Opinion
Criminal No. 09-09-GFVT.
July 24, 2009
ORDER
This matter is before the Court upon Magistrate Judge Wier's Recommended Disposition ("R R") [R. 24] of the Motion to Suppress [R. 12] filed by the Defendant, Timothy Joe Hays. In the R R, Judge Wier recommends that the Court deny the Motion to Suppress. Hays filed objections to the R R. [R. 26.] The United States filed a response asserting that Judge Wier's recommendation correctly sets forth the state of the law as it pertains to the facts of this case. [R. 27.] This Court has conducted a de novo review and, for the reasons set forth below, the Motion to Suppress [R. 12] will be denied.
I.
The relevant facts are as follows: While conducting helicopter surveillance on the morning of June 27, 2008, a detective with the Kentucky State Police spotted a large quantity of marijuana plants growing on a piece of property in Jackson County. Troopers assigned to the Kentucky State Police Marijuana Strike Force were directed to the area. In order to enter the property, the troopers lifted a locked metal gate from its hinges. This gate blocked a drive that permitted the only reasonable means of access to the property. Once on the property, the troopers confirmed the presence of marijuana. They also observed a pick-up truck, five structures, and a garden. One of the structures was a shed-like building that appeared to be used as a dwelling. Local peace officers indicated to the troopers that this building was the residence of Timothy Hays. The remaining structures included two other shed-like buildings, a barn, and an outhouse. Additionally, further investigation revealed that the pick-up truck was registered to Hays. The property, however, is apparently owned by Hays's mother, Wilma Isaacs. [R. 12 at 1, attach. 1.]
After the property was secured by supporting officers, KSP Trooper Jeremy Devasher left to obtain a search warrant for the property, the structures, and the vehicle. In his affidavit, Trooper Devasher stated the facts supporting issuance of a search warrant. Specifically, quoting his affidavit verbatim, Trooper Devasher averred, in pertinent part:
Upon arrival to the scene, Troopers gained access to the property by lifting the metal locked cattle gate off its hinges. The gate appeared to be the only reasonable access to the property. Multiple marijuana plants were confirmed on the property as directed by the spotter. Majority of the plants were located in the garden off the right side of the drive near the first shed and the parked truck. The first shed was indicated by local peace officers as the residence of Timothy Hays. The first shed appeared to have electricity running to it and had a clothes line with clothes hanging on it. The first shed appeared to be a dwelling. The truck on the property is registered to Timothy Hays. Both the first shed the truck and the marijuana plants were within close proximity to each other. All listed buildings to include the barn were landscaped and mowed.
There were additional plants located behind the barn, leading from a trail off the mowed area.
The total number plants to include the garden exceeded fifty. The quantity of plants is indicative of cultivation for the purposes of trafficking. A Large quantity of the plants located were observed to be mature in relationship to the time of the season. Based upon my investigation it is believed that the property to specifically include the buildings may yield additional evidence.
[R. 12, attach. 5.] The search warrant issued, and, acting pursuant to the warrant, the troopers seized marijuana seeds, eighty-one marijuana plants, and miscellaneous tax papers. [R. 12, attach. 4.]
On February 26, 2009, a federal grand jury issued an Indictment charging Hays with knowingly and intentionally manufacturing fifty or more marijuana plants in violation of 21 U.S.C. § 841(a)(1). [R. 1.] On May 4, 2009, Hays, through counsel, filed a motion to suppress the evidence found as a result of the search. Specifically, Hays argues that the search warrant was not supported by probable cause. Hays further argues that, because the supporting affidavit was devoid of even the indicia of probable cause, the good faith exception of Leon does not apply. After determining that an evidentiary hearing was not necessary because the motion calls for "four corners" review, Judge Wier issued his R R recommending denial of the suppression motion. Judge Wier concluded that the affidavit's four corners provided a fair probability that evidence would be found on the premises, and thus it provided a substantial basis for warrant issuance. Alternatively, he concluded that even if probable cause did not exist, the Leon good faith exception would spare the search. Hays timely objected to both these conclusions. His objections are reviewed de novo.
In his reply memorandum, Hays argued that if the garden, which contained marijuana plants, and the shed-like dwelling were in close enough proximity for the garden to be within the dwelling's protective curtilage, then the officers' entry onto the property itself was a violation of the Fourth Amendment, as they would have needed a search warrant before removing the gate and entering the property. [R. 23 at 1-2.] Accordingly, Hays asked for information related to the discovery of the marijuana plants to be stricken from the affidavit. [ Id. at 2.] In a lengthy footnote to his R R, Judge Wier rejected this argument [R. 24, n. 2.], and Hays now appears to have abandoned it. In his objections to the R R, Hays states that he "continues to argue that the Affidavit for the Search Warrant lacks sufficient information to support a finding of probable cause and that the good faith exception of" Leon does not apply. [R. 26 at 1.] Nowhere, however, does he expressly mention the curtilage argument. Accordingly, the Court has not reviewed it. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.") (emphasis added).
II.
The Fourth Amendment mandates that a search warrant be based "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. AMEND. IV. In order to establish probable cause to search, a warrant request must "state `a nexus between the place to be searched and the evidence sought.'" United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998) (quoting United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996)). The belief that the items sought will be found at the location to be searched must be "`supported by less than prima facie proof but more than mere suspicion.'" United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). On review, the district court's duty is simply to ensure that the judicial officer issuing the search warrant had a "substantial basis" for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236 (1983); see also United States v. Davidson, 936 F.2d 856, 860 (6th Cir. 1991) (holding that the affidavit established a substantial basis for a probable cause finding "[b]ecause only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause").Hays argues that the search warrant in his case is not supported by probable cause because the warrant request did not set forth a nexus between the place to be searched and the evidence sought. In making this argument, Hays relies heavily on United States v. Carpenter, 360 F.3d 591) (6th Cir. 2004). In Carpenter, the Sixth Circuit considered the following affidavit:
On June 23, 1999 at approx 12:30 pm, Helicopter Pilot Lt. Bob Crumley was conducting an aerial search of Hawkins Co when he was flying over the above described property he saw numerous Marijuana Plants growing. Near the residence.
Upon information I received from Lt Crumley, there is a road connecting the above described residence to the Marijuana Plants. Having personal knowledge that Lt. Crumley is certified in the identification of Marijuana I feel there is probable cause to search the said residence and property and seize any illegal contraband found.Id. at 593. The court found that the search warrant based on this affidavit was not supported by probable cause because "[t]he facts that marijuana was growing `near' the residence and that a road ran nearby fall short of establishing the required nexus between the Carpenters' residence and evidence of marijuana manufacturing." Id. at 594. The court further noted that if the affidavit had stated the additional facts "that beaten paths led from the marijuana patches to the door of the residence, and that two men had been spotted walking from the marijuana patches to the residence, the affidavit would likely have been sufficient to establish probable cause." Id.
In his R R, Judge Wier found that, in contrast to the affidavit in Carpenter, there were facts included in the affidavit in Hays's case that establish a nexus between the premises to be searched and the act of marijuana cultivation. Hays objects to this finding. Hays argues that the affidavit establishes no connection between himself or the property to be searched and the marijuana. Specifically, Hays states that "[s]imply because buildings are located close to marijuana plants does not establish that the marijuana plants were initially grown in those buildings." [R. 26 at 2.] Hays notes that nothing in the affidavit establishes that he was the only person with access to the property, and he further notes that he was not witnessed growing marijuana in his home or tending to the marijuana in the field. [ Id. at 3.] Hays claims that the facts recited in the affidavit supporting the search warrant amount to "mere suspicion," not probable cause. [ Id. at 2, 3.] According to Hays, the probable cause determination rested entirely on the information from local police that a shack on the premises was his residence. [ Id. at 2.]
As Judge Wier correctly explains in his R R, however, the probable cause determination rested on much more than the fact that one of the sheds on the property served as Hays's residence. In the words of Judge Wier:
The affidavit places at least fifty marijuana plants on the property itself, with most of those plants appearing in "close proximity" to the residential shed and a vehicle registered to Defendant. While the affidavit (unhelpfully) does not qualify the precise meaning of "near" or "close proximity," the affidavit inferentially depicts an integrated tract with landscaping and mowing that extends to the residence. Further, the reference to "close proximity" and triangular points including the garden, the truck, and the residential shed itself fairly place the garden and marijuana in the immediate area of the alleged home.
Further, the marijuana expressly appeared on the defined and targeted property, and the gravel road with the locked gate was the only reasonable access to the property. As such, a natural, suspicious link exists between access to the property's buildings and access to the property's marijuana plants. To get to the property, anyone fairly would reach the property only through the same locked gate. The locked nature of the gate indicates that one person controls the property-including an alleged residence and vehicle associated with the purported occupant. See United States v. Lynch, No. 08-0060 SI, 2009 WL 358266, at *2 (N.D. Cal. Feb. 10, 2009) (gated entrance indicative of control). Additionally, the manicured nature of the property means that someone actively managed the buildings (one of which apparently is a dwelling) and grounds during the period of marijuana cultivation close to the residential building and behind the barn.
The affidavit's reference to the marijuana as more mature than would be expected does create a fair inference that the plants were grown indoors and transplanted. The presence of buildings (at least one of which had electricity) at this site raises a fair suspicion that the buildings would reveal evidence of cultivation.
[R. 24 at 8-9.] The Court can find no fault with and nothing to add to Judge Wier's determination. By referencing the "close proximity" of the marijuana to the residence and the truck, the locked gate blocking access to the property, the manicured nature of the property, the maturity of the marijuana plants, and the presence of electricity running to one of the sheds, the affidavit establishes a sufficient nexus between the premises to be searched and the marijuana. The judicial officer issuing the search warrant had a substantial basis for concluding that probable cause to search existed.
Even if the Court were to find that the search warrant was not supported by probable cause, the search would nonetheless survive under the "good faith" exception set forth in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court modified the exclusionary rule so as not to bar from admission evidence "seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." Id. at 905. Where an officer's reliance on a warrant is objectively reasonable, the Supreme Court held, no additional deterrent effect will be achieved through the exclusion of the evidence of the fruits of that search. Id. at 922. This "good faith" exception to the exclusionary rule permits the admission of evidence obtained from the execution of an invalid search warrant except in four circumstances:
(1) when the warrant is issued on the basis of an affidavit that the affiant knows (or is reckless in not knowing) contains false information; (2) when the issuing magistrate abandons his neutral and detached role and serves as a rubber stamp for police activities; (3) when the affidavit is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable; [or] (4) when the warrant is so facially deficient that it cannot reasonably be presumed to be valid.United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at 914-23); see also United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006).
In his motion to suppress and in his objections to Judge Wier's R R, Hays argues that the affidavit in his case is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable, and thus Leon cannot save the search. In Carpenter, however, the Sixth Circuit concluded that "reasonable officers could have believed that the affidavit as submitted . . . was sufficient to support the issuance of a warrant." Carpenter, 360 F.3d at 596. According to the court, it "previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good-faith belief in the warrant's validity, even if the information provided was not enough to establish probable cause." Id. The court found that the facts contained in the affidavit, specifically the facts that the marijuana was growing near the residence and that there was a road connecting the residence and the marijuana plants, provided that minimally sufficient nexus. Id.
In his R R, Judge Wier notes that if the affidavit in Carpenter passed the Leon test, the affidavit here must pass the test as well. As stated by Judge Wier,
This affidavit has more detailed proximity information as to the marijuana and the dwelling; places the marijuana patches directly on the property targeted; and involves a locked and integrated tract that includes both plants and residence. Carpenter met Leon's threshold despite no stated link, other than undefined proximity, between the patches and the residence. By exceeding the nexus found adequate in Carpenter, the affidavit here secures Leon approval.
[R. 24 at 12 (emphasis in original).] Again, the Court can find no fault with Judge Wier's determination. Thus, under Leon, the evidence found as a result of the search should not be suppressed.
Along with its response to the motion to suppress, the United States submitted a DVD, and it argued that the Court could review the DVD in its evaluation of good faith. Hays opposed such review on the ground that the trial commissioner who issued the search warrant did not review the DVD to determine probable cause. Judge Wier concluded that he could not include the DVD in his good faith analysis because, under United States v. Frazier, 423 F.3d 526, 536 (6th Cir. 2005) (emphasis added), "a court reviewing an officer's good faith under Leon may look beyond the four corners of the warrant affidavit to information that was known to the officer and revealed to the issuing magistrate." Neither Hays nor the United States objected to this determination. Therefore, the Court has not reviewed it. See 28 U.S.C. § 636(b)(1).
III.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:(1) Defendant's Objections to the Magistrate's Report and Recommendation [R. 26] are OVERRULED;
(2) The Magistrate Judge's Report and Recommendation [R. 24] is ADOPTED and INCORPORATED herein; and
(3) Defendant's Motion to Suppress [R. 12] is DENIED.