Opinion
CRIMINAL ACTION NO. 2:12cr30
12-17-2012
UNITED STATES OF AMERICA, Plaintiff, v. VELAIR VON COLLINS, II, Defendant.
REPORT AND RECOMMENDATION/OPINION
This matter is before the undersigned for consideration of Defendant, Velair Von Collins, II's "Motion to Suppress Evidence" [D.E. 16] and "Motion to Suppress Evidence Pursuant to Franks v. Delaware" [D.E. 17], both filed on November 30, 2012. The United States filed a consolidated Response to both Motions on December 6, 2012 [D.E. 20].
On December 14, 2012, came Defendant, in person, and by counsel, Brian J. Kornbrath, and the United States by its Assistant United States Attorney, Stephen D. Warner, for hearing on the motions.
I. Procedural History
Defendant Velair Von Collins, II was indicted by a grand jury attending the United States District Court for the Northern District of West Virginia on October 16, 2012 [D.E. 1]. The three-count indictment charges Defendant with Maintaining a Drug-Involved Premises (Count One); Possession of Material Used in the Manufacture of Methamphetamine (Count Two); and Possession of Firearms in Furtherance of a Drug Crime (Count Three). The indictment also contains a forfeiture count. An arrest warrant was issued, and Defendant was arraigned and pled "not guilty" on November 29, 2012.
II. Threshold Question Relevant To Contents of Search Warrants
Two separate search warrants were issued in this case, both on September 4, 2012. There was some confusion regarding the affidavits in support of these search warrants. In Defendant's Motion to Suppress he argued that the first search warrant affidavit is completely "bare boned," in that it "simply states the police 'observed a marijuana plant growing out of a 5 gallon bucket and sitting in plain view in the open field backyard of 225 Diamond Street.'" Defendant attached a copy of the warrant and affidavit in support, which does appear to contain only that one sentence. As regards the second search warrant, which he also attached to his Motion to Suppress, Defendant argued it failed to establish probable cause to search his residence for materials related to the manufacturing of methamphetamine, and the good faith exception does not apply as the affidavit in support was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Defendant states that the affidavit in support of the second search warrant simply stated: 1) a C.I. gave information of a possible meth lab; 2) the C.I. said numerous vehicles pulled up and left the residence after short visits: and 3) a foul smell is often smelled in the area of the residence.
This last statement is also the subject of Defendant's separate Motion to Suppress based on Franks v. Delaware.
In its Response, the United States advises there was some confusion as to the search warrants at issue, and that "if the Public Defendant secretary merely prints-out [sic] the pages and places them in a binder without benefit of the directory (i.e., index), that a reader would need to spend some time figuring it [sic] the material, rather than the short time it would take by reviewing my directory/index. Although the material does flow in numerical order. The second search warrant ends where the first one leaves off."
The first question for the Court is therefore whether both parties are in agreement regarding the content of the actual search warrant affidavits. The AUSA appearing and counsel for Defendant both stated on the record that they were in agreement as to the actual contents of the two search warrants, which did each contain a second page.
The affidavit in support of the first search warrant therefore states:
On the 4th of September 2012 while patrolling in the area of Diamond and Paul Street, this Officer Corporal C.D. Cross observed a marijuana plant growing out of a 5 gallon bucket which was sitting in plain view in the open field backyard of 225 Diamond Street City of Elkins, County of Randolph, State of West Virginia. Upon approaching the residence this Officer did also discover two more smaller marijuana plants, 1 growing in a green pot and 1 in a gray plastic container both sitting in the area of the marijuana plant in the 5 gallon bucket. This officer was unable to make contact with the resident of said address a male subject, namely Velair Von Collins II but did make contact with his wife, namely Stephanie Collins who was outside of the residence. Stephanie stated to this Officer that she has not lived at the residence since November of 2011 and she had only came [sic] by to visit Velair. While at the residence this officer did observe a red in color outbuilding with an approximately 50 to 100 lb propane cylinder with a black hose connected to it which ran through the side of the building to its interior. Prior to this incident Deputy B.T. Pawelczyk advised the Elkins Police Department that he was contacted by a Criminal Informant who gave him information pertaining to a possible meth lab being located at a trailer and outbuilding rented by Velair Collins located at the corner of Diamond and Paul Street Elkins WV. The C.I. also advised that lately the residence has been very busy and numerous vehicles have pulling [sic] up and leaving after short visits and that a foul smell is often smelled in the area of the residence. The C.I. also advised the Deputy that a Velair has been burning a fire in a fire ring located between the trailer and the building and the fire is used to destroy any waste and conceal the odor of a meth cook. This Officer did also view said fire ring located between the trailer and outbuilding. No further information at this time.
The second affidavit is a copy of the first, with the additional information added as follows:
On above date this Officer did obtain a search warrant for the property of 225 Diamond Street. Upon executing the search warrant this Officer along with Senior
patrolman R.W. Belt did discover an active methamphetamine cook as well as the precursors to making meth located inside of above mentioned outbuilding and trailer. No further information at this time.
III. The Contentions
The issues before the Court are as follows: 1. Whether there is a substantial basis for probable cause in the first affidavit for issuance of the first search warrant; 2. If there is not probable cause, whether the good faith exception applies; 3. The effect of the officer's omission from the first affidavit of the fact that neither he nor an earlier officer at the residence detected an odor; 4. Whether the first search warrant, if based only on the observation of marijuana, is too broad; and 5. Whether the seizure of the firearms was warrantless, as firearms are not mentioned in the warrant.
IV.Testimony and Evidence
The undersigned heard the testimony of Corporal C.D. Cross, of the Elkins, West Virginia Police Department, and admitted into evidence without objection 9 Exhibits. Corporal Cross testified that on September 4, 2012, he was patrolling in his marked police cruiser, in the area of Paul and Diamond Streets, when he observed what he believed was a marijuana plant growing outside in a pot. He turned his vehicle around and went back and pulled up to check, and saw it was a marijuana plant. Cpl. Cross identified Exhibits 4 and 5 as photos of the marijuana plant as seen from the road. He then walked up the driveway and observed two more, smaller marijuana plants next to the first. He identified Exhibit 6 as a close-up photo of the plants, and 7 and 8 as photos of the two smaller plants.
Cpl. Cross testified he went up to and knocked on the door of the residence (trailer) but no one answered. While there he saw the fire pit. There was no fire burning at the time. He went back to his office and told the Chief of Police what he had observed. Chief White told him about an email from Deputy B.T. Pawelczyk, which he thought was pertinent to what Cpl. Cross had discovered at the property. Cpl. Cross identified Exhibit 9 as the email from Deputy Pawelczyk that discussed information provided by a Confidential Informant ("CI") regarding a possible meth lab in Elkins at Defendant's residence, and information from other law enforcement officers who had patrolled the area.
Cpl. Cross and Chief White discussed getting a search warrant for the property. Chief White directed Corporal Cross to go back to the residence until another officer came on duty. When Officer Belt arrived at the residence, Cpl. White went to obtain the first search warrant. Cpl. White identified Exhibit 1 as the first search warrant and affidavit, and confirmed that it was five pages in length.
Cpl. Cross and Office Belt executed the first search warrant. When the entered an outbuilding, they saw a meth lab. When they entered the trailer they saw what appeared to be an active meth lab. They left the trailer and Cpl. Cross went to obtain the second search warrant based on the meth labs the officers observed during the first search. The officers did not seize anything pursuant to the first search warrant. Cpl. Cross identified Exhibit 2 as the second search warrant and affidavit. He identified Exhibit 3 as the list of items seized during the second search. He testified those items included precursors to meth manufacturing, including jars, coffee filters, scales, ziploc baggies, a cooking pot, ammonia, and liquid fire. There was a powdery white substance that had not yet been confirmed by the State Police Laboratory. Also seized were several firearms.
On cross examination Cpl. Cross testified that Deputy Pawelczyk's email was apparently sent the same day as he applied for the warrant, but very early in the morning. The deputy stated in the email that officers did not detect an odor at the residence. When asked why he did not share that information with the magistrate, Cpl. Cross stated that he "put in what he observed...that corroborated the email." He agreed that there was an inconsistency between the C.I. information that there was often a foul smell at the residence, and the police report that there was no smell when they patrolled the area. He also testified that he was experienced with meth labs and was familiar with the odor, and that he also did not smell any such odor at the residence, even when he went up to knock on the door. He was again asked why he did not put the fact that neither he nor the other officers smelled a foul odor in the affidavit. Cpl. Cross replied again that he "Just put in what [he] did observe, not what [he] didn't."
Cpl. Cross was also questioned about his use of the phrase "open field" in his affidavit. He testified that what that phrase meant to him was that it was an "open view- that nothing obstructed [his] view." When asked whether he could have described the actual proximity of the marijuana plant to the residence, he said he could have, but admitted he only used the term "open field."
V. Entitlement to Franks Hearing
Defendant moves to suppress evidence pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The motion is based in particular on a fact omitted by Corporal Cross in his affidavit. In the first affidavit, Corporal Cross states:
Prior to this incident Deputy B.T. Pawelczyk advised the Elkins Police Department that he was contacted by a Criminal Informant who gave him information pertaining to a possible meth lab being located at a trailer and outbuilding rented by Velair Collins located at the corner of Diamond and Paul Street Elkins WV. The C.I. also(Emphasis added). As Defendant correctly states, "at the time the search warrant was submitted to the magistrate for consideration, the police had already conducted a 'patrol of the area [which] revealed a small fire burning in the fire ring but no unusual odor was detected.'" (See Attachment, Police Report by Deputy B.T. Pawelczyk, dated September 4, 2012 at 12:02 a.m.)(Emphasis added). The report also stated that the C.I. did not wish to become involved, but stated they [sic] would contact the [undersigned] if they smelled the unusual odor again. (Emphasis added). Defendant argues that the magistrate should have had the following facts: 1) a C.I. claimed there were "foul smells" outside defendant's residence; but 2) a police investigation of the defendant's residence showed "no unusual odor was detected."
advised that lately the residence has been very busy and numerous vehicles have pulling [sic] up and leaving after short visits and that a foul smell is often smelled in the area of the residence. The C.I. also advised the Deputy that a Velair has been burning a fire in a fire ring located between the trailer and the building and the fire is used to destroy any waste and conceal the odor of a meth cook. This Officer did also view said fire ring located between the trailer and outbuilding. No further information at this time.
To be entitled to a Franks hearing, a defendant must make a "dual showing . . . which incorporates both a subjective and an objective threshold component." United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990). First, Defendants "must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks, 438 U.S. at 155-156 (quotations omitted). Second, the offending information must be essential to the probable cause determination. If the offending information is excluded and probable cause still remains, no Franks hearing is required. Id. Accord United States v. Friedmann, 210 F.3d 227, 229 (4th Cir.)(purpose of Franks hearing is "to prevent to admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was misled into believing that there existed probable cause"), cert. denied, 531 U.S. 875 (2000). A Franks hearing is not required where neither statements in the affidavit, nor alleged omissions, "operated to defeat the sufficiency of the probable cause showing otherwise made or . . . so seriously undermined [the affiant's] credibility as to render [the probable cause showing] unreliable"), Photogrammetric Data Services, 259 F.3d at 237-238 cert. denied, 122 S. Ct. 1295 (2002); United States v. Akinoye, 185 F.3d 192, 199 (4th Cir. 199)(Franks hearing not required where probable cause existed apart from alleged inconsistencies in affidavit.), cert. denied, 528 U.S. 1177 (2000); United States v. Gray, 47 F.3d_1359, 1364-65 (4th Cir. 1995) (Franks hearing not required absent "substantial preliminary showing" that affiant made knowing and intentional false statements); United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994)(noting Defendant's heavy burden in establishing need for Franks hearing); and United States v. Chavez, 902 F.2d 259, 265 (4th Cir. 1990) (Defendant must show that agent affirmatively tried to mislead magistrate to warrant Franks hearing; ambiguity or lack of clarity is insufficient).
In this case, the issue is not one of inclusion, but of omission. The Fourth Circuit first applied Franks to intentional, material omissions in U.S. v. Colkley, 899 F.2d at 301-302. To successfully attack an affidavit based on omitted information, the defendant must show: (1) that the omission is the product of a deliberate falsehood or of a reckless disregard for the truth, and (2) inclusion of the omitted information in the affidavit would defeat probable cause. Id. See also Photogrammetric Data Services, 259 F.3d at 237-238. However, as the Court noted in Colkley, all known exculpatory information need not be included in an affidavit, and omission of information is less likely to require a Franks hearing than is the knowing inclusion of false information.
The first step of Franks requires the undersigned to determine whether the omission of the fact that no unusual odor was detected by the police was made knowingly and intentionally or with reckless disregard for the truth. Based on a totality of the evidence and the demeanor of the witness, the undersigned finds the evidence does not establish reckless or intentional omission.
The second step of the Franks analysis states that Defendant must show that inclusion of the omitted information in the affidavit would defeat probable cause. The undersigned finds that the addition of the omitted information in this case would not defeat probable cause. According to the affidavit the C.I stated that "a foul smell is often smelled in the area of the residence." The C.I also advised the Deputy that "a Velair has been burning a fire in a fire ring located between the trailer and the building and the fire is used to destroy any waste and conceal the odor of a meth cook. This officer did also view said fire ring located between the trailer and outbuilding." Adding that he did not smell a foul smell in the area of the residence is actually consistent with the C.I.'s statement that the fire is used to conceal the odor. The police report from earlier that morning stated a small fire was actually burning at the time.
The undersigned finds Defendant has not met his burden under Franks of showing that statements in the affidavit or alleged omissions, "operated to defeat the sufficiency of the probable cause showing otherwise made or . . . so seriously undermined [the affiant's] credibility as to render [the probable cause showing] unreliable"), Photogrammetric Data Services, 259 F.3d at 237-238 cert. denied, 122 S. Ct. 1295 (2002).
VI. Motion to Suppress
"The right to privacy in one's home is a most important interest protected by the Fourth Amendment and a continuing theme in constitutional jurisprudence." United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996). "Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980) quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972). "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and there be free from unreasonable government intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961).
The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers and effects, 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 person or things to be seized." There is probable cause to search a home if there is a fair probability that evidence of a crime is located within the residence. See United States v. Murphy, 241 F.3d 447, 457 (6th Cir. 2001). Whether probable cause exists must be determined "under the totality of the circumstances." See Illinois v. Gates, 462 U.S. 213 (1983).
"[P]robable cause is a fluid concept - - turning on the assessment of probabilities in particular factual contexts - - not readily, or even usefully, reduced to a neat set of legal rules." Id. at 232.
In a review of an issued search warrant, "great deference" is given to the issuing judicial officer's probable cause determination. United States v. Blackwood, 913 F.2d139, 142 (4th Cir. 1990). The test on review is whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 728 (1984). To that end, the reviewing court does not conduct a de novo review but instead limits itself to the information presented to the magistrate who issued the warrant. Id. See also United States v. Wilhelm, 80 F. 3d. 116, 118 (4th Cir. 1996).
The determination of whether the Randolph County magistrate had probable cause to issue the warrant to search is made by answering the question: From a totality of the circumstances presented to the issuing judge, was there "a fair probability that contraband or evidence of a crime" would be found in the residence and attached building? Illinois v. Gates, Supra at 238.
Defendant moves to suppress the evidence because the affidavit in support of the first search warrant failed to provide a substantial basis for concluding that probable cause existed. Again, at the time the motion was filed, counsel was led to believe the search warrant affidavit consisted of one sentence, that the officer observed one marijuana plant in an open field back yard, and, based on that one plant, sought permission to search the residence for "any controlled substances, equipment to manufacture and deliver controlled substances." Of course, as already noted, the affidavit actually contained a second page on which Corporal Cross stated that upon approaching the residence he observed two more marijuana plants, both growing in pots. He also observed a 50-100 pound propane cylinder with a black hose connected to it, which ran through the side of and into an outbuilding. He also added the information regarding the other officer's report, including the C.I. information as stated above.
Great deference is given to Magistrate Elbon's determination that probable cause existed to issue the warrant. In this case the first affidavit clearly outlines that Cpl. Cross looked over from Paul Street and "almost did a double-take" when he saw a marijuana plant setting out in the open. The plant was "in plain view in the open field backyard of 225 Diamond Street." The grass in the area of the plant seems to be maintained. When Cpl. Cross approached the plant, consistent with his testimony and the exhibits, two smaller plants could be seen in the same area, both also in pots. Cpl. Cross tried, but was unable to make contact with the owner.
Defendant argues that the phrase "open field," used in the affidavit, is a legal term of art, with the connotation the plants were outside the curtilage of the residence. The undersigned, however, finds Cpl. Cross' testimony credible, that he used "open field" to mean what he could see in plain view. Further, the entire sentence states that he saw the plant "growing out of a 5 gallon bucket which was sitting in plain view in the open field backyard of 225 Diamond Street." This statement is consistent with Cpl. Cross' testimony regarding his definition of "open field." The undersigned finds the words "open field" are moderated by the term "backyard." Further, the plants were in buckets as described in the affidavit by Cpl. Cross, which would be inconsistent with the phrase "open field" as a term of legal art.
Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was "a fair probability that contraband or evidence of a crime" would be found in the residence and attached building.
A review of the second search warrant, which added only that upon executing the first warrant, the officers discovered an active meth lab, also provided probable cause for Magistrate Elbon to issue the second search warrant.
VII. Leon Exception
The Government argues that, even if the information in the affidavits were found to be insufficient for a finding of probable cause to issue the two search warrants, the evidence seized should not be suppressed pursuant to the "good faith exception" stated in U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 677 (1984). Defendant argues that Leon does not apply because the affidavits were so lacking in indicia of probable cause as to render official belief in its existence entirely unseasonable. Defendant argues that the first affidavit in particular is "bare bones," in which objective facts supporting a probable cause finding are completely lacking. He further argues that the case "involves minimal police investigation to corroborate unsubstantiated claims made by the police informant."
The exclusionary rule operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). In Leon, the Supreme Court explained the reason for rule:
First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.Leon at 915, 104 S. Ct. at 3417. Further:
If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.Id. at 918, 104 S. Ct. 3 at 3419. The Supreme Court concluded:
[T]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.Id. at 922, 104 S. Ct. at 3420. Therefore, the question of whether the good faith exception to the exclusionary rule should be applied to suppress evidence, depends on whether suppression of the evidence would have the desired effect of deterring police misconduct. In most cases, "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope . . . . there is no police illegality and thus nothing to deter." Id. at 920-21, 104 S. Ct. at 3419.
The Fourth Circuit followed the Supreme Court's line of reasoning in United States v. Lalor:
Under the good faith exception to the warrant requirement, evidence obtained from an invalidated search warrant will be suppressed only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.996 F.2d 1578 (4th Cir. 1993). Accord United States v. Bynum, 293 F.3d 192, 197-199 (4th Cir. 2002) (applying good faith exception where "affidavit contained sufficient indicia of probable cause so as not to render reliance on it totally unreasonable," reversing district court's suppression of evidence); and United States v. Cluchette, 24 F.3d 577 (4th Cir. 1994) (applying good faith exception to search warrant issued by state judge over telephone, declining to determine whether warrant was valid under state law.) In other words, the good faith exception applies unless "a reasonably well-trained officer . . . [should] have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23.
The Fourth Circuit has noted "four situations in which an officer's reliance on a search warrant would not be reasonable," and the good faith exception would therefore not apply:
(1) the magistrate was misled by information in an affidavit that the officer knew was false or would have known was false except for the officer's reckless disregard of the truth;United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995), quoting Leon, 468 U.S. at 923.
(2) the magistrate wholly abandoned his detached and neutral judicial role;
(3) the warrant was based on an affidavit that was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and
(4) the warrant was so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.
Defendants have not presented any evidence that the Randolph County magistrate "wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)." U.S. v. Leon, 468 U.S. 897. Regarding the actions of the Town Justice in Lo-Ji, the Supreme Court stated:
He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all "similar" items as well, leaving determination of what was "similar" to the officer's discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized.
Defendants have presented no evidence showing Magistrate Elbon acted in any way similarly to the judicial officer in Lo-Ji. The second exception to Leon, therefore, does not apply in the instant case.
The undersigned also finds the warrant was not so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers could not reasonably presume it to be valid.
Defendant's arguments are generally based on factors 1) and 3).
The undersigned has already found that Corporal Cross did not knowingly or with a reckless disregard for the truth misrepresent the facts (or, in this case, omit a fact) to mislead the magistrate.
Further, a review of the affidavit does not indicate it "was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." This is not a case of a "bare bones" affidavit, relying on anonymous informants.
A "bare bones" affidavit is one in which an affiant merely recites the conclusions of others - - usually a confidential informant - - without corroboration or independent investigation of the facts alleged . . . . However, a 'bare bones' affidavit is not one with weak inferences, but rather one without facts from which a judge can determine probable cause.United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996). Although the affidavits here did include information from a confidential informant, as already discussed, they contained much more. Corporal Cross himself discovered the three marijuana plants that were in pots in the area of Defendant's residence and outbuilding. He also noted the large propane cylinder with the black hose connected to it, running into an outbuilding. Finally, he did corroborate at least one piece of information provided by the C.I., who said Defendant burned a fire in a fire ring located between the trailer and the outbuilding. Corporal Cross stated in his affidavit that he viewed "said fire ring, located between the trailer and outbuilding."
For all the above reasons, the undersigned finds the officers' reliance on the search warrants issued by Magistrate Elbon was objectively reasonable. The good faith exception, therefore, renders the evidence seized in the search admissible, even if it were determined there was not probable cause to issue the search warrants.
VIII. Seizure of Controlled Substances
Defendant argues that if, as the undersigned posited on the record, the meth information was not good, but the observation of the marijuana was good enough for a search, the search warrant for "controlled substances" was too broad. First, the undersigned found there was probable cause, including the C.I. information regarding a possible meth lab, for the issuance of the search warrant. Only as an additional reason did the undersigned state that even if the meth information was removed from the affidavit, the observation of the marijuana plants growing in plain view would be enough to find probable cause for the search. Second, although the items to be seized must be described with particularity, the standard is "a pragmatic one: [t]he degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of item involved . . . ." United States v. Torch, 609 F.2d 1088 (4th Cir. 1979). Further, "a warrant authorizing a search for evidence relating to a specific illegal activity, such as narcotics . . . may be sufficiently particular." United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).
The undersigned therefore finds the warrant was not overly broad.
IX. Seizure of Firearms
Defendant further argues that neither warrant mentioned firearms, making the seizure of the firearms warrantless and therefore illegal. Under "property to be seized," the warrant states in particular only "[a]ny controlled substances, equipment to manufacture and deliver controlled substances." The Fourth Circuit has long held that "[g]uns are tools of the drug trade and are commonly recognized articles of narcotics paraphernalia." U.S. v. Ward, 171 F.3d 188 (4th Cir. 1999)(citing United States v. Ricks, 882 F.2d 885 (4th Cir. 1989); United States v. Soto, 959 F.2d 1181 (2d Cir. 1992). The Fourth Circuit recently decided the same issue, albeit in an unpublished decision, United States v. May, 446 Fed.Appx. 652 (4th Cir. 2011), stating:
Pursuant to FRAP 32.1(b), a copy of U.S. v. May is attached.
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May next argues that the firearms were improperly seized. He argues that because the warrant application only listed specific drugs, and items indicating the possession and sale of controlled substances, and did not specifically list firearms, the seizure of the firearms was outside the warrant's scope. We do not agree.Upon consideration of all which, the undersigned finds the seizure of the firearms was authorized by the search warrant application.
In United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999), we stated that "guns are tools of the drug trade and are commonly recognized articles of drug paraphernalia." Thus, under the plain language of the warrant application, the seizure of firearms was authorized.
RECOMMENDATION
For the reasons herein stated, it is RECOMMENDED that Defendants' Motion to Suppress Evidence [Docket Entry 16] and Motion to Suppress Evidence Pursuant to Franks v. Delaware [Docket Entry 17] both be DENIED.
Any party may, within fourteen (14) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable John Preston Bailey, Chief United States District Judge. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to direct this Report and Recommendation to counsel of record.
Respectfully submitted this 17th day of December, 2012.
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JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE