Opinion
No. CR01-2001
April 23, 2001
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's February 16, 2001, motion to suppress evidence. This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. The court held an evidentiary hearing on this motion on March 29, 2001, and April 2, 2001, at which the defendant was present and represented by Tom Frerichs. The government was represented by Assistant United States Attorney Kristal Gibson. It is recommended that the defendant's motion to suppress be denied.
NATURE OF THE MOTION
This case arises out of a series of events occurring on March 9, 2000, in Hazelton, Iowa. On that day, law enforcement officers surveilled and then searched a garage belonging to Delbert Potter in which the defendant was present and allegedly manufacturing methamphetamine.
In this motion, the defendant contends that the police violated the Fourth Amendment by entering the garage without a warrant, seizing and searching the defendant without probable cause, and by searching the garage prior to receipt of a search warrant. The government contends that the defendant has no standing to object to this search of the garage, that the initial entry into the garage was justified as a protective sweep search, and that the only entries into the garage before the warrant were those necessary to prevent the destruction of evidence and assure safety of the building and persons present.
The court finds that the defendant did not have a reasonable expectation of privacy in the garage, that the police officers had probable cause to search the person of the defendant, and that the search was justified as being incident to a subsequent arrest. The court also finds that even if the defendant had a reasonable expectation of privacy in the garage, suppression of the evidence seized is improper.
FINDINGS OF FACT
1. On March 9, 2000, Lieutenant Jerry Furness, a lieutenant in the Buchanan County Sheriff's Office, met with a confidential informant at approximately 8:15 a.m. The informant told Lt. Furness that the defendant lived at 205-1/2 Third Street S.W. in Hazelton, Iowa, and that he was a methamphetamine manufacturer. The informant told Lt. Furness that within the past week the informant had observed the defendant manufacturing methamphetamine using over 1,000 ephedrine pills, AA lithium batteries, 12-volt lithium batteries, and two quarts of anhydrous ammonia. The informant further told Lt. Furness that the defendant cooked methamphetamine at 116 Third Street S.W. in Hazelton, and that he uses an apartment nearby to complete the final phase of methamphetamine production, the salting out of the methamphetamine. The informant knew the owner of the residence at 116 Third Street S.W. as "Delby." The police confirmed that the owner of the property in question was a Delbert Potter.
2. The informant also informed Lt. Furness that two and one-half weeks prior, the defendant had manufactured methamphetamine and was burning the remnants of the cooking process in his backyard when two deputy sheriffs came to the residence and made the defendant extinguish the fire. Lt. Furness was able to confirm that two officers had gone to the defendant's residence on that occasion but apparently did not know that the defendant was burning the remnants of a methamphetamine cook.
3. Based on the information from the informant, Lt. Furness and Oelwein Police Department Lieutenant Mark Phippen went to Hazelton at about 1:30 p.m. on March 9. They observed the defendant's pick-up truck at approximately 2:00 p.m. that afternoon at Delbert Potter's residence. The police set up surveillance at a convenience store located approximately one block to the east of Potter's residence and surveilled an outbuilding at the residence that was referred to in testimony as a garage or a shed.
4. At approximately 2:10 p.m., Furness observed a woman leave the garage, drive to the convenience store, and purchase two cartons of table salt. Furness is a DEA certified clandestine lab investigator technician and knew that table salt is used in conjunction with a drain cleaner or sulphuric acid in the final phase of manufacturing methamphetamine. Furness and Phippen watched as she got back in her car, drove back to the garage, and went inside with the salt. She drove a vehicle registered to a person known by Lt. Phippen to be a methamphetamine user.
5. Shortly before 3:00 p.m., Furness observed the defendant leave the garage holding a white five-gallon bucket and pour a liquid substance on the ground before going back inside the garage. At approximately 3:35 p.m., the defendant put a coat in the back of his pick-up truck. Furness decided that he would secure the building and apply for a search warrant to search it.
6. Lt. Furness was concerned about the hazards associated with an active methamphetamine process. His concern was intensified by the presence of smoke coming out of the top of a pipe leading from the garage. He was also concerned about the potential for destruction of evidence because of the five-gallon pail of fluid already poured onto the ground and the fire in the stove inside the garage. Thus, when Furness observed the defendant pour liquid out of the bucket, he made the decision to secure the garage before securing a warrant.
7. Furness, Phippen, and two other law enforcement officers drove to the property and made entry through the north door. The defendant was inside holding a pipe in a threatening manner over his head. Shortly after they identified themselves as police, the defendant dropped the pipe and the defendant was handcuffed and taken outside the garage. Police officers checked the building to make sure that no one else was there. Once outside, the defendant was patted down. A knife and another object was taken from his person. Later, before being interviewed in a patrol car by another officer, Deputy Buchanan County Sheriff Dennis Caldwell observed bulges in the defendant's pockets and again searched him before placing the defendant in the patrol car. Again, the police seized items that they intend to use at the time of trial.
8. A search warrant was secured for the garage, the nearby house, and the defendant's residence down the street at approximately 7:00 p.m. that evening. The magistrate who issued the warrant did not record the time of the warrant because he was preoccupied by family matters at his home. Before the warrant was issued, at least two police officers entered the garage in question out of a concern about the safety associated with an open fire and methamphetamine manufacturing fumes. The doors to the garage were opened before the warrant came to air out the premises.
9. The defendant is Delbert Potter's former brother-in-law. The defendant had permission to use Delbert Potter's garage and possessed his own key to the small door on the north side. The defendant would use Potter's garage to work on his cars and he would use Potter's tools. The defendant did not have a key to the large doors. When the defendant wanted to work on his car, he would let Potter know and Potter would leave the padlock on the large door unlocked. The defendant would pull his car in, work on it, and then lock the padlock when he finished. The defendant did not lease the garage or pay anything to use it. Potter simply let him use it because they were friends.
Potter was asked the following leading question that called for a legal conclusion:
Q. So he had a right to be there and keep stuff there and work there?
A. Yes.
There was nothing in the testimony to suggest that the defendant had any "right" to be there other than having Delbert Potter's permission. Further, there is no evidence that the defendant kept any belongings in the garage. The only "work" that the defendant did in the garage was work on his car and manufacture methamphetamine.
CONCLUSIONS OF LAW
• Standing Fourth Amendment rights are personal in nature and may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174 (1969); United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999). When a defendant claims he should be protected under the Fourth Amendment, "a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable . . . ." Minnesota v. Carter, 525 U.S. 83, 88 (1998). The defendant must be "able to show the violation of his (and not someone else's) Fourth Amendment rights . . . .'" Id. To show a violation of his Fourth Amendment rights, the defendant must show he had an actual, subjective expectation of privacy in the garage in which society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).The facts in this case are somewhat similar to those in United States v. Jones, 362 U.S. 257 (1960). In Jones, the defendant was arrested in an apartment while federal officers were executing a warrant to search for narcotics. Id. at 258-59. The government disputed Jones' ability to challenge whether the warrant had probable cause because Jones did not allege an ownership interest in the seized item or an ownership interest in the apartment where the search occurred. Id. at 259. Jones "testified that the apartment belonged to a friend, Evans, who had given him the use of it, and a key, with which [Jones] had admitted himself on the day of the arrest." Id. Furthermore, he "testified that he had a suit and shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, that Evans had let him use it `as a friend,' that he had slept there `maybe a night,' and that at the time of the search Evans had been away in Philadelphia for about five days." Id. The Court held that Jones could challenge the search because Evans had consented to Jones' presence on the premises and adopted an automatic rule of standing which "recogniz[ed] that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress." Id. at 267. In Rakas v. Illinois, 439 U.S. 128 (1978), the Court rejected the automatic standing rule adopted in Jones. The Court held that instead of applying standing principles, i.e., "first, whether the proponent of a particular legal right has alleged `injury in fact,' and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties," courts should apply substantive Fourth Amendment principles. Id. at 139. While rejecting the automatic standing rule, theRakas Court did not change the overall conclusion in Jones: "[T]he holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises . . . ." Id. at 143.
The question in this case is whether the defendant had a reasonable expectation of privacy in the garage based on his possession of a key and permission to use it. The court recognizes this case is somewhat similar to Jones; however, the court finds that Jones is distinguishable and that the defendant did not have a reasonable expectation of privacy in the garage. When determining whether a defendant has a reasonable expectation of privacy, courts consider several factors, including: "`ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.'" United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000) (quoting United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994)); see also McCaster, 193 F.3d at 933 (listing the following factors:
"whether the party had a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain privacy; and whether the party had a key to the premises").
The first question is whether the defendant had ownership, possession and/or control of the garage. The ownership and possession question will be addressed separately from the issue of control. The defendant did not have an ownership or possessory interest in the garage. While courts have repeatedly criticized the use of terms such as "guest," "invitee," "lessee," "licensee" or other property law terms to determine Fourth Amendment rights, the defendant's possessory interest in the area searched or item seized is a factor to consider when evaluating a defendant's reasonable expectation of privacy. See, e.g., Jones, 362 U.S. at 265-66; United States v. Pierson, 219 F.3d at 807; see also Minnesota v. Olson, 495 U.S. 91 (1990) (holding that an overnight guest has a reasonable expectation of privacy in a host's home). The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." U.S. Const. amend. IV. Areas such as a garage or outbuilding are given Fourth Amendment protection by virtue of their association with a home. See United States v. Dunn, 480 U.S. 294, 301 (1987) (discussing curtilage as extending to areas "so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection").
The home associated with the garage belonged to Delbert Potter. Potter testified that he never let the defendant use his residence, only the garage. The defendant was, therefore, not an overnight guest. The defendant did not pay Potter rent for his use of the garage. The defendant's possessory interest in the garage was merely that Delbert Potter had given him permission to be there and a key. There was no evidence that the defendant ever left any of his belongings in the garage. Potter merely let him use it "as a friend." Because Potter lacked a significant possessory or ownership interest in the garage, this factor weighs against a finding of a reasonable expectation of privacy. He was simply there, had a key and permission.
Turning to the issue of control, the defendant possessed a key to the side door of the premises. While this type of unencumbered access weighs in favor of finding a reasonable expectation of privacy in the area,United States v. Nabors, 761 F.2d 465, 469 (8th Cir. 1985), the defendant's purported main purpose for using the garage was for working on his car. The defendant, however, did not have a key to the large doors. When he wanted to work on his car and use Potter's tools, he had to notify Potter and Potter would unlock the large doors.
The defendant did not have the right to exclude others from the garage or regulate access to the garage. "One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Rakas, 439 U.S. at 143 n. 12 (citing W. Blackstone, Commentaries, Book 2, ch. 1 (1768)); Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). The defendant merely had permission to be on the premises. This permission did not extend to the right to exclude others from being on the premises. Delbert Potter was the only person with the ability to choose who could use the garage.
Attempts to keep an area private indicate the defendant's subjective expectation of privacy. See United States v. Ruth, 65 F.3d 599, 605 (7th Cir. 1995). Even though a defendant "argues that he obviously intended [criminal activity] to remain private, `the subjective expectation of not being discovered conducting criminal activities is insufficient to create a legitimate expectation of privacy.'" United States v. Nabors, 761 F.2d 465, 469 (8th Cir. 1985) (quoting United States v. Meyer, 656 F.2d 979, 982 (5th Cir. 1981)). The defendant here made methamphetamine behind closed doors.
In sum, while the defendant's case resembles Jones, the court finds that the factors weigh against the defendant having a reasonable expectation of privacy in the garage. Because the court recognizes that reasonable minds can disagree about standing here. The court also addresses the merits of the motion.
• Initial Entry of the Garage and Subsequent Sweep Search
Based on his observations, Lt. Furness decided to apply for a search warrant before entering the garage to secure it. A warrantless entry may be justified based on exigent circumstances. See Warden v. Hayden, 387 U.S. 294, 298-99 (1967). The exigent circumstances exception extends to situations in which evidence is about to be destroyed. United States v. Pierson, 219 F.3d at 805; United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). In addition, dangerous situations in which public safety is threatened is a well identified exigency. Michigan v. Tyler, 436 U.S. 499, 509-10 (1978); United States v. Boettger, 71 F.3d 1410, 1415 (8th Cir. 1995).
The initial entry into the garage falls within the exigent circumstances exception to the warrant requirement. Lt. Furness saw smoke emanating from a pipe on the roof of the garage. He had information from the confidential informant that the defendant had previously burned the remnants from a methamphetamine cook at his residence. Lt. Furness had confirmed that two deputy sheriffs had gone to the defendant's residence on that occasion and had told him to extinguish the fire. Lt. Furness had just seen the defendant empty the contents of a five-gallon bucket onto the ground outside the garage. This concern about the destruction of evidence justifies the warrantless entry into the garage.
After entering the garage, the officers checked the building to make sure there were no other occupants inside. In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court approved of the use of a protective sweep in which officers are limited to "a cursory inspection of those places where a person may be found" which "lasts no longer than is necessary to dispel the reasonable suspicion of danger . . . ." Id. at 335-36. The officer's belief must be based on specific, articulable facts. Id. at 337; United States v. Cunningham, 133 F.3d 1070, 1073 (8th Cir. 1998). The officers had seen a female subject enter and leave the premises before making their entry. They also needed to make sure no one else was present who would be in danger or who could potentially destroy evidence. The sweep search was limited in time and scope and, therefore, was a permissible search.
III. Search of Defendant's Person
The officers had probable cause to arrest the defendant and the search of his person was justified as a search incident to an arrest. "Probable cause for an arrest exists when the totality of circumstances demonstrates that the arresting officer personally knows or has been reliably informed of sufficient facts to warrant a belief that a crime has been committed and that the person to be arrested committed it."United States v. Reinholz, ___ F.3d ___, 2001 WL 300560, at *9 (8th Cir. Mar. 29, 2001); United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995) ("Probable cause exists if the facts and circumstances within the arresting officer's knowledge were sufficient to warrant a prudent person's belief that the suspect had committed or was committing an offense."). The information Paragraphs 2, 4, and 5 in the Findings of Fact above, along with the evidence in plain view in garage, clearly establish probable cause to believe that the defendant was manufacturing methamphetamine.
Also, the showing of probable cause in the warrant easily satisfies the Fourth Amendment probable cause standard for a search of the garage.
The officers searched the defendant twice: once after they took the defendant outside and a second time before they placed him in a patrol car. A search incident to an arrest is a traditional exception to the warrant requirement. United States v. Robinson, 414 U.S. 218, 224 (1973); United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999). When an arrest is made based on probable cause, the police may search the arrestee for weapons or evidence to be used at trial. Robinson, 414 U.S. at 235. The police had probable cause to arrest the defendant and therefore could search him and seize any items found.
IV. Independent Source for the Warrant
Even if the initial entry was impermissible under the Fourth Amendment, suppression of the items seized at the garage is improper because there was an independent source for the warrant under which the evidence was seized. In Segura v. United States, 468 U.S. 796 (1984), police officers secured an apartment from the inside for the purposes of preventing the destruction of evidence while waiting to secure a search warrant for the premises. The Court determined that "[w]hether the initial entry was illegal or not is irrelevant to the admissibility of the [evidence seized pursuant to the warrant] . . . ." Id. at 813-14. InSegura, the information in the warrant did not include any of the information derived from or related to the initial entry. Id. at 814. In addition, the agents learned of the information relied upon in the warrant well before their initial entry from sources unconnected to the initial entry. Id. The Court held that the evidence seized under the valid warrant "was the product of [the warrant] search, wholly unrelated to the prior entry. The valid warrant search was a `means sufficiently distinguishable' to purge the evidence of any `taint' arising from the entry." Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
In United States v. Murray, 487 U.S. 533 (1988), police illegally entered a warehouse and then applied for a warrant without mentioning the prior entry and without relying on their observations during the illegal entry. The Court reasoned that "the evidence seized during the warrant search was admissible if the search warrant was the product of independent sources of information, rather than information obtained during the illegal entry." United States v. Mithun, 933 F.2d 631, 635 (8th Cir. 1991) (citing Murray, 487 U.S. at 542). The question of whether the evidence was from an independent source turned on two questions:
whether "the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or [whether] the information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant."Murray, 487 U.S. at 542 (footnote omitted); Mithun, 933 F.2d at 635.
Both prongs of the Murray independent source analysis have been met. First, Lt. Furness made the decision to seek a warrant before his initial entry into the garage. Second, just as in Segura, none of information from the initial entry was presented to the magistrate who issued the warrant. Therefore, the fact of a prior entry or any information derived from the prior entry did not affect the magistrate's decision to issue the warrant. In Murray, the Court instructed:
To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred — not whether it would have been sought if something else had happened. That is to say, what counts is whether the actual illegal search had any effect in producing the warrant . . . .Murray, 487 U.S. at 542 n. 3. The warrant was clearly independent of the initial entry into the garage. Therefore, even if the initial entry into the garage was illegal, it would be improper to suppress the evidence under the independent source rule.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's February 16, 2001, motion to suppress evidence (docket number 14) is denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).