Opinion
8:03CR197
September 2, 2003.
MEMORANDUM AND ORDER
Introduction
The defendant stands charged in an indictment with conspiracy to manufacture 500 or more grams of a substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(A)(viii). Before the court is the defendant's objection, Filing No. 55, to Magistrate Judge Thalken's report and recommendation, Filing No. 53. Magistrate Judge Thalken recommends that this court deny the defendant's motion, Filing No. 28, to suppress evidence seized during the search of an apartment where Nelson was a guest on February 18, 2003, and to deny defendant's motion, Filing No. 29, to suppress statements made during an interview with law enforcement officials on February 21, 2003. The defendant's objection is supported by a brief. Filing No. 56. The government did not respond to the defendant's objection.
Standard of Review
Under 28 U.S.C. § 636(b)(1)(C), the court makes a de novo determination of those portions of the report or recommendation to which the parties object. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has conducted a careful de novo review of the record, including the transcript of the suppression hearing, Filing No. 46. The court finds the report and recommendation is neither contrary to law nor clearly erroneous. Therefore, the court will adopt the report and recommendation in its entirety and deny the defendant's motions to suppress.
Background
The court will specifically adopt the magistrate's factual findings and forego a lengthy rehearsal of the events leading to the seizure of evidence and the defendant's statements at issue. See Filing No. 53 at 1-8.
Briefly, on February 18, 2003, Officers Kemp and Story went to investigate the apartment in question after receiving a tip from a confidential informant ("CI") that the apartment's occupants might be manufacturing methamphetamine. Upon arrival, the officers observed a vehicle containing several items which the officers knew to be involved in the manufacture of methamphetamine. At the door of the apartment, the officers learned that the owner of the car was present, along with defendant, whom Officer Kemp knew was suspected of methamphetamine manufacturing and distribution. The officers also noticed the smell of acetone or ether emanating from the apartment. The occupants refused to consent to a search of the apartment, so Officer Kemp filed an affidavit and application for a search warrant for both the apartment and the vehicle. The affidavit related information from the CI, the officers' observations at the apartment, and Officer Kemp's knowledge of the defendant's methamphetamine involvement, among other facts. Based on the affidavit, a state court judge issued a search warrant. The defendant seeks to suppress evidence from the ensuing search of the apartment and the car.
Officer Kemp arrested the defendant on a Kansas warrant during his initial visit to the apartment. Officer Kemp attempted to interview the defendant later the same day and read her a rights advisory form, but the interview ended when the defendant decided not to talk to him. Three days later, on February 21, Investigator Shelton interviewed the defendant. Officer Shelton read the defendant a rights advisory form, placed a check mark beside each right after defendant replied that she understood the right, and then allowed the defendant to read the form. The defendant read the form, signed the waiver of rights, and gave a statement, which she now seeks to suppress.
Analysis
A. Search of the Apartment
The defendant contends the magistrate judge erred in finding 1) that the information in the affidavit was sufficient to establish probable cause, and 2) that the officers' reliance on the warrant was objectively reasonable under the good faith exception of United States v. Leon, 468 U.S. 897 (1984). Specifically, the defendant contends that there was "no corroboration of the information provided by the confidential informant showing any actual criminal activity afoot in the apartment" and that the "affidavit and application were so lacking in probable cause that a reasonable officer should not have relied upon the warrant." Filing No. 56, Defendant's Brief at 5-8. These arguments are without merit. Because the court agrees with the magistrate judge's analysis concerning the search, the sufficiency of the warrant, and the good faith exception, only a supplemental analysis is necessary to address defendant's probable cause objections.
According to the affidavit, a confidential informant informed Officer Kemp about the smell of muriatic acid in the apartment. Filing No. 46, Transcript, Ex. 1 at 1 (hereafter "TR"). The informant also indicated that the officers would find components used to manufacture methamphetamine in a car belonging to Tony Martin. Id. The informant further advised Kemp that the defendant was in the apartment. Officer Kemp was aware of other information about the defendant's involvement in other methamphetamine labs. Id. at 1-2. Based on this information and knowledge, Officer Kemp and Detective Story went to the area of Tony Martin's car. Id. at 2. After observing in the car items involved in methamphetamine manufacture, the officers went to the apartment and learned that Tony Martin and Diane Nelson were in the apartment. Id. While outside the apartment, the officers smelled either acetone or ether, either one of which Officer Kemp knows is a component in the manufacture of methamphetamine. Id. at 3.
"[T]he odor of an illegal drug can be highly probative in establishing probable cause for a search." United States v. Caves, 890 F.2d 87, 90-91 (8th Cir. 1989); United States v. Johnson, 333 U.S. 10, 13 (1948) (odor of an illegal substance testified to by a qualified affiant "might very well be found to be evidence of a most persuasive character"). The Eighth Circuit has consistently held that odor of an illegal substance itself is sufficient for probable cause. See United States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000) (smell of marijuana sufficient for probable cause); United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999) (same); United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998) (same). Yet despite these precedents, the defendant attacks the sufficiency of the affidavit on the grounds that the officers had neither actual evidence of controlled substances in the apartment nor any solid information that methamphetamine was being manufactured in the apartment. The defendant argues that the only information from the informant about the apartment was the alleged smell of a hydrocarbon; the informant did not indicate where the smell emanated from, and the officers had no corroborating information showing any actual criminal activity on the premises.
When determining probable cause, the court evaluates all the facts for their cumulative meaning rather than independently evaluating each piece of information. United States v. Nation, 243 F.3d 467, 470 (8th Cir. 2001) (citing United States v. Morales, 923 F.2d 621, 623-24 (8th Cir. 1991)). The relevant inquiry in the determination of probable cause "is not whether particular conduct is innocent or guilty, but the degree of suspicion attached to particular types of noncriminal acts." Nation, 243 F.3d at 470 (citing Illinois v. Gates, 462 U.S. 213 (1983)). The specific circumstances of the case can create sufficient suspicion of criminal activity to support a finding of probable cause. Nation, 243 F.3d at 470.
In the present case, both officers smelled acetone or ether emanating from the apartment. The odor of ether, coupled with other facts, is sufficient to establish probable cause of methamphetamine production. United States v. Ryan, 293 F.3d 1059, 1062 (8th Cir. 2002); United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000); United States v. Kleinholz, 2003 WL 21800699 (8th Cir.). In Ryan, the Eighth Circuit found the smell of ether, a person's report of drugs being in the house, and the owner's previous record were facts sufficient to show probable cause. Ryan, 293 F.3d at 1062. Here, the odor, coupled with the items viewed by the officers in the car, the presence of the car owner in the apartment, and the presence of the defendant — a known methamphetamine manufacturer and distributor — in the apartment, are facts sufficient to create strong suspicion that criminal activity was taking place inside the apartment. Given the totality of the circumstances, the officers had probable cause for suspecting that methamphetamine was being produced in the apartment. Accordingly, the defendant's objection to the magistrate judge's finding of probable cause in the report and recommendation is overruled.
B. Statements
The court agrees with the magistrate judge's conclusions and analysis with respect to the defendant's motion to suppress the statements she made during the interview of February 21, 2003. The defendant contends she signed the consent form on the 21st because she thought she had to, but that she was not aware of the rights she was waiving nor the possible use of her statements. However, the defendant had invoked her rights three days earlier and denied an interview with Officer Kemp after he read her a similar rights advisory form.
According to testimony, both Kemp and Shelton read the defendant each right and asked if she understood the right. On both the 18th and the 21st, the defendant indicated she understood each right. Nothing in the record suggests the officers engaged in any coercive, heavy-handed conduct that might support a finding that the defendant's consent and waiver on February 21 were involuntary.
Furthermore, the defendant's argument that she was ignorant of her rights is unpersuasive. Before she made the incriminating statements, the defendant had been read a rights advisory form twice in three days. On both occasions, the defendant replied that she understood each right. On the 18th, the defendant actually invoked her rights and refused an interview with Kemp. Although the defendant testified at the suppression hearing that she had been ill on the 21st, it is hard to believe that the defendant forgot the rights which had just been read to her and which she had invoked just three days earlier.
The government has shown that the defendant's waiver of rights and her following statement were knowing, intelligent, and voluntary. Accordingly, the court adopts this portion of the report and recommendation in its entirety and overrules the defendant's objections.
IT IS THEREFORE ORDERED:
1. The defendant's objection, Filing No. 55, to the report and recommendation, Filing No. 53, is overruled;
2. The report and recommendation, Filing No. 53, is adopted in its entirety; and
3. The defendant's motions to suppress, Filing Nos. 28 and 29, are denied.