Opinion
Case No. 01-40023-01
July 11, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motions to Suppress (Docs. 34, 32). The government has filed a Consolidated Response (Doc. 40). On Monday July 2, 2001, the court held an evidentiary hearing concerning defendant's motions. After due consideration of the parties' filings and the evidence introduced at the hearing, defendant's motions are denied.
PROCEDURAL BACKGROUND
On March 1, 1998, the grand jury returned a two count indictment against defendant. Count one charges that on or about March 19, 2001, defendant did knowingly and intentionally possess with the intent to distribute approximately 1052 grams of a mixture or substance containing a detectable quantity of cocaine base, commonly known as crack cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1).
Count two charges that on or about March 19, 2001, defendant did knowingly and intentionally possess a firearm during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, to wit: possession with intent to distribute a mixture or substance containing a detectable quantity of cocaine base, in violation of 18 U.S.C. § 924(c)(1)(A).
FACTUAL BACKGROUND
Defendant presents two interrelated motions to suppress. Both motions flow out of a single encounter with law enforcement officers. To understand the facts surrounding defendant's arguments requires a brief discussion of related events.
On August 17, 2000, a search warrant was executed on the Riley County, Kansas, residence of James and Ola Mae Campbell. The search produced a large quantity of illegal drugs and currency.
In October 2001, Pottawatomie County and Wamego, Kansas, police detectives were involved in an investigation concerning the distribution of controlled substances. Two targets of the investigation resided in Wamego, Kansas. Detectives received information that these individuals were using illegal narcotics at a Wamego residence located at 1413 Vine Street. Records revealed defendant resided at 1413 Vine Street.
On February 21, 2001, a search warrant was executed on the Riley County residence of Jesse and Lauren Jackson. The search produced a large quantity of illegal drugs and currency. Also found at the residence was a video tape in a video recorder. The tape revealed Mr. Jackson and an unidentified black male riding in a custom limousine.
On March 19, 2001, Detectives Schuck and Fink of the Riley County Police Department located defendant driving a white Ford Excursion in Manhattan, Kansas. A check through Riley County dispatch revealed defendant had a current arrest warrant through Manhattan Municipal Court. The detectives stopped defendant and placed him under arrest. A search of defendant's person and interior of the vehicle produced approximately sixty grams of crack cocaine, sixty grams of marijuana, $5,656 in cash, three cellular phones, and a pager. Additionally, the detectives recognized defendant as the previously unidentified individual accompanying Mr. Jackson in the limousine.
Several documents were also seized from the vehicle. First, a receipt from City of Lights Limousine Company was found. The receipt revealed that on February 12, 2001, defendant paid $2,130 in cash for a custom limousine to pick him up at 1413 Vine Street, Wamego, Kansas, and then transport him to Kansas City. Second, seized documents revealed that on December 4, 2001, defendant purchased a 2000 Ford Excursion for $29,035.23 from Olathe Ford Sales. The sales receipts revealed defendant traded in a Ford Expedition worth $14,495 and paid the remaining balance of $14,540.23 in cash. Third, a document from HB Stereo was seized, which detailed the installation of electronics into a vehicle valued at $4,517.24.
Defendant was also found in possession of numerous names and telephone numbers. There were also numerous names and numbers stored in his cellular phones. The number of James Campbell was allegedly located in one of his cellular phone as well as on a worn scrap of paper found in the console of the vehicle.
After defendant was arrested, he was eventually transported to the Riley County jail. While in custody, defendant was questioned by Sergeant French of the Riley County Police Department. Defendant made several incriminating statements to Sergeant French.
All of the above information was placed into an affidavit prepared by Detective Fink. Detective Fink also included that at the time of defendant's arrest, the crack cocaine seized was moist and resembled a square form, indicative of recent manufacturing. A warrant was subsequently issued for defendant's residence at 1413 Vine Street. The search subsequently produced a large quantity of illegal drugs, currency, and firearms.
Defendant's motions request suppression of his incriminating statements made to Sergeant French, and defendant seeks suppression of the evidence seized from his residence pursuant to the warrant.
III. DISCUSSION
A. Motion to Suppress Statements (Doc. 34)
Defendant seeks suppression by claiming he was not properly advised of his Miranda rights before Sergeant French began his custodial interrogation. At the evidentiary hearing, however, Sergeant French testified to the contrary: indicating he specifically advised defendant of his rights, including his right to remain silent, prior to beginning his interrogation of defendant. The burden is on the government to prove, in light of the totality of the circumstances, that law enforcement officers properly advised defendant of his rights and that he made a knowing and voluntary waiver. See Moran v. Burbine, 475 U.S. 412, 420-21 (1986); Miranda, 384 U.S. at 475.
Miranda v. Arizona, 384 U.S. 436 (1966) holds that the prosecution may not use statements stemming from the custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
During the hearing, defense counsel thoroughly subjected Sergeant French to cross-examination. Counsel was critical in his questioning of why no recording, notes, or written waiver was produced in relation to defendant's interrogation. While the court acknowledges the better police procedure would be to have suspects sign a waiver before interrogations begin, the absence of a signed waiver or acknowledgment is not fatal to this determination. In weighing the testimony of Sergeant French, the court finds Sergeant French's recollection to be credible. The court is persuaded, therefore, contrary to defendant's assertion, that defendant was properly advised of his right against self-incrimination in accordance with Miranda.
In his papers to the court, defendant limits his argument only to the above issue of whether or not defendant was advised of his rights. During the hearing, however, Sergeant French also credibly testified that defendant voluntarily waived his rights. Nothing has been presented to the court, which would indicate in any manner that defendant's statements were the product of intimidation, force, or coercion. Having found that defendant was properly advised of his rights and voluntarily waived such rights, the court is compelled to deny defendant's motion to suppress.
Motion to Suppress Evidence (Doc.32)
Defendant's argument for suppression is centered on the sufficiency of the affidavit used in applying for the Vine Street search warrant. Defendant asserts Detective Fink's affidavit contains false statements. In particular, defendant argues the affidavit claims a receipt from HB Stereo shows defendant paid $4,517.24 for the installation of electronic equipment. Defendant asserts the "receipt" is merely a written estimate and does not indicate defendant paid any money for the equipment or installation. As such, defendant argues the affidavit contains a false and misleading statement.
Second, defendant asserts he does not know James Campbell. Defendant argues he has never willfully possessed Mr. Campbell's phone number, and if the number appeared on his cellular phone, he has no knowledge of how the number was placed in his phone's memory. Defendant claims "[h]e does not know James Campbell, and the police knew that." (Def. Mem. at 3). Therefore, defendant asserts Detective Fink made the allegedly false statement with the intent to mislead the issuing judge.
In sum, defendant asserts both pieces of information must be removed from the affidavit, and after doing so, the affidavit lacks sufficient evidence to support the issuing judge's determination of probable cause.
Under Franks v. Delaware, 438 U.S. 154 (1978), if a defendant establishes that a police officer made false statements in an affidavit supporting a search warrant knowingly or with reckless disregard for the truth, and that the false statements were necessary to the finding of probable cause, the evidence seized during the resultant search must be excluded. 438 U.S. at 155-56. Allegations of negligence or innocent mistake, however, are insufficient. Id. at 171. The court must, therefore, consider not only the actions of Detective Fink, but also the impact the allegedly false statements had in the probable cause determination.
Officer's Mens Rea
The facts as developed at the hearing do not reveal on the part of Detective Fink any indication of a deliberate or reckless state of mind. As for the HB Stereo "estimate," the court notes that the word "invoice" is printed on the top of the document, yet nowhere on the document does the word "estimate" appear. Assuming, arguendo, that the document is merely an estimate, it could easily be misidentified as a receipt for services rendered. Any such misidentification is, at best, indicative of Detective Fink's negligence or innocent mistake.
Second, as for the phone number of James Campbell, Detective Fink testified that the scrap of paper containing the phone number was lost prior to the hearing. Additionally, the cell phone in which the number was allegedly stored in has since gone "dead," making the phone's memory inaccessible. Finally, both Detective Fink and Schuck testified that it was entirely possible the phone number in question may have actually belonged to a Jeanette Campbell, an individual unknown to law enforcement officials. Certainly, the information in the affidavit regarding James Campbell can not now be confirmed, nor can anyone involved in the incident testify with complete certainty to the information's accuracy. However, the court finds that both Detective Fink and Schuck testified credibly to their honest intentions in including such information in the affidavit. Again, if the information was incorrect, such inaccuracy is a reflection of the detectives' negligence.
Impact on Probable Cause
As to the second consideration, i.e., the impact of the allegedly false statements, defendant's arguments are without merit. Even after excising the statements in question, the affidavit is replete with numerous facts indicating defendant's association with the distribution of illegal narcotics and supports the issuing judge's finding of probable cause. "In determining whether probable cause exists to issue a warrant, the issuing judge must decide whether, given the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998) (quoting United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir. 1995)). "And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal citation and quotation marks omitted).
First, defendant was discovered in possession of approximately 120 grams of illegal drugs and over five thousand dollars in cash. Standing alone, such evidence may have been sufficient to establish defendant as a drug trafficker and support a probable belief that his residence contained fruits of such trafficking. See United States v. Kalinich, No. 01-40009, 2001 WL 709537, at *4 (D.Kan. June 19, 2001) (citing United States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999); United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994); United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986)). However, the affidavit continues and details several large cash disbursements made by defendant. Such evidence is probative considering defendant alleged to be an unemployed student attending a local community college. Next, the affidavit indicates defendant's association with an individual, besides Mr. Campbell, identified as most likely involved in the illegal trafficking of narcotics. Based on his training and experience, Detective Fink also informed the issuing judge that the crack cocaine in defendant's possession was freshly manufactured. It is a reasonable inference that such cocaine was manufactured at defendant's residence. See United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999) (noting issuing judge may make reasonable inferences from facts presented in the affidavit). The affidavit also includes information from a second investigation, which identified defendant's residence as involved in the use of illegal drugs. Finally, the affidavit contains defendant's own statements directly implicating him in the distribution of crack cocaine. Viewed in the totality, the court finds the affidavit, minus the allegedly false statements, supplied the issuing judge with a substantial basis for a finding of probable cause.
Defendant incorporates his previous arguments regarding the solicitation of his incriminating statements. Considering the court's rejection of defendant's argument that his statements were made in violation of Miranda, defendant's arguments are also found to be without merit in relation to the affidavit.
In sum, defendant is unable to establish Detective Fink knowingly made false statements, and defendant is also unable to demonstrate that such statements, even if made with the required state of mind, were critical to a determination of probable cause. Having failed to make the necessary showing as to either element under Franks, the court is compelled to deny defendant's request for suppression.
Good-faith Exception
In the alternative, even if the affidavit failed to provide a substantial basis for a finding of probable cause, the warrant is saved by the "good-faith exception" of United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court held that the Fourth Amendment's exclusionary rule should not bar the use of evidence obtained by police officers acting in good-faith and with reasonable reliance on a facially valid search warrant. 468 U.S. at 919-20. "[W]hen reviewing an officer's reliance upon a warrant, we must determine whether the underlying documents are `devoid of factual support, not merely whether the facts they contain are legally sufficient.'" United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)). The good-faith exception, however, is not without its limits:
The Supreme Court recognizes four situations in which an officer would not have reasonable ground for believing a warrant was properly issued. In these situations, the good-faith exception to the exclusionary rule would not apply. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth. Second, the exception does not apply when the issuing magistrate wholly abandons her judicial role. Third, the good-faith exception does not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (internal citation and quotation marks omitted). Defendant asserts Detective Fink's affidavit included false information that misled the issuing judge, so removing the resulting warrant from the purview of the good-faith exception. As discussed above, however, the allegedly false statements were not included in an effort to deceive or with a reckless disregard for the truth. Therefore, the good-faith exception is applicable.
CONCLUSION
Having considered all of defendant's arguments in favor of suppression and finding them all lacking in merit, the court denies defendant's requests.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion to Suppress Statements (Doc. 34) and defendant's Motion to Suppress Evidence (Doc. 32) are denied.