Opinion
No. CR03-2022.
June 23, 2003.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's May 28, 2003 motion to suppress evidence (docket number 10). By order dated June 3, 2003, the 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 June 9, 2003, at which the defendant was present and represented by Russell H. Schroeder, Jr. The government was represented by Assistant United States Attorney C.J. Williams. It is recommended that the motion to suppress be granted in part and denied in part.
The motion to suppress arises out of a January 9, 2003 traffic stop and seizure of methamphetamine from the defendant. The police then used that evidence to secure a search warrant for the defendant's residence. The defendant contends that the police officer who conducted the traffic stop did not have grounds to do a pat-down search that ultimately revealed the presence of methamphetamine. The defendant also moves to suppress the evidence gathered as part of a search warrant. The court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
In late 2002, Mitchell County Deputy Sheriff Jerry Jensen was conducting an investigation into defendant James Kruse's drug trafficking activity. As a part of that investigation, the defendant's ex-girlfriend, Brenda Gruver, was interviewed on November 8, 2002. During that interview, Ms. Gruver, told Deputy Jensen that the defendant was frequently manufacturing methamphetamine in 1 to 1-1/2 ounce quantities. She further identified him as a user and distributor of methamphetamine. Ms. Gruver told the police that he had been manufacturing methamphetamine from 2000 until the summer of 2002 which was the last time she had the ability to observe him in this activity. She further informed the police about the defendant's associates engaging in drug-related activity.
At the June 9, 2003 hearing, Deputy Jensen testified that Ms. Gruver stated she saw firearms at the defendant's house and that the defendant carried a black or silver handgun. Deputy Jensen has since stated that his recollection of Mr. Gruver's statements was mistaken. He now recalls Ms. Gruver was referring to another suspect when she described the silver or black handgun.
Deputy Jensen knew that Ms. Gruver and the defendant had a child together and that they were in a custody fight at the time of the interview. Ms. Gruver expressed concern for the safety of the child. Although the police had not received information from Ms. Gruver in the past, Deputy Jensen was persuaded that her information was reliable in part because she came forward voluntarily with the information.
The police also had other information that corroborated Ms. Gruver's statements to some extent. The best example of this was that the defendant's neighbors reported frequent short and long-term traffic at his residence in the middle of the night. This kind of information was provided to the police department on an ongoing basis up until the time a search warrant was executed for the defendant's residence.
On January 9, 2003, Deputy Jensen was in his patrol car north of Staceyville, Iowa. He was specifically hoping to make a traffic stop of the defendant based on the information provided from Ms. Gruver suggesting that the defendant carried methamphetamine on his way to work in Austin, Minnesota. At approximately 4:45 a.m., the defendant was driving his vehicle at approximately 80 miles per hour in a 55 mile an hour speed zone. After using his radar to detect this speed, Deputy Jensen noticed that it was the defendant's truck. At the hearing, the defendant admitted that he was speeding. Deputy Jensen immediately made a traffic stop and pulled over the defendant in his truck.
After the defendant was stopped, he got out of his car and walked back toward the patrol car. Deputy Jensen met him outside in between the patrol car and the defendant's truck. Deputy Jensen was concerned about his safety because it was 4:45 in the morning, the defendant was out of his car, Deputy Jensen was the only deputy on duty in Mitchell County at the time, and any back-up officers were fifteen to twenty minutes away.
Deputy Jensen asked the defendant for his driver's licence. The defendant provided a driver's license but the license had expired. As he searched for his license, the defendant appeared to be very nervous. Although it was cold outside, Deputy Jensen found it unusual that the defendant would be shaking immediately upon getting out of his car. Deputy Jensen asked the defendant whether he had any drugs, weapons, or other contraband. The defendant denied that he had any such items. Deputy Jensen asked the defendant if it was okay if he patted him down and the defendant replied, "sure." Upon performing the pat-down search, Deputy Jensen noticed that there was a cylindrical object in the defendant's left breast pocket of his flannel shirt. Deputy Jensen asked the defendant what it was. The defendant informed Deputy Jensen that it was a bottle that contained pain medication for a back problem. When Deputy Jensen asked to see it, the defendant took it out and showed him a milk sample bottle approximately three inches in length with the cylinder being the approximate diameter of a quarter. The defendant displayed the milk sample bottle for a few seconds and put it back in his shirt pocket.
Deputy Jensen then asked the defendant for his registration and proof of insurance papers. The defendant was allowed to go back to his truck where he grabbed a large stack of papers and came back to the patrol car. As the defendant was sitting in the patrol car, Deputy Jensen remembered that Ms. Gruver indicated that the defendant carried drugs in milk sample bottles. Deputy Jensen asked to see the bottle again. The defendant stated that it was in his truck. Deputy Jensen knew this was not true as he could see the outline of the bottle inside the defendant's shirt. As Deputy Jensen reached for the bottle, the defendant pushed his arm away. The defendant got out of the car. Deputy Jensen met the defendant outside and grabbed him. The defendant again indicated that the milk sample bottle was in the truck. He also indicated that it might have fallen out of his pocket when he had just gotten out of the patrol car.
Deputy Jensen then told the defendant to stand by the car while he searched for the bottle. He searched the ditch around the car but found nothing. Finally, he located it approximately ten feet behind the patrol car. When he displayed it for the defendant, the defendant stated that his milk sample bottle was green, not blue like the one the officer was holding. Deputy Jensen opened it and found methamphetamine inside the bottle.
Based on the information given to Deputy Jensen by the defendant's former girlfriend and the drugs recovered in the traffic stop on January 9, 2003, Deputy Jensen applied for and received a search warrant for the defendant's residence on January 9, 2003. The description of the place to be searched was identified as the residence at 2317 465th Street in Stacyville, Iowa, which was further described as a white two-story wood framed home with an attached two-stall garage on the north side. The warrant also permitted the police to search specific vehicles on the premises. The premises contained several other outbuildings that were not separately described in the warrant. Police found a number of incriminating items during the search of the residence, vehicles and outbuildings.
CONCLUSIONS OF LAW Pat-Down Search
The standard of articulable justification required by the Fourth Amendment for an investigative stop is whether police officers were "aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant[ed] suspicion that a crime [was] being committed." United States v. Martin, 706 F.2d 263, 265 (8th Cir. 1983) (citations omitted); see also Terry v. Ohio, 392 U.S. 1, 20-21 (1968). "[T]he totality of the circumstances — the whole picture — must be taken into account." United States v. Cortez, 449 U.S. 411, 417 (1981). A court "may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals." United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir. 1988) (citingUnited States v. Wallraff, 705 F.2d 980, 988 (8th Cir. 1983)). "[T]he officers must be acting on facts directly relating to the suspect or the suspect's conduct and not just on a `hunch' or on circumstances which `describe a very broad category of predominantly innocent travelers.'" Id. at 1093-94 (citations omitted).
With respect to searches for weapons, the Eighth Circuit has instructed that: "A police officer may search an individual's outer clothing to discover weapons when the officer reasonably believes that the individual may be armed and dangerous."United States v. Ward, 23 F.3d 1303, 1306 (8th Cir. 1994) (citations omitted). In determining whether the officer acted reasonably in such circumstances, a court must give due weight "to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id. (quotingTerry v. Ohio, 392 U.S. at 27).
Applying these principles to the circumstances in this case, the court finds that the facts known to Deputy Jensen were sufficient to have aroused a reasonable, articulable suspicion on his part that the defendant might be armed and therefore pose a serious safety risk. The pat-down in this case occurred in connection with a lawful traffic stop, the traffic stop occurred in a remote area at 4:45 a.m. when it was still dark outside, the defendant appeared nervous, Deputy Jensen was alone, and he had knowledge that the defendant was involved with the manufacture of methamphetamine and that firearms are considered the tools of the drug trade. See United States v. Douglas, 964 F.2d 738, 741 (8th Cir. 1992) (holding that police officer's pat-down search of defendant after investigatory stop was justified because the officer was warranted in his belief that his safety was in danger in light of the fact that it was late at night, he was alone with defendant in dimly lit parking lot, and defendant was wearing long coat which could have concealed a weapon). Further, before Deputy Jensen began the pat-down, he asked the defendant if he could pat him down and the defendant responded "sure" and he never objected or protested the pat-down at any time. Therefore, the court concludes that the circumstances presented here give rise to a reasonable, articulable suspicion which would warrant a pat-down search of the defendant.
Search of the Milk Sample Bottle
The defendant does not have standing to object to the search of the milk sample bottle. At the time it was searched, it was properly considered to have been abandoned. It is well established that the warrantless search of abandoned property does not constitute an unreasonable search and does not violate the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 241 (1960). "This is because `[w]hen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.'" United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994) (quoting United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983)).
Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. "Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered." United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) (citations omitted). "The issue is not abandonment in the strict property right sense, but rather, whether the defendant in leaving the property had relinquished his reasonable expectation of privacy so that the search and seizure is valid." Id. (citations omitted).
In this case, the defendant allowed Deputy Jensen to examine the milk sample bottle he had in his pocket. Although the defendant had initially claimed ownership of the bottle, he subsequently denied ownership of it after Deputy Jensen recovered it near where the defendant's truck was parked. The defendant claimed his bottle was in his truck and that his bottle was green, not blue like the one Deputy Jensen found behind the patrol car. The defendant did everything he could to distance himself from the bottle at issue here. See United States v. Thompkins, 998 F.2d 629, 632 (8th Cir. 1993). The defendant had no basis to contest Deputy Jensen's search because he abandoned his interest in the bottle by denying ownership of it. See United States v. Sanders, 130 F.3d 1316, 1317 (8th Cir. 1997) (stating that when defendant disclaimed ownership of suitcase, he surrendered any legitimate expectation of privacy he had in the bag). The location of a milk sample bottle, just like the one the defendant had in his shirt pocket, near the defendant's truck did, however, establish a nexus between the bottle and the defendant. See United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir. 1995). The seizure of the bottle by Deputy Jensen did not violate the Fourth Amendment, as the defendant had no legitimate expectation of privacy in the ground near his truck. Accordingly, the defendant does not have standing to challenge the search.
Search Warrant
The defendant contends that probable cause did not exist for the search warrant obtained on January 9, 2003 and therefore, the evidence gathered pursuant to that search warrant should be suppressed. Because the evidence sought to be suppressed was gathered pursuant to a search warrant, the court employs the standard set forth in Illinois v. Gates to determine the existence of probable cause. The United States Supreme Court provided the standard an issuing judge must follow in determining whether probable cause supports an application for a search warrant and, consequently, the duty of the reviewing court when considering the propriety of that determination:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983). "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusion of others." Id. at 239. However, it is clear that only the probability, and not a prima facie showing, of criminal activity is required to establish probable cause. Id. at 235 (citation omitted).
This court does not review the sufficiency of an affidavit de novo. An issuing judge's "determination of probable cause should be paid great deference by reviewing courts." Id. at 236 (citation omitted). The question presented on review of an issuing judge's determination is not whether the reviewing court would have issued the warrant based on the affidavit as presented, but whether the court which did issue the warrant had a "`substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39 (citation omitted).
The affidavit in this case did provide a substantial basis for the issuing judge to determine that there was probable cause that officers would find controlled substances or drug-related items at the defendant's residence. The affidavit contained information gathered from Ms. Gruber that she saw items related to the manufacture of methamphetamine while she lived at the defendant's house, for example, she observed plates of white powder in the house in front of the heat vents. The affidavit also contained information that concerned citizens of Stacyville told police that the defendant's activity was common knowledge. When Deputy Jensen pulled the defendant over, the defendant was going to work at 4:45 a.m., which suggests he had just left his house. Finding methamphetamine on the defendant's person together with the evidence of methamphetamine manufacturing in his house within the past year and information from his neighbors is enough to establish probable cause to search the defendant's residence. The court finds that the affidavit, taken as a whole, shows probable cause.
In any event, the good faith exception to the exclusionary rule prohibits suppression of this evidence. Pursuant to United States v. Leon, in the absence of an allegation that the issuing judge abandoned a neutral and detached role, suppression is appropriate only if the affiant was dishonest or reckless in preparing the affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. United States v. Leon, 468 U.S. 897, 921 (1984). In Leon, the United States Supreme Court noted the strong preference for search warrants and stated that "`in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.'" Id. at 914 (quoting United States v. Ventresca, 380 U.S. 102, 106 (1965)).
"[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," . . . for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has acted in "good faith in conducting the search." . . . Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, . . . and it is clear in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.Id. at 922-23 (internal citations omitted).
Pursuant to Leon, suppression remains an appropriate remedy: (1) where the magistrate issuing a warrant was mislead by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth, Franks v. Delaware, 438 U.S. 154 (1978); (2) where the issuing magistrate wholly abandons the judicial role and becomes a "rubber stamp" for the government; (3) where the officer relies on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid. In Leon, the remedy of suppression was not ordered despite the fact that the affidavit in that case did not establish probable cause to search the residence in question. The standard announced inLeon is an objective standard.
The officers here could certainly have relied on the magistrate's assessment of probable cause. The court cannot say the officers executing the search warrant at issue here either had knowledge, or properly could be charged with knowledge, that the warrant was not supported by probable cause. The warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. at 923 (citations omitted). The court finds that the officers relied on the search warrant in an objectively reasonable manner. Suppression based on a lack of probable cause is not appropriate here.
Search of Outbuildings and Yellow Truck
The defendant also objects to the search of the outbuildings and yellow truck because they were not specifically listed in the search warrant. In this case, the search warrant authorized officers to search:
The residence of 2317 465th St. Stacyville Ia. A white two story wood framed home with an attached two stall garage on the north side. A blue 1988 For Bronco license 104KZD. A gold 1980 Chevrolet Monte Carlo license 284 KZC. A black 1970 Chevrolet Malibu license 509 JNA. A 1993 Chevrolet S10 987 MDA.
The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible. The Eighth Circuit Court of Appeals has instructed that "a search warrant must describe the items to be seized with sufficient particularity: `the language must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized.'" United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995) (quoting United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir. 1992). This mandate circumscribes the scope of a search and seizure as well as safeguards an individual's privacy interest against "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (citations omitted). Nothing is meant to be left to the discretion of police officers executing the warrant. Stanford v. Texas, 379 U.S. 476, 485 (1965) (citing Marron v. United States, 275 U.S. 192, 196 (1927)).
Here, the warrant stated the defendant's physical address and described his residence. It also specifically described four vehicles to be searched. There is no problem with particularity with this search warrant. The language used in the warrant specifically authorized the search of the defendant'sresidence and four vehicles, not his premises or his property. The cases cited by the government in support of its contention that the search of the outbuildings and the yellow truck was permissible involve search warrants describing the property to be searched as the "premises" or the "property." Had the warrant in this case authorized a search of the "premises," for example, the search of the outbuildings and yellow truck would have been permissible. However, this search warrant described the property to be searched as "the residence of. . . ." Although it is a close question as to whether the outbuildings and yellow truck were included in this description, the court finds that the officers exceeded the scope of the warrant when they searched them. See U.S. v. Pennington, 287 F.3d 739, 744 (8th Cir. 2002) (en banc) (analyzing the validity of a search describing the property to be searched as "[t]he residence of Doug Pennington who resides at 1049 Butler County Road #480," and further stating, "[t]he residence is a white modular home" and finding "[h]ad the description of the property to be searched ended there, it might be a close question whether the first use of the word `residence' should be broadly construed as meaning `premises,' consistent with the probable cause showing, or narrowly construed as authorizing only a search of the modular home.").
The warrant was issued by the magistrate for exactly what the officers asked for — the defendant's residence and the four vehicles. However, the officers searched beyond the defendant's residence and the four vehicles specified. What happened in this case is precisely what the particularity requirement seeks to prevent — a general rummaging through a person's property by officers using their own discretion in executing the warrant. If the officers wanted to search the defendant's "premises," they should have specified that in their search warrant application. Searching anything but those areas specified in the search warrant exceeded the scope of the warrant and therefore, suppression is proper for all evidence seized from the defendant's outbuildings and from the yellow truck.
IT IS RECOMMENDED that, unless any party files objections to the report and recommendation in accordance with 28 § 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 motion to suppress evidence be granted in part and denied in part.
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).