Opinion
Case No. 04-40083-01-JAR.
February 11, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO SUPPRESS
This matter comes before the Court on defendant Steven Francis Erichsen's Motion to Suppress (Doc. 17). The Court heard oral argument on the motion at a hearing on January 4, 2005, at which time the Court took the motion under advisement. The Court has reviewed the pleadings and is prepared to rule. For the reasons set forth below, defendant's motion is denied.
I. Background
Defendant was stopped for driving left of center in Dickinson County, Kansas on March 5, 2004, at approximately 7:00 p.m. He was arrested and charged with driving with an open container. The search incident to his arrest resulted in the seizure of: (1) a small plastic bag containing cocaine; (2) two small paper pharmaceutical folders containing cocaine; and (3) a small plastic vial containing cocaine. Police also seized a rolled-up dollar bill, consistent with the use of cocaine power, from defendant's passenger.
After he was Mirandized, defendant indicated that the plastic vial contained baking soda. Defendant admitted that the cocaine belonged to him and was for his personal use. Defendant would not say where he had obtained the cocaine, but stated that he had been bidding jobs for his tree trimming business all day, and had been to Salina and Chapman earlier in the day. Defendant stated, however, that he did not obtain the cocaine in Salina or Chapman. In addition, defendant informed officers that he had left his residence at approximately 1:30 p.m., and that was the last place he had been. Defendant told police he resided at 3715 Junction Road, Junction City, Kansas. Junction City is located not in Dickinson County, where defendant was stopped, but rather in Geary County.
Miranda v. Arizona, 384 U.S. 436 (1966).
The Junction City-Geary County Drug Operations Group learned of the events surrounding defendant's traffic stop on March 5, 2004, at 9:15 p.m. Based on information gleaned during this traffic stop, and additional investigative information in his possession, Detective Corporal Todd Godfrey applied for a search warrant of defendant's home in Junction City. The affidavit requested permission to search for "fruits, instrumentality's [sic], contraband, or evidence of illicit drug use," specifically, "cocaine, packaging material, drug paraphernalia, documentation indicating the source of the illegal drugs, and items which will help identify persons in control of the premises."
The affidavit described the traffic stop in Dickinson County, as well as defendant's post-arrest statements regarding the cocaine and his activities on March 5, 2004. Corporal Godfrey also referred to defendant's admission that the plastic vial in his possession contained baking soda. Based on his training and experience, Corporal Godfrey noted that "baking soda is commonly known as a `cutting' material, which is then mixed in with the drug to increase the profit margin with the sale of the illegal drug."
In addition, the affidavit stated that a criminal history check on defendant and his passenger revealed that defendant had been arrested twice in 1995 for, inter alia, possession of cocaine and drug paraphernalia. The criminal check on defendant's passenger similarly revealed that he had been arrested for: (1) possession of narcotics and possession of narcotics with the intent to sell, and unlawful use of a weapon in 1986; (2) conspiracy to manufacture a controlled substance in 1987; (3) conspiracy to distribute methamphetamine in the Sandstone Federal Correctional Institute in 1987; and (4) sale of cocaine, conspiracy to sell cocaine and possession of cocaine in 1997.
Judge Larry Bengston authorized the warrant at 11:14 p.m. and sixteen minutes later officers executed the warrant. Corporal Godfrey was among the executing officers. During the search, a .22 caliber gun was found underneath a sofa. Defendant was then indicted, as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). It is this firearm that defendant seeks to suppress. Defendant argues that suppression is proper because probable cause to issue a search warrant was lacking, and because the nighttime search of his residence was unreasonable and, hence, in violation of the Fourth Amendment. The Court addresses each of defendant's arguments in turn.
II. Discussion
A. Lack of Probable Cause
Defendant asserts that the search warrant affidavit failed to provide probable cause to search his residence because the information in the affidavit did not establish a nexus between the items sought and the residence. Indeed, defendant avers that the warrant was so lacking in probable cause that it cannot be saved by the good faith exception recognized in United States v. Leon.
468 U.S. 897 (1984).
Reviewing courts give "great deference" to the issuing magistrate's determination of probable cause. The court's duty is to ensure that the issuing magistrate had a "substantial basis" for concluding that the affidavit in support of the search warrant established probable cause. "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 . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." The test is whether the facts presented in the affidavit would "warrant a man of reasonable caution" to believe that evidence of a crime will be found at the place to be searched. Thus, only a probability and not a prima facie showing is the standard for probable cause. Nexus
United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997).
United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Id. at 1182.
Id. at 1182 (citing Texas v. Brown, 460 U.S. 730, 742 (1983)).
Id. at 1182 (citing Gates, 462 U.S. at 235).
Probable cause to search a location does not depend on direct evidence or personal knowledge that evidence or contraband is located there. The affidavit need not aver that criminal activity actually occurred in that location. It is enough when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. This nexus "may be established through normal inferences as to where the articles sought would be located." "[C]ourts often rely on the opinion of police officers as to where contraband may be kept."
United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 523 U.S. 1079 (1998).
United States v. Reno, 196 F. Supp. 2d 1150, 1158 (D. Kan. 2002) (citing United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992)).
Hargus, 128 F.3d at 1362.
Reno, 196 F. Supp. 2d at 1158 (quoting United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)).
Id. (quoting $149,442.43 in U.S. Currency, 965 F.2d at 874 (citations omitted)).
The Tenth Circuit has emphasized that "[p]robable cause to search a person's residence does not arise based solely on probable cause that the person is guilty of a crime. Instead, there must be additional evidence linking the person's home to the suspected criminal activity." The Circuit has declined to join other circuits that have held, in cases involving drug traffickers, that "observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect's house, even in the absence of an allegation that any illegal activity occurred in the home itself."
United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).
Nolan, 199 F.3d at 1183 (citing cases).
Defendant argues the necessary nexus between the objects to be seized and the place to be searched is missing from Corporal Godfrey's affidavit such that the warrant was issued without probable cause. In support of this argument, defendant refers to three allegations contained in the affidavit: (1) that defendant was arrested in Dickinson County with a user-quantity of cocaine; (2) that defendant lived in Geary County; and (3) that he had been at his residence that day. Defendant then states: "[u]nder the gentlest scrutiny, this cannot provide the probable cause to a reasonable magistrate." In so stating, defendant has grossly oversimplified the contents of the affidavit.
The Court finds that the information provided in the affidavit establishes a connection between defendant's residence and illegal drug use, therefore supporting the inference that one or more of the items sought in the affidavit would be found in the residence. The affidavit related that defendant was arrested with cocaine, and that defendant admitted the cocaine was for his own personal use. In addition, defendant told officers that the plastic vial he was carrying contained baking soda. Corporal Godfrey noted in his search warrant affidavit that baking soda was a known cutting agent, used to increase the profit margin of illegal drugs. Moreover, the mere fact that defendant was arrested with a user-quantity of cocaine does not vitiate probable cause for a search warrant. Such an argument was recently made and rejected by the Tenth Circuit. The affidavit did not simply note that defendant lived in Geary County and had been at his residence that day. Rather, Corporal Godfrey noted that defendant had only been to Salina and Chapman that day, but that he had not gotten the cocaine from either location, and that defendant had left his residence only five and a half hours earlier that day and that was the last place that he had been. Both defendant and his passenger also had prior drug-related arrests. It was thus reasonable for the magistrate to believe that "the fruits, instrumentality's [sic], contraband, or evidence of illicit drug use" would be found at the residence, and defendant's nexus challenge fails. Leon Good Faith
See United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir. 2004) ("[Defendant] has cited no authority to support the proposition that `mere personal use' of controlled substances in violation of the criminal laws is insufficient for a search warrant to issue. . . . We see no reason to distinguish between drug use and all other crimes for which a warrant is appropriate.").
Even assuming, arguendo, that the affidavit lacked probable cause, Corporal Godfrey acted with "objective good faith" in obtaining the warrant from the magistrate and in executing the warrant within its scope, pursuant to United States v. Leon. In Leon, the Supreme Court pronounced "that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." "The engine that drives Fourth Amendment protection is prevention and deterrence." Thus, "where the officer's conduct is objectively reasonable," that is, the officer acts with "objective good faith" in obtaining the warrant from a magistrate and in executing the warrant within its scope, "there is no police illegality and thus nothing to deter." It is the "magistrate's responsibility to determine whether the officer's allegations establish probable cause." In the ordinary case, the officer cannot be expected to question the magistrate's probable cause determination." Indeed, there is a "`presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith.'"
In applying the Leon exception, the
`good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization.' . . . To answer this `objectively ascertainable question,' we are to consider `all of the circumstances,' and assume that the executing `officers have a reasonable knowledge of what the law prohibits.'
468 U.S. 897 (1984).
Id. at 918.
United States v. McCarty, 82 F.3d 943, 949 (10th Cir.), cert. denied, 519 U.S. 903 (1996).
Leon, 468 U.S. at 919-921.
Id. at 921.
Id.
United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (quotation omitted).
United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir. 1993), cert. denied, 511 U.S. 1045 (1994) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988) (quoting in turn Leon, 468 U.S. at 919)).
"[T]he reviewing court must examine `the text of the warrant and the affidavit to ascertain whether the agents might have reasonably presumed it to be valid.'" The determination is not merely whether the affidavits contain legally sufficient facts but whether the affidavits are devoid of factual support. "Thus, `it is only when [an officer's] reliance was wholly unwarranted that good faith is absent. The government, not the defendant, bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable.
McKneely, 6 F.3d at 1454 (quotation omitted).
Id. (citing United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)).
McKneely, 6 F.3d at 1454 (quoting Cardall, 773 F.2d at 1133)).
United States v. Jackson, 199 F. Supp. 2d 1081, 1093 (D. Kan. 2002) (citing United States v. Cook, 854 F.2d 371, 373 (10th Cir. 1988).
In this case, Corporal Godfrey's affidavit was not devoid of factual support, nor were the facts contained therein insufficient. Thus, the Court finds that the executing officers' reliance on the warrant was objectively reasonable. Although defendant urges that Corporal Godfrey's dual status as both the affiant and one of the executors of the warrant defeats the good faith exception, the Court disagrees. By acting as both the procurer and executor of the warrant, the Court concludes that Corporal Godfrey acted reasonably. The evidence seized from the execution of the search warrant is, therefore, clearly admissible under the Leon good faith exception.
See United States v. Pierce, No. 00-40036, 2000 WL 821386 at *6 (D. Kan. May 31, 2000) (applying the good faith exception after concluding that "[the officer's] conduct in seeking and executing the warrant was not inconsistent with what should be expected of reasonably well-trained officers").
B. Reasonableness of Nighttime Search
Defendant additionally contends that because the search warrant was executed at 11:30 p.m., the search of his residence was unreasonable, and violated his rights under the Fourth Amendment to the Constitution of the United States.
It is undisputed that this search was state, and not federal in character. "When a search is state in character, `the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting evidence to be admissible in a federal prosecution.'" In conducting the Fourth Amendment inquiry, the Tenth Circuit has recognized that a nighttime search is particularly intrusive. Hence, the "element of a nighttime intrusion is one element in considering the reasonableness of the search." A nighttime search is not, however, per se unreasonable; the Tenth Circuit has held that a nighttime search is reasonable when there is a danger of destruction or removal of evidence, in part because such circumstances could even constitute exigent circumstances for a search without a warrant.
United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.) (quoting United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir. 1979) (citations omitted), aff'd on other grounds, 971 F.2d 1461 (10th Cir. 1992) (en banc)).
United States v. Callwood, 66 F.3d 1110, 1112-1113 (10th Cir. 1995) (citing Fludd v. United States Secret Serv., 771 F.2d 549, 553 (D.C. Cir. 1985) (per curiam); Gibbons, 607 F.2d at 1326.)
Gibbons, 607 F.2d at 1326.
United States v. Tucker, 313 F.3d 1259, 1265 (10th Cir. 2002); Colonna, 360 F.3d at 1169.
"In reviewing a challenge to the . . . nighttime execution of a search warrant, [the Court] review[s] the execution from the perspective of reasonable officers who are legitimately concerned not only with doing their job, but also with their safety." The burden of proving that the execution of a search warrant was reasonable rests not with defendant, but with the government.
Colonna, 360 F.3d at 1176 (citing United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997)).
United States v. Warren, 181 F. Supp. 1232, 1242 (D. Kan. 2001) (citing United States v. Moore, 91 F.3d 96, 97 (10th Cir. 1996)).
In the present case, the Court finds that the nighttime execution of the search warrant was reasonable. The affidavit sought evidence relating to drug use and defendant was arrested for the possession of cocaine. Drug evidence, particularly a powder like cocaine, is easily destroyed. Defendant was due home, but had been arrested and, as the affidavit noted, was "being held without bond, at the Dickinson County Detention Center." Under these circumstances, it was reasonable to assume that individuals at his home might realize he had been arrested and take steps to destroy the evidence. Thus, the Court concludes that the execution of the search warrant at 11:30 p.m., sixteen minutes after it was issued, was not unreasonable given the risk of destruction of the evidence.
United States v. Tavarez, 995 F. Supp. 443, 447 (S.D.N.Y. 1998) ("[S]mall amounts of cocaine [can] be easily and quickly disposed of by a number of methods, including being flushed down the toilet, thrown out a window, or thrown into a pail of water in which they would dissolve.").
See United States v. Mapp, 476 F.2d 67, 74 (2d Cir. 1973) (noting that defendant's failure to return home, may have alerted others to his arrest and resulted in the destruction of evidence).
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion to Suppress (Doc. 17) is DENIED.
IT IS SO ORDERED.