Opinion
No. 1:04-CR-139.
January 26, 2005
MEMORANDUM AND ORDER
I. Introduction
Defendant, Titus A. Reed ("Reed"), owns three parcels of real estate in a remote portion of the Cumberland Plateau in Eastern Tennessee. He is charged in this case with, inter alia, growing marijuana on, or near, each of these real estate parcels. On September 3, 2004, law enforcement officers obtained from a United States Magistrate Judge a warrant to search each of the parcels, and each parcel was subsequently searched. In a motion to suppress [Court File No. 19] Reed challenges these searches. In that same motion, Reed requested this Court to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). Following the filing of the government's response [Court File No. 25], the Court held a hearing on Reed's motion on January 6, 2005. This memorandum and order constitutes this Court's disposition of Reed's motion.
II. Facts
The three parcels of real estate at issue are the following:
(1) The Old Grandview Highway property, which is located in Rhea County, Tennessee. This is where Reed resided in a log cabin home located on a long driveway. There are also a garage and outbuildings on this property, which consists of approximately 65 acres.
(2) The Baker Lane property, which is located in Rhea County, Tennessee. Reed owns this tract consisting of about 159 acres located behind a gate at the end of a dirt road. There is an unoccupied cabin as well as a pond on this land. The property can be reached through the woods over rough terrain from the Grandview Highway property at a distance of approximately three and a half miles.
(3) The Sabo Road property, which is located in Bledsoe County, Tennessee. This 200 acre tract is located 7 to 10 miles from the Old Grandview Highway property. It contains a vacant house, and consists of approximately 200 acres, about 75 % of which is open fields.
III. Analysis (a) The marijuana patches
The Baker Lane property
When searching in and around this property, law enforcement officers found several patches of marijuana. However, Reed has made no showing as to whether or not these marijuana patches were located on his property. During the January 6, 2005 suppression hearing, Rhea County Sheriff, Mike Neal, testified that he was unable to state whether the marijuana was actually on Reed's property. All that is certain is that the marijuana patches and, possibly other marijuana, was growing either on or near the Baker Lane property; and at least some of it was growing at a location in sight of the cabin and barn.The Sabo Road property
Law enforcement officers also found marijuana growing on or near this property. However, at the January 6, 2005 suppression hearing, Sheriff Mike Neal again testified that he was unable to say with any degree of certainty that the marijuana was actually on Reed's land; and, again, Reed has made no showing that it was. The affidavit in support of the search warrant for the Sabo Road property only states that the marijuana/marijuana patches appeared "to be on or very close to" Reed's property line.
The Old Grandview Highway Property
There were also several patches of marijuana found in this area. Again, there is not evidence from which this Court can make a decisive determination as to whether or not any of this marijuana was actually located on Reed's property. The affidavit in support of the search warrant for the Old Grandview Highway property again merely asserts that these patches were "near" or "just beyond" the property line.
With regard to the marijuana/marijuana patches seized from the Old Grandview Highway property, the Baker Lane property, and the Sabo Road property, Reed has not established and, based upon the evidence, the Court is unable to determine whether the marijuana patches were actually on, or merely near, Reed's property. To the extent, however, that the marijuana/marijuana patches were near, but not actually located on of Reed's property, Reed lacks standing to challenge the seizure of the marijuana from the marijuana patches by law enforcement officers on September 3, 2004.
A criminal defendant has standing to challenge a search if the defendant proves that the search was illegal and that he "had a legitimate expectation of privacy in the property." United States v. Bivens, 172 F.3d 874, 1999 WL 71996, * 5 (6th Cir. 1999) (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1998)). However, a defendant cannot have evidence suppressed on Fourth Amendment grounds "unless the breached privacy expectation was his own rather than that of a third party." Id. (citing Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425-26, 58 L.Ed.2d 387 (1978)). When at the time of the search the defendant "neither owned nor occupied . . . nor had any dominion or control over the" property, he "has no standing to contest the search of the [property]." Id. (citing United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990)).
Moreover, even assuming arguendo that the marijuana plants/marijuana patches seized on September 3, 2004, were on property owned by Reed, these marijuana plants/marijuana patches were in wooded areas or in open fields well beyond the curtilage of Reed's properties. Thus, under the "open fields" doctrine, Reed had no legitimate expectation of privacy that the area where the marijuana plants/marijuana patches were found on September 3, 2004, would remain free from warrantless intrusion by the police. See Oliver v. United States, 466 U.S. 170, 181-82 (1984).
"[T]he special protection accorded by the Fourth Amendment to the people in their `persons, houses, papers, and effects,' is not extended to the open fields." Oliver, 466 U.S. at 177; 104 S. Ct. at 1740 (citing Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L.Ed 898 (1924)). A governmental intrusion upon a "open field" is not an "`unreasonable search' proscribed by the text of the Fourth Amendment." Id.
Thus, the Fourth Amendment protection extends to the curtilage, but not to open fields. Oliver, 466 U.S. at 180, 104 S. Ct. at 1742. The Supreme Court has stated that the term "open fields" does "include any unoccupied or undeveloped area outside the curtilage." Id. at n. 11. For purposes of a Fourth Amendment analysis a thickly wooded area falls within the "open field" exception. Id. Finally, the Court in Oliver explicitly rejected a case-by-case analysis to determine whether a property owner had a legitimate expectation of privacy in an "open field." The Oliver Court stated:
Nor would a case-by-case approach provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Under this approach, police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an areas sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on "`[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions . . .Oliver, 466 U.S. at 181, 104 S. Ct. at 1743 (quoting New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2869, 2863, 69 L.Ed.2d 768 (1981)).
Further, factors to be considered in determining whether an area falls within the curtilage, and, therefore, with the protection of the Fourth Amendment are: "the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing." United States v. Curtis, No. 1:03-cr-073, 2003 WL 21949131, *3 (E.D. Tenn. June 27, 2003) (quoting United States v. Dunn, 480 U.S. 294 (1987)). Generally, the backyard of a home is within the curtilage and is a constitutionally protected area. Id. (citing Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir. 1988)).
Based upon the evidence presented at the January 6, 2005 suppression hearing, particularly, the testimony of Sheriff Mike Neal, and the exhibits, including numerous photographs and a videotape narrated by Lee Reed, defendant Reed's brother, the Court finds that assuming arguendo that any of the marijuana plants/marijuana patches seized on September 3, 2004, were on Reed's property, they were not within the curtilage of any of the three parcels of real estate. The marijuana plants/marijuana patches were, therefore, in open fields and Reed had no legitimate expectation of privacy.
Based upon Sheriff Neal's testimony, the marijuana plants/patches were essentially located in wooded, or densely wooded, areas on the edge of fields on or near the three parcels. The marijuana plants/patches were accessible primarily on foot or by four-wheeler via trails which ran up and down ridges through wooded and densely wooded areas. The photographs and the videotape which were presented at the January 6, 2005 hearing confirmed that the area where the marijuana plant/marijuana patches were found was wooded and, in many places, densely wooded.
Therefore, that aspect of Reeds motion to suppress [Court File No. 19] which seeks to suppress the marijuana plants/marijuana patches seized on or near the Old Grandview Highway property, the Baker Lane property, and the Sabo Road property is DENIED. (b) Evidence other than marijuana/marijuana patches
On each of the aforementioned parcels, law enforcement officers found evidence other than live and growing marijuana plants. On the Baker Lane and Sabo Road properties they apparently located some wire screen, marijuana stalks, and bags of lime. At Reed's residence on the Old Grandview Highway property, they found dried marijuana, baggies, marijuana stalks, twine, four firearms, $5000 in currency; a marijuana grower's guide, scales, and a ball cap endorsing the "Governor's Task Force Marijuana Eradication." As these items were found in homes, buildings or property owned by Reed, there is no standing issue. Rather, the issue here is whether there was probable cause for search warrant issued on September 3, 2004, by the United States Magistrate Judge. Each of these warrants is supported by an identical affidavit, a copy of which is attached to and made a part of this memorandum and order as Exhibit A.
"Probable cause for the issuance of a search warrant is defined in terms of whether the affidavit sets out facts and circumstances which indicate `a fair probability that evidence of a crime will be located on the premises of the proposed search.'" United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993) (citing United States v. Bowling, 900 F.2d 926, 930 (6th Cir.), cert. denied, 498 U.S. 837 (1990), quoting United States v. Algie, 721 F.2d 1039, 1041 (6th Cir. 1983)). "A magistrate's probable cause determination should be made in `realistic and commonsense fashion,' and reviewed in the same manner." Finch, 998 F.2d at 352 (quoting Algie, 721 F.2d at 1041). In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983), the "Court adopted a `totality-of-the circumstances approach' to determine the existence of probable cause, noting that probable cause is a `practical nontechnical conception' that deals with `the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.'" United States v. Pelham, 801 F.2d 875, (6th Cir. 1986), cert. denied, 479 U.S. 1092 (1987) (quoting Gates, 462 U.S. at 230-31, 103 S. Ct. at 2328-29 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1311 (1949)).
In this instance, the supporting affidavits for the search warrants clearly establish probable cause for the issuance of the search warrants on September 3, 2004. In addition to general information about drug trafficking, particularly marijuana growing in paragraphs 1 through 3, paragraphs 4 and 5 set forth the fact that Reed owns the Baker Lane property, the Old Grandview Highway property and the Sabo Road properties. Paragraph 6 of the supporting affidavits sets forth a more detailed description of the three properties.
Paragraph 7 of the affidavits sets forth the relevant observations of the law enforcement officers regarding the Baker Lane property. In addition to other information, paragraph 7 relates that on September 2, 2004, Sheriff Mike Neal saw a marijuana patch located approximately 100 to 150 yards from the cabin on the Baker Lane property; and, that from another vantage point, Neal saw marijuana growing throughout the open fields on the Baker Lane property. Further, paragraph 7 states that Neal had observed trails leading from the barn on the Baker Lane property to the marijuana.
Likewise Paragraph 8 of the affidavits sets forth the relevant observations of the law enforcement officers regarding the Old Grandview Highway property. In addition to other information, the affidavits state that on August 4, 2004, Sheriff Neal, and other law enforcement officers, found two patches of marijuana in wooded acreage just beyond the property line of the Old Grandview Highway parcel; and, that on August 31, 2004, Sheriff Neal, and other officers, found another patch of about 200 marijuana plant near the property line of the Old Grandview Highway parcel. Further, Paragraph 8 related that there were trails leading from the three marijuana patches back onto Reed's Old Grandview Highway parcel. Paragraph 8 also related that a retired Rhea County Deputy Sheriff had recently observed Reed operating a dune-buggy type vehicle near one of the patches of marijuana plants on the Old Grandview Highway property; and, that Neal had been told by a confidential informant that in the 30-days prior to the date of the affidavits he had seen Reed driving a four-wheeler in the same vicinity.
Paragraph 10 of the affidavits describes the observations of the law enforcement officers concerning the Sabo Road property. Specifically, the affidavits state that during the week of August 23, 2004, Neal was told by a citizen, who was in the woods searching for ginseng, that the citizen had observed a patch of marijuana plants on or very close to the property line of the Sabo road property.
Paragraph 12 relates that Sheriff Neal had received information from a Rhea County employee — not a law enforcement officer — who knew Reed, that Reed had not been gainfully employed for several years. Paragraph 13 relates that on August 30 and August 31, 2004, a Hamilton County, Tennessee, law enforcement officer had observed two or three patches of marijuana plants growing near the property line of the Old Grandview Highway parcel. The affidavits further relate that the plants were unusual for East Tennessee, in that they had been pruned of most of their leaves — a practice which is designed to make marijuana plants difficult to spot from the air.
Paragraph 14 of the affidavits relates that in 1997 Reed had been arrested for possession of marijuana; that numerous firearms had been seized at the time of the arrest; and that Reed had been charged with the sale and delivery of less than one-half ounce of marijuana. It also related that in 1988, 60 pounds of marijuana had been seized by Rhea County law enforcement officers, resulting in Reed being charged with felony possession of marijuana with the intent to sell. Reed pled guilty to the offense and received a one-year suspended sentence and three-years probation. Finally, paragraph 14, also relates that Reed was arrested in Franklin, Tennessee, in 1991, and charged with possession of marijuana for resale and conspiracy to distribute marijuana.
In United States v. Carpenter, 360 F.3d 591 (6th Cir.), cert. denied, 125 S. Ct. 261, 73 U.S.L.W. 3209 (2004), law enforcement officers obtained a search warrant based upon an affidavit which first set forth a description of the property for which the search warrant was sought and stated:
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., 360 F.3d at 592.
The Sixth Circuit held that the affidavit as described above was insufficient to establish probable cause stating:
The facts that marijuana was growing "near" the residence and that a road ran nearby fall short of establishing the required nexus between the [defendants'] residence and evidence of marijuana manufacturing. If [the] affidavit had stated that beaten paths led from the marijuana patches to the door of the residence, and that [the defendants] had been spotted walking from the marijuana patches, the affidavit would likely have been sufficient to establish probable cause.Id. at 594.
The affidavits in support of the search warrants in this action, are sufficient to establish probable cause. The affidavits recited that several patches of marijuana plants had been found on or near three parcels of land owned by Reed; that various trails criss-crossed the land and that some of those trails led from the marijuana patches on or near the Baker Lane property to the barn on the Baker Lane property; and, that some of those trails also led from the marijuana patches on or near the Old Grandview Highway property — on which Reed resided — to the residence on the Old Grandview Highway. The affidavits further recited that on two occasions, two different individuals — one a retired law enforcement officer and the other a confidential informant — had witnessed Reed driving vehicle — either a dune-buggy or other four-wheel type vehicle — in the vicinity of one of the marijuana patches on or near the Old Grandview Highway property. Finally, the affidavits also related that based information related to Sheriff Neal, Reed had not been gainfully employed for several years and, he had also been arrested on marijuana related offenses — two of which involved charges of possession of marijuana with intent to distribute — on three prior occasions.
Thus, the Court finds that the affidavits in support of the search warrants do establish probable cause for the three parcels of land — the Old Grandview Highway property, the Baker Lane property, and the Sabo Road property — on September 3, 2004.
In its response to Reed's motion to suppress and for a Franks hearing, the government argues that assuming arguendo that the affidavits were deficient to establish probable cause for the searches of the three parcels of real estate, the September 3, 2004 searches were performed in good faith based upon substantial affidavits and the evidence seized should not be suppressed based upon the good-faith exception found in United States v. Leon, 468 U.S. 897 (1984).
As set forth in detail above, the Court has concluded that Agent Corbitt's affidavits were not deficient and that there was more than ample probable cause for the search of the Old Grandview Highway parcel, the Baker Lane parcel and the Sabo Road parcel on September 3, 2004. However, assuming arguendo that the Court had found that the affidavits were lacking in probable cause, they clearly were not "so lacking" in probable cause as to render a good-faith reliance on the search warrants issued pursuant to the affidavits unreasonable. United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998).
Furthermore, the search warrants and the supporting affidavits in this case do not fall within any of the specified situations which preclude the application of the Leon good-faith exception. Agent Corbitt's affidavits in support of the search warrants were not so lacking a any indicia of probable cause so as to render official belief in the existence of probable cause unreasonable; the lengthy affidavits in support of the applications for the search warrants were not "bare bones" affidavits as they provided considerable information about the underlying factual circumstances, including veracity, reliability and basis of knowledge; and the search warrants were not so facially deficient that the executing officers could not reasonably presume them to be valid United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004) (quoting Van Shutters, 163 F.3d at 337). Id. Finally, there has been no claim and no evidence which even remotely suggests that the magistrate judge who issued the search warrants wholly abandoned his judicial role in issuing the warrants. Id.
Accordingly, that aspect of Reed's motion to suppress which seeks to suppress the evidence seized on September 3, 2004, other than the marijuana plants from the patches of marijuana [Court File No. 19] is DENIED. (c) The Franks hearing
Defendant, Titus Reed, requests this Court to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), to determine whether the affidavits of TBI Special Agent Marnie Corbitt in support of the three search warrants omitted material facts in reckless disregard of whether the omissions would mislead a magistrate as to the true nature of the circumstances justifying the search.
In this instance, the Court concludes that defendant is not entitled to a hearing pursuant to Franks. The Sixth Circuit has stated:
A defendant who challenges the veracity of statements made in an affidavit that formed the basis for a warrant has a heavy burden. He must point to specific false statements that he claims were made intentionally or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L.Ed.2d 667 (1978); United States v. Barone, 584 F.2d 118, 121 (6th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S. Ct. 1019, 59 L.Ed.2d 73 (1979). He must accompany his allegations with an offer of proof. Moreover, he should also provide supporting affidavits or explain their absence. Franks, 438 U.S. at 171, 98 S. Ct. at 2684. If he meets these requirements, then the question becomes whether, absent the challenged statements, there remains sufficient content in the affidavit to support a finding of probable cause. Id.
If probable cause exists absent the challenged statements, a defendant is entitled to no more; however, if such cause does not exist absent the challenged statements, he is entitled to a hearing if he requests one. He must show at the hearing, by a preponderance of the evidence, that false statements were made either intentionally or with reckless disregard for the truth and that without these statements there is insufficient content in the affidavit to support a finding of probable cause. If he makes this showing, the evidence should be suppressed. Id. 438 U.S. at 155-56, 98 S. Ct. at 2676.United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
Here, defendant has not made the strong preliminary showing required for a Franks hearing. In this case, there are only several things in the supporting affidavit which appear to be incorrect. First, page 7 of the affidavits states that, "On September 2, 2003, Rhea County Sheriff, Mike Neal, also observed a small cabin and a pond" on Reed's Baker Lane property. [Government Exhibit 6]. At the January 6, 2005 hearing, Agent Corbitt admitted that this is a typographical error and that the date should in fact be on September 2, 2004, not 2003. The fact that the date should be 2004, not 2003, is clearly evident from the context of all of the other dates set forth in the 12 page affidavit. Further, the typographical error could not have mislead the magistrate judge into finding probable cause and there is no reason to believe it was intentional.
Reed also complains about the statement set forth in paragraph 11, on page 9 of the affidavit that "utility records for the three parcels described above show that there is electricity at all three locations, and the service at all three locations is in Reeds name." Id. At the January 6, 2005 suppression hearing, Marnie Corbitt testified that the aforesaid information came from Sheriff Mike Neal, who apparently checked the property tax assessments for all three real estate parcels; and, the property tax assessments indicated that there was electricity on all three parcel and that it was in Reed's name. The records from the Volunteer Electric Cooperative, which is the electric utility which provides service to the three parcels indicated that the electricity on the Sabo Road property is in the name of Curtis Cochran, the previous owner of that real estate parcel. It further appears from the testimony elicited from the defendant's brother, Lee Reed, that there is no electric service to the small cabin on the Baker Lane property.
However, there is no dispute as to the fact that Reed owns all three parcels of real estate. Morever, this is not a situation where it was alleged in the affidavit in support of the search warrant that Reed was, for instance, alleged to be operating a marijuana greenhouse in one of the buildings on the three parcels. Rather, the allegation in support of the search warrant was that law enforcement officers had found marijuana plants/marijuana patches growing in densely wooded areas or in open fields on or near the three parcels of land. Thus, whether or not the electric service to the brick house on the Sabo Road property was in Reed's name, was immaterial to the finding of probable cause. Thus, the statement that the property tax assessment for the Sabo Road property showed that the electric service to the house on that property was in Reed's name — assuming arguendo that such statement was actually false — could not have been intended to mislead the magistrate judge into finding probable cause.
Finally, Reed complains about statements made in paragraph 10, page 12 of the affidavit in support of the search warrant. This statement pertains to a 47.82 acre parcel of wooded land in Cumberland County, Tennessee. The relevant statement is that "On September 2, 2004, officers saw Reed on a four wheeler adjacent to this Cumberland county parcel. From Smith Mountain Road, which goes by this parcel, officers could see Reed's two story barn." At the January 6, 2005 suppression hearing, there was testimony that at the time Sheriff Neal believed that the barn was on Reed's property, but in fact the barn is not on Reed's property. The Court finds that this statement was not intentionally or recklessly made with the intent to mislead the magistrate judge into a finding of probable cause. Moreover, the Cumberland county parcel was not the subject of the search warrant and it was not searched on September 3, 2004.
In this instance, none of the statements in the affidavits supporting the applications for the search warrants, which are alleged to be false and or misleading, considered separately or together, are sufficient to satisfy Reed's heavy burden in establishing his right to a Franks hearing. None of the allegedly false or misleading information — assuming such information is false or misleading — was critical to the finding of probable cause. Moreover, there is no indication that any statements in the affidavits were either intentionally made or made with reckless disregard for the truth of the statements. A review of the affidavits reveals that the affidavits were carefully drafter, indeed, Agent Corbitt made an effort to indicate to the magistrate judge that the law enforcement officers were not sure which of the marijuana plants/marijuana patches were actually on Reed's property. Accordingly, that aspect of Reed's motion [Court File No. 19] which seeks a Franks hearing is DENIED. Conclusion
For the reasons stated above, it is ORDERED that defendant Reed's motion to suppress [Court File No. 19] is DENIED; and his request for a Franks hearing [Court File No. 19] is DENIED.