Opinion
Case No. 2:02-CR-459 W
April 22, 2003
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the court on Defendant's Motion to Suppress all evidence discovered pursuant to a search warrant issued on December 19, 2001. As a result of the search, the defendant has been indicted on one count of possession of marijuana with intent to distribute; one count of possession of cocaine with intent to distribute; and one count of possession of a firearm during and in relation to a drug trafficking crime.
On March 27, 2003, the parties agreed to submit the matter to the court based upon written briefs filed prior to that date. Defendant Wilfredo Rivera ("Rivera") was represented by Ronald J. Yengich. The government was represented by Leisha M. Lee-Dixon. After thoroLigh review and consideration of the briefs submitted by the parties the court enters the following memorandum decision and order.
BACKGROUND
On December 19, 2001, Detective Troy Anderson of the Salt Lake City Police Department prepared an "Affidavit for a Search Warrant" and applied for a warrant to search the residence located at 1995 So. 300 East in Salt Lake City, Utah.
In the affidavit, under the heading, "Facts to Establish the Grounds for Issuance of a Search Warrant," Detective Anderson began with a recitation of his experience and training during his four years as a police officer. Anderson reported that he was currently assigned to the narcotics unit, and that during his time with the narcotics unit he has been involved in over 150 drug related investigations, some of which included search warrants, drug buys, and other drug related operations. Detective Anderson explained that he has received special training in narcotics identification and interdiction, clandestine lab investigation, and counter intelligence.
Next, Detective Anderson set forth information received from two independent informants indicating that the occupants of the listed residence were engaging in an ongoing narcotics distribution operation. Detective Anderson described the first informant as a "concerned citizen," who reported observing a high volume of constant short-term, short-stay traffic at the residence. The "concerned citizen" further indicated that this traffic was ongoing throughout the day and night. Detective Anderson explained that the second independent informant provided information via the drug hotline. The second informant also reported that the residence had a constant amount of short-stay traffic. In addition, the second informant reported that the occupants of the listed residence were engaging in the sale of illegal narcotics, in the open, during all hours of the day.
Detective Anderson then detailed the steps he had taken to verify the information provided by the two informants though his independent investigation. Detective Anderson explained that he performed surveillance on the listed residence and personally observed short stay traffic in both the afternoon and evening hours. consistent with the information provided the informants. Moreover, Detective Anderson reported that he had observed such traffic as recently as within the last 24 hours. Detective Anderson indicated that based on his training and experience, short stay traffic is consistent with the sale and distribution of narcotics.
In addition to his surveillance, Detective Anderson performed a "trash cover" at the listed residence on December 5, 2002, the night of the scheduled trash pickup. Detective Anderson reported that within the trash can he found narcotics related items. Specifically, Anderson explained that he found a baggie containing white residue which tested positive for cocaine, and he also found two baggies with the corners torn from them. consistent with the, packaging of cocaine. Anderson recited that through his training and experience he is aware that the corners of baggies are often used to package sellable quantities of illegal narcotics.
Thereafter, Detective Anderson requested authorization for nighttime execution and no-knock entry. Detective Anderson provided the following reasons for his request. First, Detective Anderson explained, in detail, that during the daytime the area surrounding the residence has considerable business as well as neighborhood pedestrian traffic which is greatly' reduced during the evening hours. Detective Anderson explained that he believed it would be safer for business patrons as well as neighborhood residents if the warrant were served in the evening when pedestrian traffic near the residence were reduced. Second. Detective Anderson explained that because the occupants of the residence appeared to be involved in on-going narcotics distribution, it was necessary to get as close to the home as possible, without notice, to prevent the destruction of the narcotics. Third, Detective Anderson explained that physical harm may result from giving prior notice to the occupants of the residence. Detective Anderson stated that "persons living at or otherwise frequenting the listed address are abusing stimulants," and Anderson was aware through his training and experience that persons who use stimulants often exhibit unpredictable, paranoid and potentially violent behavior while under the influence of the stimulant. Anderson explained that he believed the ability to quickly secure the occupants would assist in preventing physical harm to any person during the execution of the warrant. Finally. Detective Anderson stated that a nighttime, no-knock entry was required because he observed behavior consistent with "counter surveillance" activities. Specifically. Detective Anderson reportedly observed people sitting on the porch watching activity near the residence. as well as individuals from the residence walking up and down the street in front of the residence talking on cellular phones. Anderson explained that this pacing back and forth in front of the residence is a common way to conduct counter surveillance and alert the occupants to police presence.
The warrant was granted and signed by a Third District Court Judge that same day. On December 20, 2001, the no-knock, nighttime search warrant was executed at the listed residence. Rivera's home. Rivera contends that all evidence found pursuant to the warrant must be suppressed because the warrant was not supported by probable cause. Specifically. Rivers claims that the information the warrant was based upon (a) came from informants whose reliability or sources of knowledge were not stated in the affidavit, and (b) was stale. Additionally. Rivera contends there was no basis for the no-knock provision in the warrant.
DISCUSSION
1. Probable Cause
Generally, a search must be made pursuant to a warrant based on probable cause. U.S. Const. amend. IV. "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). It requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000). In deciding a suppression motion based upon the asserted failure of the affidavit to provide probable cause for the warrant, the reviewing court must remember that the magistrate is permitted to draw reasonable inferences from the affidavits and that the magistrate's determination is accorded great deference. See United States v. Edmonson, 962 F.2d 1535, 1540 (10th Cir. 1992); United States v. Peveto, 881 F.2d 844, 850 (10th Cir.), cert. denied, 493 U.S. 943 (1989).
To determine whether probable cause exists, the magistrate must make a practical, common-sense determination from the totality of the circumstances presented whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.Id. at 238. In applying this test, the affidavit "should be considered in a common sense, nontechnical manner." Edmonson, 962 F.2d at 1540 (quotingUnited States v. Massey, 687 F.2d 1348, 1355 (10th Cir. 1982)). When reviewing a magistrate's issuance of a search warrant the court must determine whether the magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 236.
A. Informant's Reliability
Rivera claims that the warrant in this case was not supported by probable cause because it was based on information that was provided by informants whose reliability or sources of knowledge were not stated in the affidavit. In Gates, the Supreme Court abandoned the requirement that an officer set forth an informant's reliability in the affidavit. 462 U.S. at 238. Rather, the magistrate or issuing judge should assess an informant's veracity or reliability and basis of knowledge in light of the totality of the circumstances. Gates, 462 U.S. at 230; United States v. Smith, 63 F.3d 956, 961 (10th Cir. 1995), cert. granted and vacated on other grounds, 516 U.S. 1105 (1996); United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992). Veracity and basis of knowledge are not rigid and immovable requirements in the finding of probable cause. "A deficiency in one element may be compensated for `by a strong showing as to the other, or by some other indicia of reliability.'" Corral, 970 F.2d at 727 (quoting Gates, 462 U.S. at 233). The Tenth Circuit has explicitly provided: "[T]here is no need for a declaration of the reliability of an informant when the informant's information is corroborated by other information." United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992); see Smith, 63 F.3d at 961.
In this case, Detective Anderson received initial information from two separate sources or informants. Although he did not set forth the reliability or basis of knowledge of these informants within the affidavit, Detective Anderson's independent investigation sufficiently corroborated the information provided by both. Detective Anderson personally confirmed both informants' allegations of short-term, short-stay traffic at the residence. Similarly, Detective Anderson independently verified and/or confirmed the allegations of narcotics distribution via the trash cover he conducted on the residence. Accordingly, because the informant information was sufficiently corroborated, the fact that the affidavit itself does not declare the reliability or veracity of the informants is immaterial. See Sturmoski, 971 F.2d at 457.
B. Staleness
Next, Rivera claims that the warrant was not supported by probable cause because some of the information which formed the basis for the warrant was over two weeks old and was, therefore, stale. It is true that "[p]robable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched" United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). However, "the determination of timeliness depends not merely on the passage of time but on the nature of the criminal activity, the length of the activity, and the nature of the property seized." Smith, 63 F.3d at 960. "Ongoing and continuous activity makes the passage of time less critical." Snow, 919 F.2d at 1460; see United States v. Pace, 981 F.2d 1123, 1133 (10th Cir. 1992) (when the affidavit contains information of an ongoing criminal activity, the passage of time is not as significant), cert. denied, 507 U.S. 966 (1993); Sturmoski, 971 F.2d at 457 (finding the passage of time not critically important where the offense in question was ongoing and continuing).
The information set forth in Detective Anderson's affidavit indicates that the activity at the residence was ongoing and continuous and consistent with drug trafficking. Both informants independently described ongoing, short-stay traffic at the residence. After receiving this information, on December 5, 2001, approximately 2 weeks prior to the execution of the warrant, Detective Anderson conducted a trash cover on the residence. Thereafter, Detective Anderson conducted surveillance on the residence. He observed counter surveillance as well as short-stay traffic, on more than one occasion, and as recently as within the 24 hours prior to his application for the search warrant. That some of the information which formed the basis for the warrant was approximately two weeks old is not outcome determinative. The Tenth Circuit has specifically rejected an approach which questions whether each piece of information standing alone is stale or could sustain a finding of probable cause. United States v. Glover, 104 F.3d 1570, 1578 (10th Cir. 1997). Rather, the proper approach is to consider the totality of the information in the affidavit. Id. Thus, where drug activities are "ongoing and continuous," considering all the information stated in the affidavit, the passage of time does not render the information stale.United States v. Pierce, 2000 WL 821386, *5 (D. Kan. May 31, 2000) (citing United States v. Myers, 106 F.3d 936, 939 (10th Cir.), cert. denied, 520 U.S. 1270 (1997)). In this case, the totality of the information in the affidavit indicated that the drug activity at the listed residence was "ongoing and continuous," and the information which formed the basis for finding probable cause was not impermissibly stale.
Rivera argues that the affidavit in support of the warrant does not indicate when the informants made their observations or reports, and therefore does not rule out the possibility that the informants' reports were stale. This argument fails, however, because of the corroborative effect of the "trash cover" and other independent investigation by Anderson. See United States v. Berrocal, 232 F.3d 902, 2000 WL 1629437 (10th Cir. Oct. 31, 2000) (rejecting defendant's claim that citizen informant's tip could be stale because affidavit failed to indicate the date of the report on the grounds that the information was corroborated by officer).
Based on the foregoing, the court concludes that the totality of the circumstances provided a substantial basis for the issuing judge's finding of probable cause.
II. No-Knock Warrant
Finally, Rivera contends that there was no basis for the no-knock provision in the warrant. The Fourth Amendment generally requires that police officers entering a home must knock on the door and announce their identity and purpose before attempting forcible entry. See Richards v. Wisconsin, 520 U.S. 385 (1997). An exception to this requirement exists where exigent circumstances warrant an unannounced entry. See United States v. Gay, 240 F.3d 1222 (10th Cir.), cert. denied, 533 U.S. 939 (2001); United States v. Mitchell, 783 F.2d 971, 974 (10th Cir.), cert. denied, 479 U.S. 860 (1986). The showing required for no-knock authorization is "not high." Richards v. Wisconsin, 520 U.S. 385, 394 (1997). It depends upon a reasonable suspicion by law enforcement officers that to announce their presence in advance of entry would place them at risk or allow destruction of evidence. Id. ("In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation or the crime by, for example, allowing the destruction of evidence.").
In this case, the affidavit in support of the warrant described activity consistent with on-going, drug trafficking at the residence. More specifically, Detective Anderson provided information indicating that cocaine, a stimulant, would be found inside the residence. Anderson explained, based on his training and experience, that the use of stimulants such as cocaine can cause individuals to become paranoid and violent, making it more dangerous for an officer to announce his presence. In addition, Anderson explained that cocaine as well as other drugs can be destroyed easily and quickly once a suspect becomes aware of police presence. Anderson provided specific information about counter surveillance at the residence, and he suggested that the potential for the destruction of evidence was heightened in this case as a result of that counter surveillance.
In the Tenth Circuit, an articulated concern that the target of a search might be alerted in advance to the presence of officers so as to threaten destruction of evidence is an exigent circumstance justifying no-knock procedure. United States v. Dickerson, 195 F.3d 1183, 1187 (10th Cir. 1999) (concluding that the possibility of evidence being destroyed created exigent circumstances allowing a "no knock" entry and therefore finding it unnecessary to decide whether safety concerns also justified the entry); United States v. Watson, 2003 WL 254311, *5 (10th Cir. Feb. 5, 2003) (in reviewing no-knock warrant for two separate residences operating as a combined drug unit, court concluded that the presence of a surveillance system at one residence, suggesting an opportunity to conceal or destroy evidence, and the presence of a firearm at the other residence, presenting a safety threat, justified issuance of no-knock authority based on the threat to safety and the need to preserve evidence from destruction, and stating "either of which would have sufficed");United States v. Berrocal, 232 F.3d 902, 2000 WL 1629437 (10th Cir. Oct. 31, 2000) (concluding no-knock search complied with Fourth Amendment where "trash cover" revealed an amount of methamphetamine that could be readily destroyed, it was reasonable to conclude that evidence might be destroyed if notice was given). As detailed above, the affidavit in this case did more than provide a generalized statement that drugs may readily concealed or disposed of easily. Rather, the affidavit explained that the potential for the destruction of evidence was elevated, in this particular case, as a result of counter surveillance he personally observed at the residence. Taking into account the circumstances as a whole, the court concludes that the affidavit in this case provided a sufficient basis for the issuing judge to conclude that a no-knock warrant was reasonable.
Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion to suppress is DENIED.