase, sale or lease of automobiles . . ., false identification used to
acquire assets or make expenditures in alias . . ., records reflecting the purchase of items such as jewelry, furs, furniture and electronics, or other expenditures of money;
4. Address or telephone books and papers reflecting the names, addresses and telephone numbers of associates, . . . co-conspirators, sources of supply, customers, financial institutions, and other individuals or businesses with whom a financial relationship exists;
5. Tickets, schedules, papers, notes, receipts, and other items relating to domestic or foreign travel;
6. United States currency and financial instruments, including stocks, bonds, and other securities . . . .
9. Indicia of occupancy, residency, or ownership of the [residence] including, but not limited to, utility and telephone bills, received mail, keys, lease agreements . . . .
12. Cellular telephones, contracts, purchase and/or rental agreements, and billing records relative to the acquisition and use of pagers and/or cellular telephones, and electronic contact lists in cellular phones . . . .
14. Computers, including ‘smart cellular phones,' cameras or surveillance equipment, computer software, and computer diskettes utilized to maintain financial records; and
15. Items evidencing the expenditure of the proceeds of drug distribution including, but not limited to, clothing, furniture, television sets, and jewelry, relative to the receipt of funds obtained as a result of drug transactions during the relevant period of time of the investigation herein.
Attachment B listed additional items to be seized but Defendant Beals does not raise issues with items not identified above. See Doc. 46 at 5-6.
19. On March 16, 2021, Agent Payne signed and submitted the application for the search warrant. Tr. at 13-14; Doc. 47-1 at 6. That same day, the Honorable Lajuana Counts, Magistrate Judge for the United States District Court for the Western District of Missouri, telephoned Agent Payne, who was placed under oath and swore the contents of his application and supporting affidavit were true. Tr. at 14-15; Doc. 47-1 at 6, 16. Shortly thereafter, Judge Counts issued the search warrant, which included Attachment B. Tr. at 15-16; Doc. 47-1 at 1-5.
20. On March 19, 2021, law enforcement executed the search warrant and inventoried the items seized. Tr. at 17, 56; Doc. 47-1 at 18-21. The agents seized, among other things, two AR-style firearms, suspected counterfeit currency, ammunition, digital scales, suspected marijuana, drug paraphernalia, and more than 60 shell casings. Tr. at 21-22, 50-51; Doc. 47-1 at 18-21. No. clothing, furniture, televisions, or common household items were seized. Tr. at 58-59.
III. DISCUSSION
Defendant raises two arguments in support of his Motion to Suppress. See Doc. 46. First, he argues the search warrant was not supported by probable cause when it was issued. See Id. at 3-4. Second, he contends the search warrant, including Attachment B, was overbroad and lacked particularity. See Id. at 4-6.
A. Probable Cause
The Fourth Amendment provides “no Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV. “Probable cause means a fair probability that contraband or evidence of a crime will be found in a particular place, given the circumstances set forth in the affidavit.” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting United States v. Lemon, 590 F.3d 612, 614 (8th Cir. 2010)). Probable cause must exist at the time the warrant is issued. See United States v. Jeanetta, 533 F.3d 651, 654-55 (8th Cir. 2008) (citation omitted). “Determining whether probable cause exists requires a commonsense analysis of the facts available to the judicial officer who issued the warrant.” Colbert, 605 F.3d at 576 (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). “When the issuing judge relie[s] solely on the affidavit supporting the application for search warrant, ” as is the case here, “only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.” United States v. Roberts, 975 F.3d 709, 713 (8th Cir. 2020) (quoting United States v. Etheridge, 165 F.3d 655, 656 (8th Cir. 1999)). A reviewing court accords “great deference” to the initial determination of probable cause by the judge who issued the warrant. Id.; see also United States v. Johnson, 848 F.3d 872, 876 (8th Cir. 2017).
Defendant contends probable cause did not exist when the search warrant was issued because the information in the warrant had grown stale. Doc. 46 at 3-4. “A warrant becomes stale if the information supporting the warrant is not sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search.” United States v. Colbert, 828 F.3d 718, 727 (8th Cir. 2016) (citations and internal quotations omitted). Because there is no “bright-line test” to determine when information in a warrant grows stale, courts consider several factors. Johnson, 848 F.3d at 877 (citations omitted). These factors include but are not limited to “the lapse of time since the warrant was issued, the nature of the criminal activity, and the kind of property subject to the search.” Id. (quoting Colbert, 828 F.3d at 727).
When “continuing criminal activity is suspected, the passage of time is less significant.” Jeanetta, 533 F.3d at 655 (citation omitted); see also United States v. Smith, No. 21-1104, 2021 WL 6068644, at *2 (8th Cir. Dec. 23, 2021) (citation omitted) (stating the passage of time is less important “when the facts recited indicate activity of continuous nature.”). Specific to narcotics and firearms, “intervals of weeks or months between the last described act and the application for a warrant [does] not necessarily make the information stale.” Jeanetta, 533 F.3d at 655 (citation omitted); see also Smith, 2021 WL 6068644, at *2 (citations omitted) (noting the Eighth Circuit has found information more than three months old was not stale, and finding three-month old information involving a firearm offense, which was continuing in nature, was not stale); United States v. Smith, 266 F.3d 902, 904-05 (8th Cir. 2001) (affirming the district court's denial of the defendant's motion to suppress because information about three-month old drug transactions included in the affidavit accompanying the search warrant application had not grown stale); United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001) (finding information about four drug transactions in June 1998 and a precursor chemical transaction on July 31, 1998, was not stale when the warrant was issued on August 3, 1998); United States v. Formaro, 152 F.3d 768, 771 (8th Cir. 1998) (finding “where continuing criminal activity was suspected, ” a two and one-half week time lapse between the last controlled buy and a search warrant application did not render the information stale).
In this matter, the affidavit submitted with the warrant application detailed the ATF's investigation of the residence, which began after two shootings occurred outside the residence in January 2021. Soon after the shootings, the ATF surveilled the residence. On January 22, 2021, an ATF agent observed three instances where the residence's occupants made brief contacts with vehicles parked near the residence. Based on law enforcement's experience and training, these contacts were consistent with hand-to-hand drug transactions.
Approximately six weeks later, the ATF again surveilled the residence. On March 8, 2021, an agent observed Defendant Beals, with a handgun in his front pant pocket, conduct a brief hand-to-hand transaction with the driver of a vehicle parked in the residence's driveway. On March 9, 2021, the agent witnessed Defendant Brocks exit the residence with a pistol in his waistband and a small, white object in his left hand. He then conducted a brief hand-to-hand transaction with the driver of a vehicle parked near the residence. Based on their training and experience, law enforcement believed Defendants Brocks and Beals conducted drug transactions while armed with firearms. One week later, on March 16, 2021, Agent Payne applied for the search warrant at issue, and the warrant was issued the same day. Three days later, the warrant was executed. The time interval between the various observations of the investigating officers and the execution of the search warrant was reasonable.
Defendant further contends law enforcement officers failed to conduct controlled drug buys, trash pulls, car stops, or other investigative techniques to corroborate the agents' observations of suspected hand-to-hand transactions at the residence. Doc. 46 at 2; Doc. 51 at 2; Tr. at 41-43, 47-50, 53-54, 66-67. The agent's conclusion in the affidavit - that the brief encounters between occupants of the residence and visitors were consistent with hand-to-hand drug transactions - is a reasonable inference that is permitted in establishing probable cause to obtain a search warrant. See, e.g., United States v. Augard, 954 F.3d 1090, 1094 (8th Cir. 2020) (recognizing law enforcement officers may make reasonable inferences in preparing affidavits in support of a search warrant); United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (same); United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000) (same). There is no requirement under the Fourth Amendment that officers use additional law enforcement techniques, including controlled buys, trash pulls, car stops, or other methods to confirm or corroborate observations made during surveillance.
The undersigned reviewed the totality of the circumstances provided in the four corners of the affidavit submitted with the search warrant. Based on the nature of the suspected ongoing criminal activities, law enforcement's training and experience, the agents' observations during surveillance, and the kind of property to be searched, the undersigned finds the information in the search warrant application and accompanying affidavit had not grown stale. Accordingly, the undersigned recommends a finding that probable cause existed when the search warrant was issued. For these reasons, the undersigned recommends Defendant's Motion to Suppress be denied as it relates to probable cause and/or staleness.
B. Particularity
Defendant also argues the search warrant was overbroad and lacked particularity, and thus, allowed the Government to conduct an exploratory search of the residence. Doc. 46 at 4-6. The Fourth Amendment requires a search warrant “particularly” describe the “the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The “specificity requirement has been construed by the courts to provide a practical margin of flexibility in the degree of specificity required in search warrant descriptions.” United States v. Porter, 831 F.2d 760, 764 (8th Cir. 1987). “[T]he standard used to determine the adequacy of the warrant description is one of ‘practical accuracy' and that the degree of specificity may necessarily vary according to the circumstances and types of items involved.” Id. (quoting United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir. 1976)). “Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice.” Id. (citation omitted).
Defendant contends eight categories of items listed in Attachment B to the warrant lacked particularity. See Doc. 46 at 4-6 (identifying Paragraphs 3, 4, 5, 6, 9, 12, 14, and 15). He, however, does not cite any case law specific to each of these categories of items in analogous circumstances. He also does not identify which items seized by law enforcement fall within the various categories of items listed in Attachment B that he now seeks to challenge on particularity grounds. Nevertheless, as set forth supra, the search warrant application in this matter was supported by an affidavit detailing events and activities that occurred at the residence in January 2021 and March 2021. The affidavit described law enforcement's observations of the residence's occupants, including Defendants, conducting what appeared to be drug transactions, and Defendants possessing firearms while engaging in the hand-to-hand transactions.
Agent Payne prepared Attachment B by listing items he believed, based on his training and experience, were indicia of the suspected crimes being committed by Defendants. Relevant to the categories of items at issue, he stated persons involved in distributing controlled substances often do, inter alia, the following:
- [C]onceal in their residences . . . large amounts of currency, financial instruments, and other assets of value which are the proceeds of drug transactions [and/or conceal] evidence of financial transactions relating to obtaining, transferring, secreting, or spending large sums of money related to engagement in drug trafficking activities;
- [O]ften purchase substantial assets including cars, boats, and homes with the proceeds of drug transactions in manners to conceal the true source of the funds;
- [M]aintain on the premises tickets, schedules, schedules . . . and other items relating to domestic and foreign travel;
- [M]aintain on the premises addresses and telephone numbers in books or papers and in contact lists in cell phones which reflect the names, addresses, and/or telephone numbers for their sources, customers, and associates related to their drug trafficking activities, even though sometimes in code; and
- [U]tilize cell phones and other communication devices in order to store contact lists and to arrange for delivery and distribution of controlled substances.
Doc. 45-1 at 8-9.
Six of the eight categories of items at issue were discussed in United States v. Krasaway, 881 F.2d 550, 553 (8th Cir. 1989). Therein, the Eighth Circuit found the following categories of items to be seized were stated with sufficient specificity: “[a]ddress and/or telephone books, papers and other items reflecting names, addresses, and telephone numbers of co-defendants or conspirators”; “[b]ooks, records, receipts, bank statements, money drafts, letters of credit, money orders and cashiers check receipts, passbook documents indicating the locations of safety deposit boxes and other items evidencing the obtaining, secreting, transfer and/or concealment of assets and the obtaining, secreting, transfer and/or expenditure of money”; “United States currency, precious metals, jewelry, financial statements or documents including, but not limited to, stocks and bonds, and other valuables purchased with the fruits and proceeds of controlled substance transactions”; and “[i]ndicia of occupancy, residency, or payments of utilities and rent.” Id. at 551 n.2. The Eighth Circuit found these categories of items were sufficiently specific because “a more precise description” of items indicative of drug activities “was unascertainable at the time the warrant was obtained.” 881 F.2d at 553.
Based on Krasaway and the totality of the circumstances presented in the current matter, the undersigned finds Paragraphs 3, 4, 6, 9, 14 and 15 were sufficiently specific considering the detailed affidavit submitted in support of the search warrant, and the fact that the precise identity of the items could not be identified by Agent Payne when he applied for the search warrant. See Doc. 47-1 at 7-16.
Although Paragraph 14 lists “[c]omputers, including ‘smart cellular phones,' cameras or surveillance equipment, computer software, and computer diskettes, ” the only items to be seized were those “utilized to maintain financial records.” Doc. 47-1 at 5.
Similar to Krasaway, which listed “valuables purchased with the fruits and proceeds of controlled substance transactions, ” Paragraph 15 directed the seizure of “[i]tems evidencing the expenditure of the proceeds of drug distribution.” Compare Doc. 47-1 at 5 with Krasaway, 881 F.2d at 551 n.2. Notably, Agent Payne confirmed no clothing, furniture, televisions, or any “relatively common household items” were seized. Tr. at 58.
The remaining two categories of items at issue pertain to documents linked with domestic or foreign travel (Paragraph 5) and cellular telephones and documents related thereto (Paragraph 12). Doc. 47-1 at 4-5. Courts have held similar categories of items in comparable circumstances were described with sufficient particularity. See, e.g., United States v. Corely, No. 06-4002-11-CR-C-NKL, 2007 WL 2231254, at *2, 5 (W.D. Mo. Aug. 1, 2007) (finding the categories of items to be seized - including but not limited to records related to domestic and foreign travel - were described with sufficient particularity); United States v. Hargrove, No. CRIM 06-211 MJD/AJB, 2006 WL 3081093, at *1 (D. Minn. Oct. 27, 2006) (finding the search warrant “properly and sufficient identified . . . the items to be seized, ” which included “travel documents” and “electronic and communications devices”). In addition, the Eighth Circuit has found law enforcement properly seized cell phones, which were not specifically mentioned in the search warrant, because “cell phones were within the class of ‘instrumentalities of criminal activity' the warrant specifically described.” United States v. Coleman, 909 F.3d 925, 931 (8th Cir. 2018). Like the case before this Court, Coleman involved controlled substance and firearm charges. Id. at 928-29.
Based on the totality of the circumstances presented in this matter, the undersigned finds the categories of items in Paragraphs 5 and 12 were described with sufficient particularity considering the totality of the circumstances and recommends Defendant's Motion to Suppress be denied as it relates to particularity.
C. Severability
Even if the Court were to find Paragraphs 3, 4, 5, 6, 9, 12, 14, and/or 15 were invalid due to lack of particularity, any objectionable portion may be severed from the remainder of the warrant. United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983). Absent a showing of bad faith or pretext, “the infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant . . . but does not require the suppression of anything described in the valid portions of the warrant.” Id. at 637. Because no evidence of bad faith or pretext was presented in this matter, the firearms, drug paraphernalia, controlled substances, ammunition, firearm magazines, spent shell casings, and digital scales, which were seized pursuant to Paragraphs 1, 2, 7, 8, 10, 11, and 13, should not be suppressed.
As an example, Defendant spent considerable time challenging Paragraph 15 of Attachment B, which authorized the seizure of items evidencing the expenditure of proceeds of drug distribution including, but not limited to, clothing, furniture, television sets, and jewelry. See Doc. 46 at 5; Tr. at 58-59. Agent Payne, however, confirmed no such items were seized from the residence when the search warrant was executed. Tr. at 58-59. Since no items were seized under this category, there is nothing to suppress, even if Paragraph 15 was found to lack particularity. Further, even if Paragraph 15 was found to lack particularity, such a finding would not invalidate the remainder of the warrant and the other categories of items seized.
In addition, an item not particularly described in the warrant may not be suppressed if the item's seizure falls within an exception to the Fourth Amendment's warrant requirement. United States v. Clay, 579 F.3d 919, 932 (8th Cir. 2009) (citation omitted); Fitzgerald, 724 F.2d at 636-37. The Government contends probable cause existed to search the residence for marijuana, which is readily concealed in small containers. Doc. 47 at 14. Thus, it argues all evidence seized during law enforcement's search for marijuana could have been seized pursuant to the plain view doctrineor the inevitable-discovery doctrine. Doc. 47 at 14. The Government did not identify which items could have been seized pursuant to either or both doctrines. See Doc. 47. Regardless, Defendant does not seem to dispute the basis of the Government's argument. See Doc. 51. Consequently, the undersigned will not specifically address which of the more than fifty seized items potentially fall within the purview of either or both doctrines.
To qualify under the plain view exception, the Government must prove (1) the item was in plain view, (2) the officer was lawfully located where he or she may view the object, and (3) the item's incriminating nature was “immediately apparent.” Clay, 579 F.3d at 932 (citing Horton v. California, 496 U.S. 128, 136-37 (1990)). An item's incriminating nature is considered “immediately apparent” if the officer has “probable cause to associate the property with criminal activity.” Id. (quoting United States v. Garner, 907 F.2d 60, 62 (8th Cir. 1990)).
“The inevitable-discovery doctrine . . . applies if the evidence would have been acquired by lawful means had the unlawful search not occurred but in fact was not acquired (or reacquired) by these lawful means.” United States v. Baez, 983 F.3d 1029, 1037 (8th Cir. 2020), cert. denied, 141 S.Ct. 2744 (2021) (citation omitted) (emphasis in original).
D. Good Faith Exception
If the Court were to conclude the search warrant lacked probable cause or particularity, the Government maintains law enforcement was entitled to rely in good faith on the warrant. Doc. 47 at 15-16. When evidence is seized in violation of the Fourth Amendment, it may be suppressed pursuant to the exclusionary rule. United States v. Eggerson, 999 F.3d 1121, 1124 (8th Cir. 2021) (citing United States v. Leon, 468 U.S. 897, 906 (1984)). But the Leon good faith exception may apply even when a search warrant is defective or invalid. Id. (citing Leon, 468 U.S. at 925). “Leon establishes that if an officer (1) obtains a search warrant (2) that appears properly issued on its face and (3) executes it within its scope and with objective good faith reliance on the warrant's validity, then a defect in the probable cause analysis undergirding that warrant will not cause evidence to be suppressed.” Id. (citing Leon, 468 U.S. at 922).
The good faith inquiry is “confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the [issuing judge's] authorization.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) (citation omitted). There are four factors to consider in assessing whether an officer acted in good faith: (1) whether the affidavit or testimony supporting the warrant contained a false statement made knowingly and intentionally or with reckless disregard for its truth, thus misleading the issuing judge; (2) whether the issuing judge wholly abandoned her judicial role in issuing the warrant; (3) whether the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) whether the warrant is so facially deficient that no police officer could reasonably presume the warrant to be valid. United States v. Dickerman, 954 F.3d 1060, 1065 (8th Cir. 2020) (citation omitted). Here, there is no evidence of the existence of any of these factors.
Defendant Beals argues the good faith exception is inapplicable because the warrant lacked probable cause and was facially deficient due to its lack of particularity. Doc. 51 at 3-4. For the same reasons discussed supra, sections III(A) and (B), Defendant's arguments fail. However, should the Court find the search warrant lacked probable cause or sufficient particularity, the undersigned recommends that Defendant's Motion to Suppress be denied because the good faith exception applies.
IV. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Defendant Beals's Motion to Suppress (Doc. 46).
Counsel are reminded they have fourteen days in which to file any objections to this Report and Recommendation. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation except on the grounds of plain error or manifest injustice.