U.S. v. James

Full title: UNITED STATES OF AMERICA, Plaintiff, v. KIKO M. JAMES, Defendant

Court: United States District Court, D. Nebraska

Date published: Mar 21, 2005

8:04CR418 (D. Neb. Mar. 21, 2005)

Opinion

8:04CR418.

March 21, 2005

MEMORANDUM AND ORDER

JOSEPH BATAILLON, District Judge

This matter is before the court on the government's objections, Filing No. 26, and defendant's response, Fling No. 27, to the report and recommendation, Filing No. 25, of Magistrate Judge Thomas Thalken. The indictment in this case charges defendant with possessing a firearm, having previously been convicted of possession of cocaine, in violation of 18 U.S.C. § 922(g)(1). Filing No. 1. The defendant filed a motion to suppress, Filing No. 15, and the magistrate conducted an evidentiary hearing, concluding that the motion should be granted.

Under 28 U.S.C. § 636(b)(1)(C), I make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the parties object. To that end, I have carefully reviewed the record,¹ the objections, the one exhibit offered at the hearing, the magistrate's report and recommendation, the briefs, and the relevant case law. I conclude that the government's objections should be overruled, and the report and recommendation of Magistrate Thalken should be adopted as modified herein. Because the magistrate's report and recommendation presents a complete factual summary, it is unnecessary to reproduce the factual background in this order. I shall summarize the facts as they apply to my findings.

1 Neither the government nor the defendant offered any witnesses at the hearing before Magistrate Thalken, so there is no transcript of testimony. See Filing No. 24. The government offered Exhibit 1, the Affidavit and Search Warrant.

On April 30, 2004, Omaha Police Officers Steven Orsi and Jeffrey Gassoway submitted Exhibit 1, an Affidavit and Search Warrant application, to Magistrate F.A. Gossett, III, asking to search 1501 Burdette Street, Omaha, Nebraska. Upon authorization of the warrant, the officers searched the house and seized a Mossberg Sons Model 640 KD .22 caliber Magnum rifle and ammunition from the basement of the residence. Defendant has moved to suppress this evidence. At the suppression hearing Magistrate Thalken received Exhibit 1, a copy of the search warrant and application and affidavit for search warrant. The parties did not present testimony or any other exhibits, although the government asked for and received additional time to file its brief.

In the affidavit, the officers stated that a Julius Davis had been involved in a considerable amount of drug trafficking, and a federal indictment had issued against him. The officers believed that Davis had acquired a number of residences that he used as stash houses. Different individuals apparently occupied these houses, and seven different warrants issued for seven different addresses. The warrants for all seven residences sought to discover documents and records related to drug activities, but the warrants did not seek drugs or guns or other property. The officers searched 1501 Burdette and found a gun. The defendant in this case, Kiko James, occupied the 1501 Burdette residence.

Defendant James filed a motion to suppress, Filing No. 15, asking Magistrate Thalken to find insufficient probable cause for issuance of the warrant. Although not directly addressing that issue, Magistrate Thalken found that because the warrant only permitted a search for records and documents, that the gun could only be seized (1) under the plain view doctrine, and (2) if the incriminating nature of the gun became immediately clear and apparent. See United States v. Garner, 907 F.2d 60, 62 (8^th Cir. 1990). United States v. Hughes, 940 F.2d 1125, 1126-27 (8^th Cir. 1991). Judge Thalken found there existed no evidence in this case that the gun constituted contraband per se; nor did evidence exist that the weapon appeared to officers to be illegal; nor did evidence exist that James could not legally possess the gun. Consequently, Judge Thalken concluded that no evidence existed that would connect the weapon with criminal activity, and thus no probable cause existed for the seizure of the gun. Although I agree with Judge Thalken, the problem with this analysis is that it presumes the officers had a right to search the residence in the first instance. As stated hereinafter, I find that there existed no probable cause to conduct the search. See Garner, 907 F.2d at 62.

The government objects to the findings of Magistrate Thalken. The government argues that it could offer evidence that would show the police knew that "Kiko James was a convicted felon shortly after the house to be searched was secured." Filing No. 26.² This is the only objection the government makes to the report and recommendation of Magistrate Thalken. The government had an opportunity at the suppression hearing to submit affidavits or witnesses to support its belief that probable cause existed to seize the gun. The government failed to do so. However, whether the government met its burden in this regard is not particularly crucial, given my findings regarding lack of probable cause for issuance of the search warrant in this case as set forth below.

2 I do not intend to allow the government to establish a pattern of proving its case after suppression rulings have been entered. The defendant filed his motion to suppress clearly asserting his belief as to the illegality of the search. If the government had affidavits that indicated James had been previously convicted of a felony and that the officers had that knowledge at the time of the seizure, it could have offered such evidence at the hearing.

Defendant James argues the magistrate should be affirmed because there existed no probable cause for issuance of the search warrant in the first instance. As the defendant points out, the police obtained search warrants for seven different dwellings. They obtained these addresses by doing an on-line computer search of the Assessor's Office web page using the name of Julius Davis and Julius Davis, LLC. The officers did not have any knowledge as to whether these listings belonged to the same Julius Davis, and there is no evidence that the officers had any knowledge that the corporate LLC name belonged to the same Julius Davis. Further, the search warrant sets forth nothing that would connect most of the addresses to evidence sought in the warrant. Thus, argues defendant, the affidavit lacked any probable cause and the search warrant should not have issued in the first instance.

Probable cause exists when "there are sufficient facts to justify the belief by a prudent person that contraband or evidence of crime will be found in the place to be searched." United States v. Gladney, 48 F.3d 309, 312 (8^th Cir. 1995), quoting, United States v. Bieri, 21 F.3d 811, 815 (8^th Cir. 1994). The court must look to the four corners of the affidavit to determine probable cause. Id. The affidavit in the case before me is so deficient that a reasonable officer would not in good faith rely on the warrant. United States v. Herron, 215 F.3d 812, 814 (8^th Cir. 2000). An issuing judge must have a substantial basis for finding the existence of probable cause for issuance of the warrant. United States v. Fulgham, 143 F.3d 399, 400 (8^th Cir. 1998). A search warrant is invalid if the facts in the affidavit that connect the defendant's residence are incidental to the primary investigation. Herron, 215 F.3d at 813.

The affidavit and warrant are devoid of any information connecting Julius Davis and/or Kiko James to any drug activities to the house at 1501 Burdette Street. The government admits in its brief that "Co-conspirators had previously informed police that Davis had conducted drug activities at least two of these seven houses, although 1501 Burdette, the rental home of the instant defendant Kiko James, was not one of them." Filing No. 29 at 1. It is not sufficient to run a name in an Internet database, find seven or eight listings of that name, and use that listing, with no corroborating evidence, to conduct searches. The law does not permit such fishing expeditions which result in searches of private residences. I find that the warrant is "so facially deficient . . . that the executing officers cannot reasonably presume it to be valid." United States v. Leon, 468 U.S. 897, 922-23 (1984); United States v. Marion, 238 F.3d 965, 969 (8^th Cir. 2001). Consequently, not even the Leon good faith exception is applicable. Leon, 468 U.S. 897.

There is no evidence in this case that confidential informants provided information about the 1501 Burdette residence. There is no evidence that drug activities occurred at 1501 Burdette. There is no evidence that Julius Davis dealt drugs with the defendant in this case. There is no evidence that Julius Davis dealt drugs at or knew the occupants of 1501 Burdette Street. There is no evidence that Julius Davis visited the 1501 Burdette Street residence. Frankly, there is not a single piece of reliable evidence to connect the defendant to Julius Davis and/or any drug activities. A reasonable person could not have concluded that this affidavit presents sufficient facts that evidence would with fair probability be found at 1501 Burdette Street. United States v. Hiveley, 61 F.3d 1358, 1360 (8^th Cir. 1995); United States v. Miller, 2001 WL 1580206 (D. Neb. December 5, 2001).

I conclude that the affidavit lacked probable cause to such a degree that a reasonable officer could not have relied on it to search the residence at 1501 Burdette. Consequently, all items found at the residence of 1501 Burdette are hereby suppressed.

THEREFORE, IT IS ORDERED:

1. The report and recommendation of the magistrate, Filing No. 25, is adopted as modified.

2. The motion to suppress, Filing No. 15, is granted.

3. The objections of the government, Filing No. 26, are overruled.