Opinion
CRIM. ACTION NO. 2:03CR259-T
April 8, 2004
Ronald Wayne Wise, Stephen Roger Glassroth, A. Wesley Pitters, Bruce Maddox, Montgomery, AL, for defendant LEON CARMICHAEL, SR. akaBeaver Leon Carmichael
Mary Elizabeth Anthony, Anthony Pratt LLC, South Birmingham, AL, for defendant LEON CARMICHAEL, SR. aka Beaver Leon Carmichael
Barry Elvin Teague, Federal Defender, Montgomery, AL, for defendant FREDDIE WILLIAMS
OPINION
Defendant Freddie Williams is charged with distributing marijuana in violation of 21 U.S.C.A. §§ 841 and 846. United States Magistrate Judge Coody issued a search warrant for Williams's house on November 17, 2003, and the subsequent search turned up 11 duffle bags of marijuana. Williams has moved to suppress this evidence on the ground that the search warrant was not supported by probable cause. United States Magistrate Judge Boyd held an evidentiary hearing on the motion on February 6, 2004, and recommends that the motion be denied. Williams subsequently filed objections to Judge Boyd's recommendation. For the reasons given below, the court will adopt Judge Boyd's recommendation and overrule Williams's objections.
I. Background
November 13, 2003 : Gary Wayne George was arrested in Prattville in connection with marijuana distribution. During his post-arrest interview, he told Drug Enforcement Administration Task Force Agent R. David DeJohn that he was part of Leon Carmichael's drug trafficking organization. George said that he and another individual — Robert Patrick Denton — were responsible for re-packaging large quantities of marijuana for Carmichael.
George told DeJohn that another shipment of marijuana would be arriving in Montgomery around November 16th. George said that he and Denton would be re-packaging the marijuana either at Denton's residence at 808 W. Fleming Rd. or at a house at 23 Second Street.
George also told DeJohn that he and Denton regularly sold marijuana to Charlotte and Steve Hensarling of Huntsville. DeJohn later found out that Denton had been previously been arrested in June 2002 in connection with marijuana trafficking. George never mentioned defendant Freddie Williams during his interview with DeJohn.
November 14, 2003 : George telephoned DeJohn to inform him that he was at Denton's house and that Denton would be making a deliver of cash to Carmichael in the next 20 minutes. Agents followed Denton after he left his house, but he did not meet with Carmichael. George subsequently called DeJohn back to say that Denton had not yet delivered the money to Carmichael.
November 15, 2003 : George told DeJohn that the next shipment of marijuana would be arriving on November 16th, that it would be in the range of 1,000 pounds, and that he and Denton would be repackaging it either at Denton's residence or at the Second Street address. George also told DeJohn that he and Denton would be meeting with Charlotte Hensarling that day at a Shoney's on Southern Boulevard to sell her marijuana.
George called DeJohn later that day to say that he and Denton had just met with Hensarling and sold her in the range of 10-15 pounds of marijuana. George gave DeJohn a description of Hensarling's car, and DeJohn arranged to set up surveillance on Interstate 65 going north to Huntsville. A short time later, a Chilton County Sheriff's Department officer observed Hensarling's car and stopped her for a traffic violation. A consent search turned up 26 pounds of marijuana. In her post-arrest interview, Hensarling confirmed George's account of events: she had met George and Denton at the Shoney's to purchase the marijuana.
Shortly after Hensarling was pulled over, George called DeJohn to tell him that Denton had called him with the news that Hensarling had been pulled over and arrested. Apparently, Hensarling called her husband as she was being pulled over, and he called Denton.
November 16, 2003 : DeJohn met with George again. George told DeJohn that the amount of marijuana arriving that day would be closer to 550 pounds, that he and Denton would likely be processing it at the Second Street address, and that he had seen about ten pounds of marijuana at Denton's residence that day. Later on the 16th, George was arrested for driving under the influence and fleeing the scene of an accident. After George's arrest on this date, DeJohn no longer used him as an informant.
November 17, 2003 :
12:50 AM (approximately) : A search warrant was executed at Denton's residence based on George's report about marijuana. Agents did not find the ten pounds of marijuana that George said would be at Denton's, but Denton admitted to involvement in trafficking marijuana and implicated Carmichael. Denton said that he was supposed to have received a shipment of marijuana on the 16th. Denton told DeJohn that, because he heard of Hensarling's arrest and of George's arrest, he had called Carmichael to tell him that he did not want to take possession of the marijuana. Denton told DeJohn that he thought the marijuana might be at "Freddie's" house.
2:45 AM (approximately) : While DeJohn and other agents were at defendant Williams's residence, Williams received a call from Carmichael. Carmichael was in the area, and he wanted to come to Williams's house to talk. After Carmichael left Denton's, Denton told DeJohn that Carmichael had told him that he needed to go to Freddie Williams's house that day at 8:00 a.m.
8:00 AM (approximately) : Denton agreed to go to Williams's house wearing an audio transmitter and an audio and video recording device. After he got to Williams's, Denton called DeJohn to tell him that Williams had sent him out to buy plastic ziploc-style bags for packaging the marijuana. Agents met him at the store and provided him with money. While Denton was gone, Williams left to take his girlfriend Faith somewhere. Denton returned with the ziploc bags and waited outside Williams's house for Williams's return.
After Williams returned, the two began unloading the marijuana from a hidden room inside Williams's house. Denton was then sent out again by Williams, this time to buy scales, and he again met up with agents. He told the agents that he had seen eleven duffle bags of marijuana; the agents also saw the marijuana on a video recording that Denton had made inside Williams's house.
10:20 AM (approximately) : After returning with the scales, Denton called DeJohn from inside Williams's house to say that Williams was about to leave. At this time, agents moved in to arrest Williams and to secure the house. However, by the time the officers got to the house, Williams was gone.
At the same time that agents went in to secure Williams's house, DeJohn was finishing the affidavit he submitted to United States Magistrate Judge Coody in support of his request for a warrant to search Williams's house. DeJohn's affidavit makes no mention of the fact that officers had gone in to secure the residence.
4:00 PM (approximately) : DeJohn was finally able to meet with Judge Coody. DeJohn's testimony about his meeting with Judge Coody is not totally consistent. He testified that Judge Coody did not ask him any questions. He testified that he believes he told Judge Coody that agents had already moved in to secure Williams's residence, but he also testified that he was not 100 percent certain about that. He later testified that he "may have" told Judge Coody that agents saw marijuana when they secured Williams's residence.
Judge Coody signed the search warrant at 4:15 p.m. that afternoon. The subsequent search of Williams's residence yielded 11 duffle bags of marijuana, paraphernalia used in the packaging and distribution of marijuana, at least five firearms, and ammunition.
II. Discussion A. Probable Cause to Issue Warrant
The court agrees with United States Magistrate Judge Boyd's conclusion that the affidavit presented to Judge Coody on November 17, 2003, established probable cause to believe that marijuana would be found at Williams's residence. In other words, "given all the circumstances set forth in the affidavit . . ., including the veracity and basis of knowledge of persons supplying hearsay information, there [was] a fair probability that contraband or evidence of a crime [would] be found" at Williams's house. Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2137, 2332 (1983) (quotations omitted). Accordingly, Judge Coody "had a substantial basis for concluding that probable cause existed." Id. (quotations and alterations omitted).
In his affidavit to Judge Coody, DeJohn included the following information to establish probable cause to search Williams's house: Denton admitted to being a drug dealer working for Carmichael; Denton reported in all the relevant details the sale of marijuana to Hensarling earlier in the day; Denton received a call from Carmichael at 2:45 in the morning and met with him shortly thereafter; after leaving Williams's to buy scales, Denton called DeJohn and told him that there were 11 duffle bags of marijuana in the Williams's house; and agents, using the audio transmitter device worn by Denton, heard Williams and Denton discussing the need for scales to weigh marijuana. DeJohn also included in the affidavit that Denton had a prior arrest for drug distribution in June 2002.
An adequate basis for concluding that probable cause exists when the affidavit submitted to the magistrate contains detailed and specific information about criminal activity or contraband provided by an informant. Gates , 462 U.S. at 234, 103 S.Ct. at 2330; United States v. Foree , 43 F.3d 1572, 1576 (11th Cir. 1995). Greater weight is to be given to an informant's detailed report when the informant made his "observations in the context of a controlled surveillance operation and reported intermittently to supervising officers, who corroborated [his] access to the target of the investigation." Foree , 43 F.3d at 1576. Further, an informant is "unlikely to be untruthful," when his "report consisted of facts readily verifiable upon a subsequent search by the police. . . for, if the warrant issued, lies would likely be discovered in short order and favors falsely curried would dissipate rapidly." Id.
In this case, Denton provided task force agents with detailed information about drug activity in Williams's residence. When he left to purchase ziploc bags, Williams told DeJohn that he saw eleven duffle bags of marijuana in the house. This is detailed information that could be readily disproved. Further, Denton was under surveillance at all times, and thus there can be no doubt that he had had access to the inside of Williams's residence.
Moreover, the affidavit submitted by DeJohn also reported that agents listening in on the audio transmitter worn by Denton heard him and Williams talking about the need for scales to weigh marijuana. These direct observations by the agents corroborated Denton's report that marijuana was in Williams's house. See United States v. Abell , 963 F. Supp. 1178, 1193-94 (S.D. Fla. 1997).
The timeliness of Denton's information — as reported in DeJohn's affidavit — further added to the affidavit's reliability. See United States v. Bervaldi , 226 F.3d 1256, 1264 (11th Cir. 2000) (discussing staleness doctrine). DeJohn testified that he wrote the affidavit at the same time that Denton was in Williams's house; it was given to Judge Coody that morning, and he reviewed it that afternoon. There was thus no risk that Denton's information was stale.
"The task of the magistrate issuing a warrant 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 exists a fair probability that contraband or evidence of a crime will be found in a particular place.'" Foree , 43 F.3d at 1575 (quoting Gates , 462 U.S. at 238, 103 S.Ct. at 2332). Here, the affidavit provided by DeJohn established a fair probability that marijuana would be found in Williams's residence.
In his motion and at the hearing before Judge Boyd, Williams made two arguments as to why the motion should be granted. Williams's first argument is that, because the agents went in to his house before obtaining the warrant from Judge Coody, the search they conducted after receiving the warrant is invalid. For a number of reasons, this argument is not persuasive. Initially, Williams does not explain why the warrantless entry should invalidate the search warrant and/or the subsequent search. Presumably, his argument is that the initial warrantless entry into his house was illegal and that the subsequent search warrant and search were the "fruit" of this illegal search. Williams makes no legal argument why the officers' entry into his home was illegal, however.
More importantly, even if the initial entry was illegal, when officers who already have sufficient evidence to establish probable cause for a search warrant conduct an illegal, warrantless search prior to obtaining a warrant, the subsequent search based on the warrant is not invalid. Segura v. United States , 468 U.S. 796, 814-15, 104 S.Ct. 3380, 3390 (1984); United States v. Glinton , 154 F.3d 1245, 1255 (11th Cir. 1998). The Court in Segura based its holding on the "independent source" exception to the exclusionary rule. Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 183 (1920). The court reasoned that the information the officers have before they conduct the illegal search constitutes an "independent source" for the subsequent warrant, and thus the results of the search need not be excluded. 468 U.S. at 814-15, 104 S.Ct. at 3390.
In this case, the agents had sufficient probable cause to get a search warrant before they went in to Williams's house to to try to arrest him. Indeed, all the information in the warrant — discussed above — was known to the officers prior to entering Williams's house. Therefore, even if the entry into Williams's house was illegal, the search warrant and the subsequent search were supported by a valid "independent source" and should thus not be invalidated. In other words, "[h]ad [the agents] never entered [Williams's house], but instead conducted a perimeter stakeout to prevent anyone from entering the [house] and destroying the evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant." Segura , 468 U.S. at 814, 104 S.Ct. at 3390.
There is evidence that, when DeJohn and Judge Coody met on the afternoon of November 17th, DeJohn may have told Judge Coody that the agents found marijuana in Williams's house when they entered. At the evidentiary hearing, DeJohn first testified that he could not recall with 100 percent certainty whether he told Judge Coody anything about the agents going in to Williams's house. Later, he testified that he may have told Judge Coody that the agents found marijuana in Williams's house. It is thus far from clear from DeJohn's testimony that he actually told Judge Coody anything.
Even if DeJohn did tell Judge Coody about the marijuana, however, the search warrant and the subsequent search would still be valid under the "independent source" rule discussed above. In United States v. Chaves , 169 F.3d 687, 689 (11th Cir. 1999), officers conducted an illegal protective sweep of a warehouse and then applied for a search warrant to search the same warehouse. The affidavit submitted in support of the warrant contained both information obtained prior to the illegal search and information obtained during the illegal protective sweep. Chaves , 169 F.3d at 689. The magistrate judge issued the warrant, and the defendant later moved to suppress the results of the subsequent search. Id. The Eleventh Circuit held that it was not error to admit evidence obtained during the search because, even though there was tainted information in the warrant, the untainted evidence, standing alone, would have been enough to establish probable cause, and thus it constituted a valid "independent source" for the warrant. Id. at 693. Applying the same analysis here, because there was enough "untainted" information in the affidavit to support a probable-cause finding, it would be irrelevant if DeJohn provided Judge Coody with "tainted" information.
Williams's second argument was that Gary Wayne George was less than a totally credible informant and that DeJohn left out of his affidavit some facts tending to show this. It is true that DeJohn's affidavit left out several facts about George's reliability. He did not mention that George had been arrested on November 16th for DUI and fleeing the scene and did not mention that the ten pounds of marijuana that George had said would be at Denton's residence were not there. The affidavit did, however, describe that George had incorrectly reported that Denton would be delivering money to Carmichael on November 14th.
However, whether or not George was reliable and whether or not DeJohn accurately reported facts bearing on George's reliability in his affidavit are not relevant to assessing whether Judge Coody had probable cause to issue the search warrant in this case. George was not the source of the information in the affidavit regarding the marijuana in Williams's house, Denton was. Thus, even if George was wholly unreliable, Judge Coody could still have found probable cause based on Denton's information.
Williams raises two objections to Judge Boyd's recommendation that the motion to suppress be denied, neither of which is meritorious. In her recommendation, Judge Boyd included — in a footnote — a brief discussion of the United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405 (1984), "good faith" exception to the probable cause requirement; her point was that even if there was no probable cause in this case, the exclusionary rule would still not apply because Agent DeJohn acted in good faith reliance on the warrant issued by Judge Coody. Both of Williams's objections are directed at the applicability of the Leon exception. However, Judge Boyd's discussion of Leon is tangential to her conclusion that Judge Coody did, in fact, have probable cause to issue the warrant. Accordingly, even if Williams's objections about Leon were correct, the court would still adopt Judge Boyd's recommendation. Accordingly, Williams's objections are due to be over-ruled.
B. Other Issues
Williams very briefly alluded to several other issues in his motion to suppress. One such issue was whether there was probable cause to support the search warrant issued for Denton's house. Williams conceded at the evidentiary hearing, however, that he does not have standing to challenge the search of Denton's house.
Williams raised three other issues in his motion. First, he argued there was no probable cause to search "any vehicle belonging to the defendant"; second, he argued that statements he made to the police were made involuntarily and without knowledge of his Miranda rights; and third, he argued that the search of his person was illegal.
Judge Boyd did not specifically address each of these issues at the evidentiary hearing. However, it is apparent that Judge Boyd found that, with respect to these claims, Williams's motion was not "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented." United States v. Richardson , 764 F.2d 1514, 1527 (11th Cir. 1985). Accordingly, the probable cause issue was the only one addressed at the evidentiary hearing.
The court agrees with Judge Boyd's conclusion that, with respect to his claims other than the probable cause claim discussed above, Williams's motion was insufficient to warrant a hearing and should be denied. Williams argued that there was no probable cause to search his vehicle, but there is no evidence that the agents searched a vehicle at all. Next, he argued that his statements to authorities were not made voluntarily and not made with knowledge of his Miranda rights; however, it is not clear from his motion what statements he made to the police, and he presented no evidence about the circumstances surrounding his alleged statements. Third, Williams argued that the search of his person was illegal; again, though, there is no evidence that his person was searched at all, and he did not present any evidence on the circumstances surrounding this alleged search. Because the "court need not act upon general or conclusory assertions founded on mere suspicion or conjecture," Richardson , 764 F.2d at 1527, Williams's motion is due to be denied with respect to these claims. Finally, to the extent that Williams's argument with respect to each of these other allegedly illegal searches is that they were the "fruit" of the search of his house, his motion is due to be denied because the search of his house was legal
III. Conclusion
For the reasons given above, Judge Boyd's recommendation will be adopted, and Williams's objections will be over-ruled.
An appropriate order will be entered.
ORDER
This criminal case is now before the court on the recommendation of the United States Magistrate Judge entered on February 17, 2004 (doc. no. 116), in which the magistrate judge recommends that defendant Freddie Williams's motion to suppress, filed on January 17, 2004 (doc. no. 72), should be denied. This case is also before the court on the objections to the recommendation, filed by Williams on March 1, 2004 (doc. no. 121).After an independent and de novo review of the entire record, and for the reasons discussed in the memorandum opinion issued this date, the court believes that Williams's objections should be overruled and the recommendation adopted. Specifically, the court fully adopts the recommendation that the motion to suppress the evidence found at Williams's residence on November 17, 2004, be denied. The court also adopts the magistrate judge's recommendation, made at the evidentiary hearing, that Williams's motion also be denied to the extent that Williams sought the suppression of (1) evidence found at the residence of Robert Patrick Denton on November 17, 2004, (2) evidence obtained on November 17, 2004 as a result of a search of a vehicle belonging to Williams, (3) statements Williams made to the law enforcement authorities on November 17, 2004, and (4) evidence obtained as a result of a search of Williams's person on November 17, 2004.
In accordance with the above, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) The objections, filed by defendant Freddie Williams on March 1, 2004 (doc. no. 121), are overruled.
(2) The recommendation of the United States Magistrate Judge entered on February 17, 2004 (doc. no. 116), is adopted.
(3) The motion to suppress, filed by defendant Williams on January 17, 2004 (doc. no. 72), is denied in all respects.Pending Counts: Disposition 21:846 CONSP: POSSESS TO DISTBMARIJ — NMT $4,000,000; [*];NLT 20Y, NMT LIFE; B; NLT 5YSUP REL; VWPA; G-LNS; $100 SA;FORFEITURE(1ss) 18:1956(h) MONEY LAUNDERING — NMT $500,000; [*]; NMT 20Y;B; NMT 3Y SUP REL; VWPA; G-LNS; $100 SA(2ss) Offense Level (opening): 4 Terminated Counts: Disposition 21:846 CONSP: POSS TO DISTBMARIJ — NMT Dismissed on Government's Motion(1) $2,000,000 [*];NLT 5Y, NMT 40Y; B; NLT 4Y SUPREL; VWPA; G-LNS; $100 SA(1) 21:846 CONSP: POSS TO DISTBMARIJ — NMT Dismissed on Government's Motion(1s) $4,000,000; [*];NLT 10Y, NMT LIFE; B; NLT 5YSUP REL; VWPA; G-LNS; $100 SA;FORFEITURE(1s) Offense Level (disposition): 4 Complaints: NONE Case Assigned to: Judge Myron H. Thompson 21:846 CONSP: POSSESS TO DISTBMARIJ — NMT $4,000,000; [*];NLT 20Y, NMT LIFE; B; NLT 5YSUP REL; VWPA; G-LNS; $100 SA;FORFEITURE(1ss) Offense Level (opening): 4 Terminated Counts: Disposition 21:846 CONSP: POSS TO DISTBMARIJ — NMT Dismissed on Government'sMotion(1) $2,000,000 [*];NLT 5Y, NMT 40Y; B; NLT 4Y SUPREL; VWPA; G-LNS; $100 SA(1) 21:846 CONSP: POSS TO DISTBMARIJ — NMT Dismissed on Government'sMotion(1s) $4,000,000; [*];NLT 10Y, NMT LIFE; B; NLT 5YSUP REL; VWPA; G-LNS; $100 SA;FORFEITURE(1s) Offense Level (disposition): 4 Complaints Disposition 21:841(a)(1) Knowingly andintentionally possess withintent to distribute 100Kilograms or more of marijuana, a Controlled Substance[2:03-m-67] U.S. Attorneys: Matthew S. Miner34-00223-7135 fax[COR LD NTC] A. Clark Morris, Asst. USAttorney334-223-7135 fax[COR LD NTC] U.S. Attorney's OfficePO Box 197 Montgomery, AL 36101-0197334-223-7280 FTS 223-7560