Opinion
Case Number 02-20043-BC
August 8, 2003
OPINION AND ORDER DENYING MOTION TO SUPPRESS EVIDENCE
The defendants, Armando Contreras and David Goward, are charged along with one other person in an indictment alleging various drug and weapons offenses. They each have filed motions to suppress the fruits of searches seized from various locations pursuant to search warrants issued by State magistrates. On May 13, 2003, the Court held a hearing in open court in the presence of the defendants on their motions. At that time, the Court inquired of defendant Armando Contreras if he was willing to waive oral argument on his motion in accordance with the wishes of his out-of-state attorney, Joseph Turner. After expressing concern that such a waiver would result in the denial of his motion due to his failure to address in his motion brief the argument that Contreras had a reasonable expectation of privacy in the residence searched, the Court concluded that the hearing on Mr. Contreras' motion would be adjourned pending a decision by Mr. Turner as to whether he would submit additional authority or seek a hearing on the motion.
The Court also entertained the arguments of the parties through their respective counsel with respect to the motion to suppress filed by defendant Goward, and heard the testimony of two witnesses produced by the government. The government stated in its motion response, and also acknowledged on the record, that it did not intend to introduce at trial any evidence obtained in the search of two of the three locations challenged by the defendants, that is from 1800 South River Road, Saginaw, Michigan, and 15558 Stuart, Cheasaning, Michigan. The Court, therefore, denied the defendants' motions as to those locations as moot, leaving the only point of contention the seizure of the items from 2225 Birch Run Road, Burt, Michigan. After the testimony had concluded, counsel for defendant Goward requested discovery as to the search warrants previously secured by the search warrant affiant in this case, and both parties requested an opportunity to submit supplemental memoranda. The Court then adjourned the hearing on defendant Contreras' motion and ordered him to notify the Court before May 22, 2003 if he desired further hearing. The Court also established deadlines for further filings by defendant Goward and the government. Those deadlines have elapsed. Defendant Contreras filed a supplemental motion to suppress evidence and attached an affidavit, but no additional filings have been received from the other parties, and defendant Contreras has not requested an additional hearing. The matter is now ready for decision.
I.
The investigation leading to the indictment in this case began after Bay Area Narcotics Enforcement Team (BAYANET) officer Scott Taylor of the Michigan State Police came into contact with Bob Novak, who agreed to be an informant on marijuana trafficking in the Northeast Michigan area. Novak informed Taylor that defendants Contreras and Goward were operating a marijuana distribution ring and that they had marijuana shipped into them by the truckload. After making separate undercover purchases of marijuana from both Contreras and Goward, the informant told Novak that the marijuana was delivered to Novak's place of business, that Contreras was in charge of unloading the marijuana when it arrived, and that Contreras and Goward would then divide it up among themselves for sale. Acting on a trip from Novak, officers observed Contreras arrive at Novak's business following a truck on August 22, 2002. The officers then arrested Contreras while he unloaded 22 bricks of marijuana, and also arrested the driver of the truck, co-defendant Chon Hinojosa.
These facts were substantially set forth in an affidavit for a search warrant to search Goward's residence at 2225 Birch Run Road, Burt, Michigan. The statements in the search warrant affidavit that refer specifically to that residence are as follows:
1. The PERSON, PLACE or THING to be searched is described as and located at:
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B. The entire premises and curtilage of 2225 Birch Run Road, Burt, Michigan, 48417.
The dwelling is more fully described as a two story, single family residence. It is wood frame constructed with grey siding and white trim. There are several outbuildings including barns and shed. The dwelling is located among farm fields. Search is to include all outbuildings and all containers located on the premises, including any vehicles located on the premises.
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3. The FACTS establishing probable cause or the grounds for the search are:
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H. [sic] Novak told me that Goward stays at 2225 Birch Run Road, Burt, Michigan. I independently confirmed through Secretary of State records that Goward lists 2225 Birch Run Road as his address. Novak also informed me that Goward and Contreras store money from the sales of marijuana as well as marijuana itself at 6150 Greenwood Road in Roscommon County. Novak said that Novak has personally been to the property on Greenwood Road with Contreras on previous occasions and seen ten to fifteen pounds of marijuana stored in the wellhouse on the property. Novak explained that Contreras and Goward hid money from the sales of marijuana in five gallon pails buried on the property. Novak said that Contreras purchased the property but that the property should be in Goward's sister's name. James Massey of the Saginaw County Prosecutor's Office checked with the Roscommon County Register of Deeds, and learned that the property at 6150 Greenwood Road is deeded to Lisa J. Espinoza, of 2225 Birch Run, Burt, Michigan, 48417. This is the same address the Secretary of State has for Goward.
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M. I also know, based on my training and experience that persons involved in the sale or distribution of controlled substances now routinely keep the proceeds and records of that activity in places other than their main sales location to keep such items safe from police raids.
Aff. For Search Warrant at 1, 4-5.
A State district court judge issued a warrant for the search. Warrants were also sought for another residence of Goward at "1500" (actually 15558) Stuart Road, Chesaning, Michigan; for 18303 West Marion Road, Brant, Michigan; 1800 South River Road, Saginaw, Michigan; and for the search of the residence of Contreras' "sister" at 6415 Sheridan, Saginaw, Michigan. Several items were seized as a result of the searches authorized. As a basis for the search of the Sheridan residence, the affidavit by officer Margo Anderson alleges that Goward's residence was searched and found to contain marijuana, currency, firearms, and records; the statement of the informant, Novak, that Contreras keeps his assets in the name of his "sister" and that the motorcycle Contreras drove to distribute marijuana was entitled to his "sister" Alicia Erickson, who lives at 6415 Sheridan; and that drug traffickers normally keep drugs, currency, records, and other items of note in their control.
At the evidentiary hearing, Michigan State Police trooper Scott Taylor testified that he was the affiant for the warrant to search the 2225 Birch Run Road residence, that the affidavit was drafted by an assistant state prosecuting attorney, and that the search warrant was signed by a state magistrate. Taylor stated that he had participated in the execution of over one hundred search warrants in his eighteen months as a BAYANET officer, five of which were procured where the sole nexus to the residence was that a known drug dealer lived there. He could not provide the name of any such case, however.
Richard Mainprize, a Michigan State Police detective, testified that he had been assigned to the BAYANET unit for ten years. He participated in the execution of the search warrant at 2225 Birch Run Road. He was familiar with the affidavit procured in this case, and he said that he had been involved in procuring over 200 such affidavits in Saginaw County. The fact pattern described in the affidavit in this case, he said, was a common one and familiar to him.
After the hearing concluded, defendant Contreras submitted an affidavit with his supplemental motion, in which he avers that he gave a letter to his mother, Alicia Erickson, and that "[w]ith a reasonable expectation of privacy, she put it away in her safe." Aff. of Armando Contreras. There is no evidence on this record as to the location of the safe, although Contreras argues in his brief that a safe was located in his mother's home, and he seeks to suppress the evidence seized from 6415 Sheridan Road.
II.
The Fourth Amendment to the United States Constitution ensures that "[t]he 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 persons or things to be seized." The Supreme Court has recognized that these rights are personal to each citizen, and may not be vicariously asserted on behalf of others. Alderman v. United States, 394 U.S. 165, 174 (1969). Thus, defendants ordinarily cannot challenge the search of a colleague's or relative's residence or vehicles in which they have no interest, even though the search may have lacked probable cause and secured incriminating evidence. Rakas v. Illinois, 439 U.S. 128, 134 (1978); see also United States v. Padilla, 508 U.S. 77, 82 (1993) (finding no co-conspirator exception to the "personal right" rule akin to that for admission of hearsay statements).
Of course, this restriction does not apply when the defendant has a reasonable expectation of privacy in the other residence searched. Rakas, 439 U.S. at 142. The defendant has the burden of demonstrating such an interest in the property of another. United States v. Smith, 263 F.3d 571, 582 (6th Cir. 2001). As suggested by the phrase "reasonable expectation," the defendant must both have a subjective expectation of privacy in the location, and his interest must be one that society recognizes as legitimate, either due to traditional concepts of property law "or to understandings that are recognized and permitted by society." Ibid (quoting Rakas, 439 U.S. at 143 n. 12). Such an interest will usually be found where the defendant and the owner or manager of the residence have a preexisting personal (as opposed to business) relationship and the defendant has a right of access to that residence. See, e.g., Jones v. United States, 362 U.S. 257, 259, 265 (1960) (finding standing to exist where the defendant was in the apartment with permission of the owner, slept there occasionally, possessed a key, and kept a change of clothes within); United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir. 2000) (finding standing where the defendant had been friends with the lessee for seven years, spent the night occasionally, left clothes there, ate meals therein, and could stay there when the lessee was away); Minnesota v. Carter, 525 U.S. 83, 90-91 (1998) (finding no standing where the defendants were not overnight guests, and merely visited the premises to conduct illegal business). See also United States v. Delgado, 121 F. Supp.2d 631, 639 (E.D.Mich. 2000).
With these principles in mind, defendant Contreras' motion is easily dispatched: he has not demonstrated any interest, much less a reasonable expectation of privacy, in 6415 Sheridan Road. He does not allege that he had an ownership interest in the premises, or that he lived there, or even that he occasionally stayed there. He does contend that he gave a letter to his mother to be kept in a safe, but that fact alone will not create the necessary interest in premises — an entire house — that society would recognize as reasonable. See United States v. King, 55 F.3d 1193, 1195-96 (6th Cir. 1995). The Court agrees with the government's argument that defendant Contreras lacks standing to challenge the search of 6415 Sheridan Road, and his motion to suppress the evidence discovered there will be denied.
III.
Turning next to defendant Goward's motion to suppress evidence seized from 2225 Birch Road, the validity of the search warrant presents the following question: whether an affidavit containing credible, verified allegations of wrongdoing, verification that said defendant lives at a particular residence, and absolutely no indication of any wrongdoing occurring at that residence, without more, establishes probable cause for the issuance of a warrant to search that residence. Although the Court would independently determine otherwise, the Court believes that binding Sixth Circuit precedent commands an affirmative answer.
Pursuant to the Fourth Amendment, applicable to the States as incorporated into the Fourteenth Amendment, no warrants shall be issued without probable cause. U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 654-55 (1961). The test for probable cause calls for an assessment of whether there is "a `fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991) (quoting United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985)). A magistrate properly reaches this conclusion only when the warrant affidavit sets forth sufficient facts that provide a "substantial basis" for concluding that "a search would uncover evidence of wrongdoing." United States v. Sonagere, 30 F.3d 51, 53 (6th Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). As the Sixth Circuit has explained, the concept of probable cause is not easily reducible to a simple formula:
Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion, that there is a fair probability that contraband or evidence of a crime will be found in a particular place. This determination does not lend itself to the application of rigid legal rules. . . . Rather, the probable cause standard is a practical non-technical conception wherein we deal with probabilities which are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Stated otherwise, probable 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.United States v. King, 227 F.3d 732, 739 (6th Cir. 2000) (citations omitted). To encourage law enforcement officers to seek warrants, the Supreme Court has counseled that in close calls, doubtful warrants should be upheld. Gates, 462 U.S. at 237 n. 10.
The government has cited several cases in support of its argument that evidence of involvement in transacting in illegal drugs alone supports the search of a subject's residence, but a careful reading of that authority discloses that other facts were present, which allowed the magistrate to draw an inference that evidence or contraband would be found at that particular place. For instance, in United States v. Martin, 920 F.2d 393 (6th Cir. 1990), the Sixth Circuit upheld the search of the defendant's residence where there was evidence that he had sold an ounce of cocaine to an informant, and the sale took place "very near the residence." Id. at 399. The Court noted that the affiant:
stated in his affidavit that in his experience a person engaged in the distribution of cocaine frequently keeps at his residence a number of different items, which items were then set forth in detail in the affidavit. Martin makes no attack on agent Merryman's experience or his conclusions relative to what cocaine dealers keep around. Although it is true that this list of items is exhaustive, this is because the investigative agencies have learned through experience that the courts (not to mention the Constitution) are going to require them to be very specific. The items listed in the search warrant here are similar to those we see listed in most search warrant affidavits seeking evidence related to narcotic offenses. A search of the residence was further justified by the fact that one of the narcotics sales took place very near the residence and the confidential informant had been inside the residence and provided some information as to what was kept there.Ibid.(emphasis added; footnotes omitted). Thus, while the Martin court suggests that the agent's "knowledge" and "experience" were sufficient to secure the search warrant, it nonetheless had additional evidence before it that "incriminated" the actual place to be searched.
In United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991), the defendant insisted that despite a prior conviction for drug trafficking and surveillance indicating his continued association with known drug dealers, there was no basis for a warrant to issue for the search of his home. The Court rejected the notion that the police were first required actually to "observe drugs or evidence going into or out of his apartment," noting "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Id. (quoting Gates, 462 U.S. at 244 n. 13). Probable cause existed because in addition to the prior conviction and surveillance results, the defendant was driving a vehicle registered to a suspected drug trafficker, was using public telephones when associating with drug traffickers, and the defendant met with suspected traffickers on two occasions in his home and discussed issues relating to drugs shortly after their departure. Thus, there was some evidence connecting the illegal drug activity to the location to be searched.
Likewise, in United States v. Jones, 159 F.3d 969, 973-74 (6th Cir. 1998), the court found the affidavit to be sufficient where the defendant had sold drugs to an informant, drug transactions were both overheard and observed taking place on the defendant's property outside of his residence, even though no evidence indicated that any activity actually occurred inside the defendant's residence, and the affiant claimed that through knowledge and experience, he could expect to find drug-related materials inside. In United States v. Blair, 214 F.3d 690, 696 (6th Cir. 2000), a federal agent obtained a warrant to search the defendants' residence for records of money laundering upon a showing that the defendants were operating a prostitution ring, they sold narcotics to the prostitutes and their customers, one of the defendants was listed under a false name as a subscriber for electric service for the prostitution houses, that defendant had filed income tax returns using that same false name, and the officer affiant had stated that in his professional opinion, drug dealers usually keep such financial records and other essential materials at their homes.
The government also points to this Court's prior decision in United States v. Yates, 132 F. Supp.2d 559 (E.D.Mich. 2001), to support its argument. But in that case, although the search warrant affiant stated that drug traffickers usually store records and other materials at their residences, there also was evidence that the defendant made telephone calls from his home to set up drug deals, and the object of the search was records of those drug transactions.
The Sixth Circuit has held that evidence of involvement in drug trafficking does not automatically establish probable cause to search any location connected with the wrongdoer. See United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994). In that case, the officer sought warrants for both a safe deposit box and an apartment. Although sufficient evidence existed to search the apartment given the number of phone calls placed to others from the apartment to facilitate drug sales, the safe deposit boxes were viewed differently:
Officer Ideker had not made any material connection between the bank and any criminal activity. Star Bank employees did not report any illegal activities related to either the loan or the safe deposit boxes, and Ideker had no other information connecting them to any illegal activity. In his affidavit for the first warrant, the only connection Ideker made was that, "Based on his training and experience, [he] believe[d] . . . that it is not uncommon for the records, etc. of such [drug] distribution to be maintained in bank safe deposit boxes."
While an officer's "training and experience" may be considered in determining probable cause, see, e.g., Texas v. Brown, 460 U.S. 730, 742-43 (1983); U.S. v. Martin, 920 F.2d 393, 399 (6th Cir. 1990), it cannot substitute for the lack of evidentiary nexus in this case, prior to the search, between the safe deposit boxes and any criminal activity. Officer Ideker did not have anything more than a guess that contraband or evidence of a crime would be found in the boxes, and therefore the first warrant should not have been issued. To find otherwise would be to invite general warrants authorizing searches of any property owned, rented, or otherwise used by a criminal suspect — just the type of broad warrant the Fourth Amendment was designed to foreclose.Id. at 1097-98.
That analysis, I believe, would apply with equal force here. There is no suggestion in the search warrant affidavit that drug activity may have occurred in, at or around the residence at 2225 Birch Run Road. There is not even a statement that, in the affiant's experience, "evidence is likely to be found where the dealers live," a line occasionally quoted in Sixth Circuit opinions, which is traced originally to the Ninth Circuit case of United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). The closest such assertion is found at Paragraph 3(M) of the affidavit, where the affiant states that he knows that drug dealers "routinely keep the proceeds and records of that activity in places other than their main sales location." Taken to its logical conclusion, that statement would justify the search of any location (other than the "main sales location") connected to the target, which is precisely the type of general warrant condemned by the court in Schultz.
However, the issue presented here, as described earlier, was recently decided by the Sixth Circuit in United States v. Miggins, 302 F.3d 384 (6th Cir. 2002), another case cited by the government. According to the facts reported in that case, a warrant was obtained to search the defendant's apartment on the basis that he previously had been convicted of narcotics offenses, he was involved in a large drug transaction set to occur at one location, and he resided at the apartment in question some distance away. The district court held that there was insufficient probable cause to issue the search warrant, although the search was upheld on the basis of the "good faith" exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). See Miggins, 302 F.3d at 388. The court of appeals held that the district erred in finding a lack of probable cause. Id. at 393. Although the court did not engage in any extensive analysis of the issue, it cited several cases from other circuits in support of its conclusion, including United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999), which, according to the Sixth Circuit, held that "it was reasonable to suppose that drug dealer stored evidence of dealing at home, even though no drug trafficking was observed to occur there," Miggins, 302 F.3d at 394; and United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam), described as holding "that observations of drug trafficking away from dealer's residence can provide probable cause to search the dealer's house." Miggins, 302 F.3d at 394. The court of appeals' adoption of these holdings leads to the conclusion that the court found that trafficking in drugs established a sufficient nexus to support a finding of probable cause to search the place where the drug trafficker presently lives.
The affidavit challenged in this case establishes that much: it provides evidence that Goward was involved in a marijuana smuggling operation along with Contreras, and that Goward lived at 2225 Birch Run Road. It is not clear to the Court that the rule stated in Miggins can be reconciled with the earlier pronouncement in Schultz. Certainly, one court of appeals panel cannot overrule an earlier panel decision. United States v. Dunlap, 209 F.3d 472, 481 (6th Cir. 2000). The present case is closer factually to Miggins, so if there is a point of distinction, that is where it would lie. However, according to Miggins, which is binding precedent on this Court, the affidavit contained sufficient facts to establish probable cause to search 2225 Birch Run Road. The Court, therefore, is constrained to agree with the government that the seizure of the items from that location was lawful, and that the Goward's motion must be denied.
IV.
Defendant Contreras has not shown that he had a reasonable expectation of privacy in the residence located at 6415 Sheridan Road. Defendant Goward has not demonstrated that the affidavit in support of the warrant to search 2225 Birch Run Road is defective.
Accordingly, it is ORDERED that the motion to suppress evidence filed by defendant Contreras [dkt #48] is DENIED.
It is further ORDERED that the motion to suppress evidence filed by defendant Goward [dkt #52] is DENIED.