Opinion
No. 1:03-CR-073
June 27, 2003
MEMORANDUM AND ORDER
On June 20, 2003, this case came before the Court on the following motions filed by defendant William Curtis, Jr. ("Curtis"):
(1) Motion to suppress search of vehicle [Court File No. 101];
(2) Motion to suppress evidence from the defendant's home [Court File No. 103].
The Court received testimony from various witnesses, and makes the findings of fact and conclusions of law set forth hereinafter.
On February 24, 2003, local and state drug task force officers obtained a federal search warrant for the premises of Patrick and Patricia McCurry in Cleveland, Tennessee. On March 1, 2003, a confidential informant was told by Patricia McCurry on the telephone that her source for methamphetamine was then at her home; whereupon the task force immediately executed the warrant. When the officers entered the home, they found and detained Patricia McCurry, Patrick McCurry, William Curtis, Jr., and two others. Upon searching the house, the officers found methamphetamine wrapped in a diaper; and another bag of suspected methamphetamine wrapped in child's undergarments. The occupants of the house were then taken into custody. Patricia McCurry told task force officers that William Curtis, Jr. had supplied the methamphetamine, and that a green Nissan Pathfinder SUV parked in the yard, belonged to defendant Curtis. The keys to the Pathfinder were found on Curtis' person, and when the officers "ran" the vehicle tag over the radio, it came back as registered to Mr. Curtis.
Although the search warrant did not specifically authorize the search of vehicles on the property, the officers went to the Pathfinder and looked inside. Through the windows they observed another diaper (like the one inside the house) and some ziplock baggies. By this time Officer Gary Bowman had arrived with his drug detection dog, "Deke." Bowman and Deke are fully certified by the National Narcotic Detector Dog Association, Inc. Deke is the most experienced of three dogs owned by the Cleveland, Tennessee Police Department. Bowman walked Deke around the Pathfinder, and the dog alerted to the driver's door area. Task force officers then searched the Pathfinder, finding the items that they had previously observed plus a loaded .380 caliber semi-automatic pistol.
Later that evening, Cleveland, Tennessee Police Department Detective Duff Brumley, after executing another search warrant, went with an additional officer to defendant Curtis' residence on Straw Hill Church Road, a rural area in Cleveland. By this time it was approximately 1:00 a.m. on March 2, 2003. There was light on inside the house, and the officers knocked on the front door. Getting no answer, Brumley proceeded to cross a part of the lawn and around the house to the back door. He was required to use a flashlight. When Brumley approached the back door, he observed glass jars attached to hoses and a gallon of camping fuel. He knew from his experience that this was a part of a methamphetamine laboratory. Brumley and the other officer then exited the property and went to obtain a search warrant. Some 30 minutes later Brumley executed an affidavit for a search warrant for Curtis' residence before a state judge. In the application for the warrant, Brumley recited some of what he and the other officers had learned at the McCurry residence as follows:
During the investigation that led up to the seizure of one pound of methamphetamine, Patricia McCurry advised a confidential source that a quantity of methamphetamine had been delivered to her residence, and that the supplier was still present. At this time, a search warrant, issued by United States Magistrate Judge Bill Carter, was executed at the McCurry residence, and present was Bill Curtis, Jr. During interviews that followed, Patricia McCurry and others present at the location advised Bill Curtis, Jr. had arrived with the methamphetamine law enforcement personnel had located during the search.
Brumley also recited the recent events at Curtis' home in part as follows:
After several attempts by Special Agent Freeman and Agent Frost to make contact with someone at the front door, Detective Jenkins and your afiant walked to the rear of the residence to knock on the back door in an attempt to make contact with any parties that have been inside the house. As Detective Jenkins and your afiant approached the back door of the house, two glass jars were observed sitting amongst several mason jars. Both the jars had pieces of plastic hosing attached to them. Through training and experience, your afiant is familiar that methamphetamine "cooks" in fashion gas jars and containers in this manner in order to "gas off" in one of the final process (sic) of methamphetamine manufacturing. A gallon size camping fuel container was also located amongst the mason jars. Through training and experience, your afiant knows this to be a necessary catalyst precursor in methamphetamine manufacturing.
The state judge issued the warrant, and upon its execution officers found, in and around the Curtis residence, a considerable number of items connected with the manufacture of methamphetamine.
I. Search of the Vehicle
The defendant contends that the search of his 1996 Nissan Pathfinder ("the Pathfinder") violated his rights under the Fourth Amendment. Specifically, Curtis argues that items obtained during the search of the vehicle should be suppressed because the search was without a warrant or consent, and the police lacked probable cause. The government responds that the search of Curtis's car was performed only after the police were informed that the McCurry's supplier was on the premises, the police had located drugs and the defendant at the McCurry house, Patricia McCurry identified the defendant as the supplier and the Pathfinder as his car, the keys to the Pathfinder were found on the defendant, an officer observed through the vehicle window a diaper and baggies similar to those found concealing the drugs inside the house, and a dog sniff was performed in which the dog alerted on the vehicle.
A K-9 team consisting of Officer Bowman and his dog, Deke, arrived at the McCurry residence shortly after the officers began to execute the search warrant. Officer Bowman lead Deke around each of the cars parked on the McCurry's property. Deke alerted on the driver's side door of the defendant's Pathfinder.
A canine sniff is not a search, and does not thereby activate Fourth Amendment protections. United States v. Place, 462 U.S. 696, 707 (1983); United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998). Of course there is a requirement that a canine team be lawfully present at the location of the sniff. Reed, 141 F.3d at 650. The defendant has not argued that the officers and Deke were not lawfully present on the McCurry's property to execute the search warrant. Once the canine sniff took place, and the location of the drugs was identified, the officers had probable cause to search the Pathfinder. See United States v. Hill, 195 F.3d 258, 273 (6th Cir. 1999); United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994). This Court specifically finds, based on the testimony of Officer Bowman, that "Deke," the dog used here, was properly trained and reliable. Here, of course, the officers had information about Curtis and his vehicle, in addition to the dog sniff, which itself would have given them probable cause to search the vehicle.
The government also correctly notes that even absent the probable cause created by Deke's alert on the vehicle, the defendant's Pathfinder could have been searched pursuant to an inventory search. The defendant was arrested at the scene based on the presence of methamphetamine in the house and the statements of Patricia McCurry. The government represents that it is the policy of the 10th Judicial District Drug Task Force to seize and impound vehicles for the purpose of seeking forfeiture in cases of arrests for drug distribution. The search would therefore also be proper pursuant to an inventory search and the fruits of the search would be admissible. Florida v. Wells, 495 U.S. 1, 4 (1990); Unites States v. Lumpkin, 159 F.3d 983 (6th Cir. 1998). The items found in the Pathfinder would have been detected in "an inventory search that would inevitably follow the seizure of the car." United States v. Kennedy, 61 F.3d 494, 498 (6th Cir. 1995). Therefore the Court will not suppress the items found in the defendant's vehicle.
II. Search of the Residence
A. The Backyard
The defendant contends that items obtained in the search of Curtis's home must be suppressed because the information contained in the affidavit used to obtain the search warrant was procured during an illegal search of the defendant's back yard. The Supreme Court has explained that the following factors are to be considered when determining whether a particular area constitutes part of the curtilage and falls within the protection of the Fourth Amendment: "(1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing." United States v. Dunn, 480 U.S. 294 (1987). Applying these factors the Sixth Circuit has twice held that the backyard is a constitutionally protected area. Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir. 1998); United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997). In Jenkins, the Sixth Circuit found the backyard of a home in a rural area fell within the curtilage where the yard was immediately accessible from the home, enclosed by a fence on three sides, used for gardening and hanging laundry, and the house shielded the yard from observation. Jenkins, 124 F.3d at 773. In Daughenbaugh, the Sixth Circuit simply noted that natural boundaries and the location of the house prevented a backyard from being viewed by a neighbor or passerby, when holding that the officers made the "incriminating observations of the unattached garage while standing in a constitutionally protected area — the backyard." Daughenbaugh, 150 F.3d at 596, 601-602.
In this case, Curtis's backyard is located immediately behind the house and the property is located in a rural area. The officer visited the home at 1:00 am, knocked on the front door and when he received no answer, proceeded around to the back of the house, entering the backyard from which he was able to recognize materials used to manufacture methamphetamine located in a covered area beside the back door. It appears from the photographs in evidence that at least on one side, and possibly on all sides, the boundaries of the defendant's property are marked by a low fence comprised of posts connected by wire. [Defendant's Exh. 3, Government's Exh. 4, 5, 6]. The parties have not discussed the uses of the backyard prior to Curtis's arrest, however, the Court recognizes that persons typically use the area immediately adjacent to the home as an extension of the home. The defendant's backyard is not visible to a person passing by the house on Strawhill Church Road, because the house obstructs any view from the street.
The parties have explained that the swimming pool that appears in the photograph exhibits was installed after the events referred to in this memorandum.
The government urges the Court to rely on a decision by the Seventh Circuit which held that "public drives, sidewalks, or walkways (even those which lead to a rear side door) are not within the curtilage of the home when they are not enclosed by a gate or fence." United States v. French, 291 F.3d 945, 953 (7th Cir. 2002). Unlike the situation in the French case, however, the government does not contend that the officer followed a path or walkway when he went to the back of Curtis's house. Although the defendant's driveway extends for a short distance beyond the house, a view from the driveway would not have afforded the officer the vantage point necessary to observe the items located in the recessed area beside the back door. Following the Sixth Circuit's Daughenbaugh and Jenkins decisions, the Court finds that Officer Brumley's description of items he observed in the backyard was improperly included in the search warrant affidavit for Curtis's house because the observation was made from a constitutionally protected area.
B. Probable Cause
The government argues that the Court should find that the affidavit was sufficient to show probable cause absent Officer Brumley's observations from the backyard. The only other substantive statement in the affidavit in support of a finding of probable cause to search Curtis's home is the recitation of the events of that morning. Officer Brumley stated that methamphetamine was found at the McCurry home, Curtis was at the McCurry home, and Patricia McCurry had advised the officers that Curtis had brought the drugs that the officers had located in the search. The government relies on a Sixth Circuit case in which probable cause was found when a warrant was issued based only on evidence of a defendant's arrest in connection with a companion's possession of drugs, the defendant's attempted to conceal his address, and the officer's statement that in his experience many drug traffickers keep contraband in their homes. United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996). Unlike the Caicedo case, however, Officer Brumley did not recite in the affidavit that it was his experience that drug dealers frequently have contraband in the home, nor does the government suggest that Curtis lied about the location of his residence. Absent the Officer Brumley's statement regarding his observations at Curtis's house, the affidavit lacks any suggestion of a connection between Curtis's home and his drug activities, indeed if this information was sufficient, the officer would likely have sought a search warrant immediately rather than proceeding to Curtis's home in hope of interviewing any occupant.
C. Good Faith
The government argues that if the Court does not find the affidavit to show probable cause absent observation of items from the backyard, the Court should apply the good faith exception found in United States v. Leon, 468 U.S. 897 (1984). The government notes that a circuit split exists regarding whether it is appropriate to apply the exception to cover illegal predicate searches. See generally, United States v. Carmona, 858 F.2d 66, 68 (2nd Cir. 1988); United States v. Kiser, 948 F.2d 418, 422 (8th Cir. 1991), cert denied, 112 S.Ct. 1666 (1992); United States v. Thornton, 746 F.2d 39, 49 (D.C. Cir. 1984) (applying the good faith exception to cover illegal predicate searches); but see, United States v. Wanless, 882 F.2d 1459, 1466-67 (9th Cir. 1989); United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987) (refusing to apply the good faith exception to cover illegal predicate searches). Although the government notes that the Second Circuit did not apply the good faith exception in United States v. Reilly, 76 F.3d 1271 (2nd Cir. 1996), it suggests that this case is distinguishable.
The government is correct in its argument that this is not a situation like the one in Reilly where the officer failed to give relevant facts concerning the prior search of the backyard to the magistrate. See Reilly, 76 F.3d at 1280. When examining the officer's actions in Reilly, the court relied heavily on the officers' concealment of their actions and the judge's inability, absent that information, to "decide whether their conduct was sufficiently illegal and in bad faith as to preclude a valid warrant." Id.
Generally when determining whether an extension of the good faith exception to an illegal predicate search is appropriate, courts base the "decision on the balancing of the exclusionary rule's deterrent effect against the societal costs of suppression." United States v. Mettetal, No. 396CR50034, 2001 WL 1188941 (W.D.Va. Oct. 9, 2001). In this case Officer Brumley's application for the search warrant included the statement that "he walked to the rear of the residence to knock on the back door in an attempt to make contact with any parties that may have been inside the house." [Court File No. 115, Affidavit]. Although this Court has now determined that the intrusion into the defendant's backyard constituted an illegal predicate search, Officer Brumley did not attempt to hide his location at the time he observed the items near the back door. It appears in this case that Officer Brumley was simply unaware that the backyard would likely be a constitutionally protected area. Exclusion of the evidence obtained would therefore be unlikely to have any deterrent effect.
Absent the issue of an illegal predicate search, the Supreme Court established in Leon the good faith exception absent the following situations:
1. where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;
2. where the issuing magistrate wholly abandoned his judicial role and served merely as a "rubber stamp" for the police;
3. where the supporting affidavit was nothing more than a "bare bones" affidavit, so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and
4. where the warrant was so facially deficient — i.e., in failing to particularize the place to be searched or things to be seized — that the executing officers could not reasonably presume it to be valid.
United States v. Hicks, No. 01-3938, 2003 WL 731711 (6th Cir. Mar. 3, 2003) (citing Leon, 468 U.S. at 923). In this case, because the affidavit was not designed to mislead the judge; was complete and particular regarding the things to be seized; and (if the observations had not been made from the curtilage) would have presented facts amounting to probable cause; only the question whether the state judge was a "rubber stamp" must be considered.
It does not appear in this case that the judge "wholly abandoned his judicial role and served merely as a "rubber stamp" for the police." Id. The determination that the officer stood in the curtilage was made by this Court only after considering the absence of a path and other physical details of the property. The nuances of what is within the "curtilage" are not something that should necessarily have been readily apparent to the issuing judge. The judge cannot be said to have "wholly abandoned his judicial role" by signing a search warrant based on Officer Brumley's affidavit. Thus, because Leon does not prevent the application of the good faith exception to the exclusionary rule in this case, the evidence located in the search of the defendant's home on Strawhill Church Road will not be suppressed.
III. Conclusion
For the reasons stated above, defendant Curtis's motions to suppress [Court File Nos. 101, 103] are DENIED.
SO ORDERED.