Opinion
Case No. 01-40009-01/02-DES
June 19, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendants' motions to suppress (Docs. 29 and 31) and motions for a hearing pursuant to Franks v. Delaware (Docs. 29 and 31). On June 5, 2001, the court held an evidentiary hearing on the motions. For the following reasons, defendants' motions to suppress and motions for a hearing pursuant to Franks v. Delaware are denied.
I. FINDINGS OF FACT
On February 14, 2001, the grand jury returned a two count indictment against the defendants, William Gregory Kalinich ("Kalinich") and Michael John Doherty ("Doherty"). Count one alleges that on or about March 1, 2000, to August 11, 2000, the defendants knowingly, willfully and unlawfully combined, conspired, confederated and agreed with each other and other parties whose identities are known and unknown to the grand jury, to possess with intent to distribute approximately 112 marijuana plants in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Count two alleges that on or about August 11, 2000, the defendants knowingly and intentionally possessed with intent to distribute approximately 112 marijuana plants in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.§ 2.These charges were the result of the events described below.
On August 9, 2000, Special Agent ("SA") Dixon of the Kansas Bureau of Investigation ("KBI") observed a suspected cultivated marijuana field during a routine marijuana eradication flight. The marijuana field was in an isolated area of Douglas county. It was located on public land in a tall brush area between a creek and a bean field. There was only one house nearby, located approximately one-eighth to one-quarter of a mile away. Later that day, SA Dixon and Special Agent in Charge ("SAC") Brandau inspected the field and found cultivated marijuana plants.
The evidence presented establishes that although the house was one-eighth to one-quarter mile away from the marijuana field by walking across the bean field in a straight line, walking from the marijuana field to the house using the path along the edge of the bean field to the road was actually one-half to three-quarters of a mile. The court finds this distinction irrelevant, as the residence was clearly "near" and easily accessible to the marijuana field.
On August 11, 2000, at approximately 8:30 a.m., agents from the KBI, including SAC Brandau, SA Dixon, and SA Jorgensen arrived at the marijuana field to set up electronic surveillance equipment. SAC Brandau was the first to discover Kalinich standing in the field wearing camouflaged clothing. Kalinich ran but was apprehended. While walking along the creek, SAC Brandau also discovered Doherty hiding in the brush near a battery powered submersible water pump. The agents discovered evidence in the field which suggested defendants were in the process of cultivating the field. The plants had just been watered, and agents found a garden hose watering the last plant. The agents also discovered a bucket containing a mixture of water and miracle grow. The agents could find no other explanation for defendants presence in the field, such as a nearby garden or animals.
Kalinich and Doherty were placed under arrest and searched. Doherty possessed a pair of pruning shears, a bag of miracle grow, and electrical connecters similar to those used to hook up the submersible water pump. Doherty refused to identify himself, but Kalinich identified himself by name and birth date. Both men refused to speak to the agents. Once the men were searched, agents called for a helicopter and began to search the surrounding area for other suspects. SA Jorgensen went to a residence located near the marijuana field and found the front door standing open. When he yelled to see if anyone was home, no one answered. When SAC Brandau arrived at the house, SA Jorgensen told him that no one appeared to be home but he had not gone in the house. SA Jorgensen then ran a registration check on the two cars parked in front of the residence, which revealed they were registered to Doherty. The mail carrier also confirmed that Doherty had lived at the residence for approximately nine years. Doherty was identified by a driver's license photo from the Department of Motor Vehicles, which officers from Topeka brought to the crime scene.
At some point, SAC Brandau did a protective sweep of the Doherty's residence to determine if any other persons were in the house. The agent testified he was concerned for the officers' safety, as the agents did not know how many persons were in the field and it would have been easy for a person to get from the field to the house unnoticed due to the high brush and trees in the area. SAC Brandau did not seize any evidence or open any drawers. SAC Brandau did not tell SA Jorgensen that he conducted a protective sweep, nor did SA Jorgensen know about the protective sweep.
A search by helicopter revealed two additional cultivated marijuana fields approximately one-half to three-quarters of a mile away from the first field. Each field was in a different growth stage. The first field had fifty-four marijuana plants, approximately three to five feet tall. The second field had twenty-four marijuana plants, approximately six to seven feet tall. The third field had thirty-four marijuana plants, approximately eight to nine feet tall. There was no foot trail between the first and second fields, but there was a foot trail between the second and third fields. The agents determined the creek bed was a logical trail between the first and second fields. The creek had no running water, only occasional pools of water, the result of a very dry year. Despite the differences between the fields, the agents determined defendants cultivated the three fields for several reasons. First, the location and accessibility of the three fields. Second, the marijuana plants in all three fields contained small round balls of liquid, which SA Dixon had never seen in other fields. Third, the plants were held up by dead stalks. Finally, the ground around the plants was covered by dead foliage.
SA Jorgensen was assigned to write affidavits for search warrants for the Doherty residence, located at 721 E. 250 Rd., Overbrook, Kansas, and the Kalinich residence, located at 324 Tallgrass, Lawrence, Kansas. Kalinich's address was confirmed by checking utility records. Search warrants were issued and evidence seized at both residences. Doherty's telephone records reveal that seven phone calls were made from Doherty's cordless phone by law enforcement agents after the defendants were taken into custody but before the search warrants were issued. SAC Brandau, SA Dixon, and SA Jorgensen testified that they did not take the phone from the house, they did not make any phone calls from inside the house, nor were they aware of anyone who took the phone from inside the house. However, the agents testified that it would not be a surprise if someone took the cordless phone outside because of the reception problems law enforcement agents were having with their cellular phones. SA Jorgensen testified that all phone calls were made outside defendant's house and it was possible that the calls were made from Doherty's cordless phone.
II. ANALYSIS
Defendants challenge the search of their residences. Both defendants argue that the search warrant for their residence was not supported by probable cause. Defendants also argue the Leon good faith exception does not apply because the affidavit included false information, omitted material information, and the magistrate judge abandoned his judicial role. To determine whether false information was included or material information omitted, defendants request a hearing pursuant to Franks v. Delaware.
A. Existence 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)). "[T]he duty of a 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). A magistrate judge's determination of probable cause is given substantial deference. Id. at 236.
In this case, the affidavit for the search warrant of both residences sets out the basic facts of the investigation. The affidavit includes a description of the discovery of the first marijuana field, including the fact that approximately fifty cultivated marijuana plants were growing in the field. It describes where defendants were located (one standing in the field and one hiding in the weeds near the field) and what they said (Doherty would not give his name or any information and Kalinich would only give his first name). The affidavit explains that the officers walked to a nearby house, looking for additional suspects. The affidavit provides that the two cars parked outside the house were registered to Doherty at that address and the mail carrier told officers that Doherty lived at the house for the last nine years. The affidavit also explains that using utility records the officers were able to determine Kalinich's address. Finally, the experienced narcotics enforcement agent who produced the affidavit stated the many ways in which drug traffickers conduct their business, including keeping records of the transactions. No additional information was provided.
Defendants argue the warrant is not supported by probable cause because the warrant application does not establish the required nexus between the areas searched and evidence of a drug crime. Specifically, the affidavit does not establish that defendants are drug traffickers or that evidence would be discovered at the residences. Probable cause requires a nexus between the place to be searched and the items to be seized. United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). A nexus is established "when the circumstances set out in the affidavit would warrant a person of reasonable caution to believe that the articles sought would be found at the place to be searched." Id. at 1362. However, the warrant application does not have to contain direct evidence or personal knowledge that the items sought are located at the place to be searched. Id. The issuing magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).
Defendants were discovered in a field of fifty marijuana plants located in an isolated area. The inference that the two men were marijuana growers and/or drug traffickers is reasonable. Further, the inference that drug traffickers keep records of transactions in their homes is also reasonable. Although the Tenth Circuit has declined to decide whether a search under similar circumstances is supported by probable cause, other circuits have held that evidence that a defendant is a drug trafficker is sufficient to establish probable cause to search his residence. See United States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999) (holding evidence that defendant was a drug dealer was sufficient to establish probable cause to search his residence); United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994) (same); United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (finding probable cause where the affidavit stated defendants were involved in a drug trafficking conspiracy and that members of the conspiracy maintained records regarding their activities). The court finds that possession of fifty marijuana plants is sufficient to establish defendants were marijuana growers and/or drug traffickers and is sufficient to supply probable cause to search defendants' residences.
The Tenth Circuit was faced with a similar issue in United States v. Nolan, 199 F.3d 1180 (10th Cir. 1999). In Nolan, the Tenth Circuit declined to rule on whether evidence of ten sales to an informant at different locations was sufficient to supply probable cause to search the seller's residence and upheld the search based on the Leon good faith exception. 199 F.3d at 1184. However, the Tenth Circuit recognized that other courts had held there was probable cause to search a residence under such circumstances. Id. at 1183.
B. Leon Good Faith Exception
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 grounds 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).
The court finds the information recounted in the affidavit provides an objectively reasonable basis for reliance upon the magistrate judge's determination of probable cause. Defendants were discovered standing in and hiding next to a cultivated marijuana field of fifty marijuana plants in an isolated area. As discussed above, this is sufficient to raise the inference that defendants were drug traffickers and that evidence of the crime would be located in defendants' residences. Given the current state of the law, it is entirely reasonable for an officer to rely upon the magistrate judge's determination of probable cause. The court finds the warrant was not facially deficient. Likewise, the court finds the issuing magistrate did not abandon his judicial role.
Doherty argues the good faith exception does not apply because the affidavit included false information, which misled the issuing magistrate judge, i.e., that the affiant, SA Jorgensen, did not enter the residence. The evidence at the hearing established that SAC Brandau conducted a protective sweep of the residence to determine if other persons were present prior to the application for a warrant. The evidence also established that Doherty's cordless phone, which was located in his living room, was used by law enforcement agents prior to the application for a warrant. The government argues that although SAC Brandau conducted a protective sweep of the residence to determine if other persons were present, no one relayed that information to SA Jorgensen. Even if SA Jorgensen knew of the sweep, the government argues this information was not necessary to the determination of probable cause. It appears the government first learned of the phone calls at the hearing, consequently, the government has not had the opportunity to argue its position. Therefore, the court will consider the phone calls in the context of the government's arguments regarding the protective sweep.
There is a presumption of communication of knowledge between officers working closely together on a crime scene. United States v. Shareef, 100 F.3d 1491, 1503-04 (10th Cir. 1996). However, this presumption may be rebutted if the information is not actually communicated and there are no circumstances giving rise to imputed knowledge. Id. at 1504. The court finds the presumption of communication is rebutted. SAC Brandau testified that he did not inform SA Jorgensen of the protective sweep. SA Dixon and SA Jorgensen both testified they did not know a protective sweep was performed. In this case, the information regarding the protective sweep was not communicated. Likewise, the information regarding the cordless phone was not communicated. SAC Brandau, SA Dixon, and SA Jorgensen testified that they did not take the phone from the house or make any calls from inside the house. The agents also testified that they were not aware of anyone who took the phone from inside the house and they did not see anyone make phone calls from inside the house.
There is also no basis to impute knowledge to SA Jorgensen due to the extensive nature of the investigation in this case. The evidence established that the agents were not stationary, as their investigation spanned over a one mile radius. There were several law enforcement officers from different organizations present in the crime scene area. Information was learned at different times and communicated through other individuals. It is reasonable that SA Jorgensen would have no reason to know of the protective sweep. Likewise, it is reasonable that SA Jorgensen would not know that the cordless phone was removed from the house and used by various law enforcement agents. Each KBI agent had their own cellular phone and SA Jorgensen had a portable car phone. Other law enforcement officers present had their own cellular phones. The evidence established that law enforcement on the scene had difficulty using the cellular phones due to poor reception in the remote area. SA Jorgensen could have used the cordless phone himself without realizing it belonged to the defendant. The court finds there is an inadequate basis to impute knowledge of either the protective sweep or the cordless phone to SA Jorgensen.
Even if the court determined SA Jorgenson intentionally provided the court with false information, a protective sweep or entry into the house does not result in suppression of evidence where the officers neither seized any objects that defendants seek to suppress nor used any information gathered during the sweep or entry into the house as the basis for the search warrant of the house. United States v. Occhipinti, 998 F.2d 791, 800 (10th Cir. 1993) (citing United States v. Soria, 959 F.2d 855, 857 (10th Cir. 1992)). "[T]he exclusionary rule cannot serve to suppress evidence not seized." Id. In this case, law enforcement did not seize any evidence during the protective sweep, nor did SA Jorgensen include any information gathered during the protective sweep in the affidavit. There is no evidence that the agent/officer who took the phone from the house gathered information or that such information was included in the affidavit. Therefore, the protective sweep and obtaining the phone, whether known or not known by SA Jorgensen, cannot be used as a basis for suppression.
Defendants further argue the good faith exception does not apply because the affidavit omitted several material facts, which misled the issuing magistrate judge. These material facts include the fact that (1) neither defendant had any criminal history, (2) there was no investigation of the relationship between the two men, and (3) the discovery of the two additional marijuana fields. The government argues the omitted information was not material and would not alter the magistrate judge's determination of probable cause.
Upon review, the court finds the magistrate judge would not have changed his determination of probable cause even if the excluded information had been presented to him. The fact that defendants had no prior convictions for drugs does not decrease the possibility that they were drug traffickers, particularly when the two men were found standing in and hiding next to a marijuana field of fifty plants. The fact that the agents did not further investigate the relationship of the two men is likewise irrelevant. Defendants were discovered in an isolated area and refused to speak to the agents. Applying for a search warrant does not require that the agents exhaust all possibilities. The fact that the agents discovered two additional marijuana fields, which they believed were linked to the first field only increases the probability that the two men were drug traffickers. Therefore, this information was irrelevant to the magistrate judge's determination. None of the facts omitted from the affidavit are material to the magistrate judge's determination of probable cause. Therefore, the omission of this information does not justify suppression of the evidence acquired in the search of the defendants' residences.
The court held an evidentiary hearing on the motion to suppress, which gave defendants an opportunity to examine the agents regarding the false statement and omitted information. The court includes this section to address the possibility that defendants seek a hearing to expand the information gathered at the first hearing.
Defendants argue they are entitled to a Franks hearing because the affidavit included a false statement and omitted material information. The government argues the false/omitted information would not alter the magistrate judge's determination of probable cause and, therefore, a Franks hearing is not necessary.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held the Fourth Amendment requires the court to hold a hearing at defendant's request "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." 438 U.S. at 155-56. Accordingly, "a court may look behind a search warrant when the affiant intentionally or recklessly misleads the magistrate judge by making an affirmatively false statement or omits material information that would alter the magistrate judge's probable cause determination." United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997).
As discussed above, the false statement and omitted information were not material to a determination of probable cause. Because this information would not alter the magistrate judge's determination, the court denies defendant's request for a Franks hearing.
IT IS THEREFORE ORDERED BY THE COURT that defendants' motions to suppress (Docs. 29 and 31) and motions for hearing pursuant to Franks v. Delaware (Docs. 29 and 31) are denied.