Opinion
Case No. 2:00-CR-192C
May 3, 2001
ORDER
Defendant John Travis Penman has moved to suppress evidence (drugs, drug paraphernalia, and weapons) seized during the execution of a search of his home, as well as statements made by Penman during the execution of this search. For the reasons set forth below, the court denies the Defendant's motion.
Findings of Fact
During July or August, 1999, Detective Troy Siebert of the Salt Lake City Police Department investigated a home invasion which had allegedly occurred at 737 North Starcrest Drive, the home of Defendant John Travis Penman. Penman's mother, Gloria Penman, had reported that an unidentified intruder had entered the home and, standing just outside her son's basement bedroom, had fired a shot at her. Ms. Penman was cooperative during Detective Siebert's time in the Penman home, and Detective Siebert did not see any weapons in plain view in Penman's bedroom. Penman was not at home while Detective Siebert was investigating this home invasion.
In September 1999, Detective Siebert was informed by a confidential informant that a male Latino known as "Tavieso" was engaged in a narcotics distribution operation at 737 North Starcrest Drive in Salt Lake City. Based on his previous communications with this confidential informant, Detective Siebert considered the information given to him to be accurate. At this time, Detective Siebert began an investigation into a possible narcotics distribution operation out of that home.
Detective Siebert also received information from Detective Robin Howell of the Salt Lake City Police Department, who was told by an individual that the individual had purchased drugs from Penman at 737 North Starcrest. In addition, Detective Siebert received information from a third person, one who was not involved in criminal activity but was "concerned citizen." The concerned citizen told Detective Siebert that he/she "has watched 737 North Starcrest and has observed short-term traffic coming to the listed premises. [The concerned citizen] stated that the traffic was suspicious because they would not go [to] the front door but knock on a basement window and once inside, the people would only stay two or three minutes before leaving." (Affidavit for Search Warrant at 2, attached as Ex. A to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.)
On September 10, 1999, Detective Siebert conducted a controlled trash cover of the trash bins at 737 North Starcrest Drive, which had apparently been left curbside for pickup. Detective Siebert watched the trash bins for twenty minutes before searching them, but he did not see anyone put anything in the trash bins during that time. In the trash, Detective Siebert found several letters addressed to 737 North Starcrest and a plastic bag containing a white powdery substance, which later tested positive for cocaine. Based on Siebert's training and experience, he believed the plastic bag with cocaine residue was large enough to have previously contained an ounce or more of cocaine.
Detective Siebert conducted a history check on 737 North Starcrest and found that Penman was listed as an occupant of that residence. Siebert also determined that "Tavieso" was an alias used by Penman and that Penman had previously been arrested for drug related offenses.
Based on his investigation, Detective Siebert drafted an affidavit in support of a search warrant for the residence at 737 North Starcrest Drive. Detective Siebert requested permission to search for and seize, among other things, cocaine, cocaine production and distribution paraphernalia, currency, buyer and seller lists, documentation of cocaine sales, "and other fruits or instrumentalities related to the crime of possession or distribution of a controlled substance." (Id. at 1-2.) In the affidavit, Detective Siebert repeated the information he had received from three individuals, as well as the evidence he had gathered during the controlled trash cover. In referring to the individual who had reported purchasing drugs from Penman at 737 North Starcrest, the affidavit used the term "concerned citizen" rather than "confidential informant." (See id. at 2.)
The affidavit also included a request that the warrant authorize execution at night and entry without notice (a "no-knock" warrant). This request was based on Detective Siebert's observation of children playing in the area during the day, the possibility that evidence would be destroyed if officers were seen approaching the house, and the need for officer safety. In support of this request, Detective Siebert stated in the affidavit that Penman was a documented member of the "Twenty First Street" gang, that in Detective Siebert's experience that gang has a high propensity for violence and commonly carry guns, and that Penman's criminal history check showed that Penman had previously been arrested for carrying a concealed weapon, homicide, aggravated robbery, and drug related offenses. (See id. at 4-5.)
Between September 15 and September 17, 1999, the scheduled signing judge for the Third District Court of Utah was Commissioner Thomas Arnett, who had been appointed as judge pro tempore by Chief Justice Richard Howe of the Utah Supreme Court. Judge Howe had made this appointment based in part upon the written recommendation of the Presiding Judge of the Third District Court, Judge Frank Noel. In his recommendation, Judge Noel stated that "[t]he Third District Court has an extraordinary need for judicial coverage for signing protective orders and other matters during this period when judges will be attending the Judicial Conference. . . . Domestic matters have been heard by Commissioner Arnett for several years, and he is very familiar with matters requiring a judge's signature." (Arnett Recommendation Letter, attached as Ex. C to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.) Judge Noel also noted in his letter of recommendation that Commissioner Arnett had previously been assigned to serve as judge pro tempore.
On September 15, 1999, Detective Siebert presented and swore to the affidavit before Judge Pro Tempore Arnett, who signed a search warrant for the 737 North Starcrest Drive residence. The search warrant signed by Judge Pro Tempore Arnett authorized a no-knock entry and execution at night. Upon reading the warrant, Detective Siebert noticed that the words "pro tem," a term with which he was not familiar, appeared under Judge Pro Tempore Arnett's signature. When he asked Judge William Barrett, another judge at the Third District Court, about this the next day, Detective Siebert was told by Judge Barrett that Judge Pro Tempore Arnett had the authority to sign search warrants.
Detective Siebert then submitted the warrant to the administration of the Salt Lake City Police Department. The police department classified the warrant as a high "B" or low "C" level warrant, indicating that the premises to be searched involved a medium to high hazard. Salt Lake City Police Department policy mandated that this type of warrant be executed by a SWAT team. From September 15 until September 23, 1999, Detective Siebert conducted additional surveillance at 737 North Starcrest to verify that the information on the warrant was still valid. On September 22 and 23, 1999, Detective Siebert observed short-term traffic at the residence, activity which indicated to him that there was a narcotics distribution operation in the home.
On September 23, 1999, at approximately 10:00 p.m., the SWAT team executed the search warrant for 737 North Starcrest Drive. Ten to twelve SWAT officers entered the home while an additional eight to ten officers maintained the perimeter. In making entry into the home, the officers did not knock, but rather used a battering ram to break open the front door.
Two SWAT officers located Penman and his girlfriend in Penman's basement bedroom. Penman was lying on the foot of the bed, and Penman's girlfriend was sitting at the head of the bed on top of a pillow. After placing Penman and his girlfriend in "flex cuffs," police discovered a handgun underneath the pillow on which the girlfriend had been sitting. After being briefed by the SWAT team leader, Detective Siebert entered the home and informed Penman of his rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Penman agreed to be interviewed but requested that Detective Siebert not turn on his tape recorder.
Conclusions of Law I. Authority of the signing judge to issue search warrants
Penman first argues that Commissioner Arnett did not have the constitutional authority to sign search warrants. Article VIII of the Utah Constitution provides that the judicial power of the State of Utah is vested in a Supreme Court, district courts, and other courts that the legislature may establish. See Utah Const. art. VIII, ¶ 1. Article VIII also outlines various requirements regarding the election and qualifications of those who exercise judicial power. See id. at ¶¶ 7, 10. In addition to those who are appointed or elected as judges, Article VIII, section 4 of the Utah Constitution provides that judges pro tempore may exercise judicial power.
Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah.
Id. at ¶ 4 (emphasis added). Once appointed by a court, "judges pro tempore shall have all the power and authority of the judges of that court during the period of appointment . . ." Utah R. J. Admin. 11-202(4)(C).
In Salt Lake City v. Ohms, 881 P.2d 844 (Utah 1994), the Utah Supreme Court, in striking down a statute which permitted court commissioners to enter final judgments of conviction and impose sentences in criminal cases, held that court commissioners lack the authority to perform "core judicial functions." See id. at 855. "While court commissioners, as 'quasi-judicial officers,' . . . may perform many important functions in assistance to courts of record, . . . they are not duly appointed judges and thus may not exercise core judicial functions without violating article VIII of the Utah Constitution." Id. at 851 (citations and footnotes omitted). In State v. Thomas, 961 P.2d 299 (Utah 1998), the court held that the issuance of search warrants is a core judicial function and, as such, may not be performed by a court commissioner. See id. at 303.
The Utah Supreme Court made clear in Ohms that its holding did not extend so far as to invalidate the provision of the Utah Constitution permitting judges pro tempore to exercise judicial power. In his concurring opinion, Justice Howe emphasized that Article VIII, section 4 was the only mechanism by which non-active judges could constitutionally exercise judicial power.
Because of the foregoing well-reasoned authorities, I am led to conclude that article VIII, section 4 provides the exclusive means by which the authority to perform judicial duties may be delegated to a person other than an active article VIII justice or judge, to wit, 'the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties.' Utah Const. art. VIII, ¶ 4. I agree with the majority that the legislature is not free to authorize by statute other persons, such as commissioners, to enter final judgments and impose sentence in criminal misdemeanor cases or perform other core judicial functions.
Ohms, 881 P.2d at 856-57 (Howe, J., concurring). The majority voiced its support for Justice Howe's conclusion, making clear that judges pro tempore may constitutionally perform judicial functions. See id. at 849 n. 11.
Rule 11-202 of the Utah Supreme Court Rules of Professional Practice requires that judges pro tempore must, among other things, be appointed by the Chief Justice of the Supreme Court of Utah following a background check by the Administrative Office, and must "possess ability in the types of cases to be assigned . . ." Utah R. J. Admin. 11-202(1)(B). Penman does not dispute that Commissioner Arnett was appointed judge pro tempore by Chief Justice Richard Howe or that Commissioner Arnett was otherwise qualified to serve as judge pro tempore.
Penman does argue, however, that Commissioner Arnett, who ordinarily served in the family law court, lacked "ability in the types of cases to be assigned," in this case a criminal matter requiring the issuance of a search warrant. The rules regarding the qualifications of judges pro tempore, however, do not require that a judge pro tempore have particular "experience" or "expertise" in the types of cases to be assigned, only "ability." Id. Judge Noel's recommendation of Commissioner Arnett for appointment as judge pro tempore states that "[d]omestic matters have been heard by Commissioner Arnett for several years, and he is very familiar with other matters requiring a judge's signature." (Arnett Recommendation Letter, attached as Ex. C to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.) (emphasis added). Judge Noel's letter also indicates that Commissioner Arnett had previously served as a judge pro tempore. (See id.) In addition, Chief Justice Howe's order of appointment states that Commissioner Arnett was "appointed to hear cases scheduled from September 15 through 17, 1999, in the Third District Court," and does not in any way limit Commissioner Arnett's authority to matters involving family law. (Order Appointing Judge Pro Tempore, attached as Ex. D to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.) Penman has not raised any evidence that Commissioner Arnett, a commissioner of the Utah courts who had previously served as judge pro tempore, lacked the "ability" to preside over criminal matters or issue search warrants.
When Commissioner Arnett signed the search warrant for 737 North Starcrest Drive, he was acting not as a court commissioner, but as a duly appointed judge pro tempore with the power, under Article VIII, section 4 of the Utah Constitution, to perform the functions of a judge. Accordingly, Commissioner Arnett did have authority to sign the search warrant for Penman's home.
II. Sufficiency of affidavit in support of probable cause
Penman argues that, even if Commissioner Arnett had authority to sign the search warrant, the warrant itself was not supported by probable cause. The Fourth Amendment prohibits the issuance of a warrant except upon probable cause. See United States v. Brown, 984 F.2d 1074, 1076 (10th Cir. 1993). Probable cause requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). A judge's task in determining whether probable cause exists to search a search 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 is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983), quoted in United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001). A judge's decision to issue a warrant is "entitled to 'great deference' from the reviewing court." Id.; United States v. Le, 173 F.3d 1258, 1265 (10th Cir. 1999). The reviewing court must only ask "whether, under the totality of the circumstances presented in the affidavit, the [judge] had a substantial basis for determining that probable cause existed." Tuter, 240 F.3d at 1295 (internal quotations omitted).
When a confidential informant is the source of the information presented in an affidavit, the affidavit must contain information supporting the veracity, reliability, or basis of knowledge of the informant, or must provide corroboration of the informant's allegations. See id.; Brown, 984 F.2d at 1077. Here, the information provided by the confidential informant, that "a male Hispanic known as 'Tavieso' was engaged in a narcotics distribution operation at 737 North Starcrest Drive," is not supported by facts to support the informant's veracity, reliability, or basis of knowledge. (Affidavit for Search Warrant at 2, attached as Ex. A to Govt.'s Mem. in Opp. to Mot. to Suppress.) For example, the affidavit does not disclose how the informant came across this information — whether he/she was personally involved in Penman's alleged narcotics distribution operation, whether he/she was told the information by someone else, etc. Nor does the statement that "[Penman] has been arrested for drug related offenses in the past" demonstrate the likelihood of criminal activity in Penman's home at the time Detective Siebert applied for the search warrant. (Id. at 4.) Finally, the bald assertion that someone was distributing drugs out of the home at 737 North Starcrest does not provide a high degree of detail or any "predictive information" that police could use to verify the confidential tip. See Tuter, 240 F.3d at 1295-96, citing Gates, 462 at 245 (anonymous tip was sufficient to establish probable cause because it contained "a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties not easily predicted.")
The second individual mentioned in Detective Siebert's affidavit told the police that he/she had purchased drugs from Penman at 737 North Starcrest. Penman is correct that this individual, which the affidavit refers to as a "concerned citizen," received his/her information only through the commission of a crime, and is therefore more accurately described as a confidential informant. Penman has not shown, however, that the label "concerned citizen" was used by Detective Siebert in a deliberate attempt to mislead Commissioner Arnett as to the reliability of the informant. Indeed, Detective Siebert's affidavit readily discloses the fact that this individual obtained his/her information by purchasing drugs from Penman. (See Affidavit for Search Warrant at 2, attached as Ex. A to Govt.'s Mem. in Opp. to Mot. to Suppress.) "[T]he reference to a 'concerned citizen' standing alone may have been misleading; but the affidavit also disclosed the existence of the informant's criminal [background], and the usage 'concerned citizen' — although unwise — may only have been intended to make clear that the source was not a regularly used confidential informant." United States v. Arestigueta, No. 97-2149, 1998 WL 1247093 (1st Cir. June 10, 1998).
The third individual mentioned in Detective Siebert's affidavit told Detective Siebert that he/she had witnessed "short term traffic coming to the listed premises . . . [and] that the short term traffic was suspicious because they would not go [to] the front door but knock on a basement window and once inside, the people would only stay two or three minutes before leaving." (Affidavit for Search Warrant at 2, attached as Ex. A to Govt.'s Mem. in Opp. to Mot. to Suppress.) Penman concedes that this information was received from a concerned citizen, rather than by a confidential informant. (See Def.'s Mem. in Supp. of Mot. to Suppress at 13-14.) The Tenth Circuit has concluded that "when examining informant evidence used to support a claim of probable cause for a warrant, or a warrantless arrest, the skepticism and careful scrutiny usually found in cases involving informants . . . is appropriately relaxed if the informant is an identified victim or ordinary citizen witness." Walker v. Oklahoma City, No. 98-6457, 2000 WL 135166, at *6 (10th Cir. Feb. 7, 2000). This relaxed standard is reasonable, the Tenth Circuit has explained, because a citizen/neighbor eyewitness [has] . . . no apparent ulterior motive for providing false information." United States v. Gagnon, 635 F.2d 766, 768 (10th Cir. 1980), cert denied, Gagnon v. United States, 451 U.S. 1018 (1981); accord United States v. Downes, No. 00-40084-01-SAC, 2001 WL 121951, at *4 n. 1 (D. Kan. Jan. 12, 2001).
Here, while the information from this concerned citizen need not be closely scrutinized, no indication is given about when the observation was made by the concerned citizen. The timeliness of the information in a search warrant affidavit is an important consideration. See United States v. Grubb, No. 95-5103, 1996 WL 200326, at *3 (10th Cir. Apr. 25, 1996); Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), quoted in United States v. Rahn, 511 F.2d 290, 292 (10th Cir. 1975) ("the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.")
The final piece of information recited in the affidavit was that a baggy containing cocaine residue was discovered in the trash bins at 737 North Starcrest. This evidence came from Detective Siebert's controlled trash cover of the home. Penman asserts that, because the trash bins were located at the curb, Detective Siebert's controlled trash cover does not conclusively demonstrate that the baggy was placed in the trash by Penman, as opposed to a neighbor or passer-by. The courts have consistently held, however, that evidence of drug residue discovered in a defendant's trash may be used to support a search warrant. See California v. Greenwood, 486 U.S. at 37-38 (holding valid officers' use of evidence of drug activity obtained from search of trash set out for pickup in support of a search warrant); United States v. Long, 176 F.3d 1304 (10th Cir. 1999) (same); Le, 173 F.3d 1258, 1266-67 (stating, without comment, that police officer's discovery of used bag with drug residue in suspect's trash supported a finding of probable cause). Detective Siebert confirmed that the trash bins belonged to the occupants of 737 North Starcrest by finding letters addressed to that residence in the bins. While the controlled trash cover does not indisputably demonstrate that Penman possessed drugs in the home and then placed a baggy previously containing these drugs in the trash, it does suggest a "fair probability" that evidence of illegal drug activity would be discovered in Penman's home.
Penman also argues that Detective Siebert intentionally or recklessly omitted from his affidavit the fact that the trash bins involved in the controlled trash cover were at the curb awaiting pickup and were thus accessible by people not living in Penman's home. An officer violates the Fourth Amendment if he or she "'knowingly and intentionally, or with reckless disregard for the truth,' include[s] false statements in an affidavit filed in support of a search warrant." United States v. Tisdale, No. 99-3379, 2001 WL 378263, at *6 (10th Cir. Apr. 16, 2001), quoting Franks v. Delaware, 438 U.S. 154, 155 (1978). "The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." Tisdale, 2001 WL 378263, at *6; United States v. McK issick, 204 F.3d 1282, 1297 (10th Cir.2000). "The false statement or omission must, however, be 'necessary to the finding of probable cause' in order for the fruits of the search to be suppressed." Tisdale, 2001 WL 378263, at *6, quoting Franks, 438 U.S. at 155.
Penman has not established that the omission of the term "curbside" in reference to the trash bins was an intentional or reckless act by Detective Siebert, as opposed to a mere oversight. "Allegations of negligence or innocent mistake are insufficient" to give rise to a Franks violation. United States v. Owens, 882 F.2d 1493 (10th Cir. 1989). Furthermore, even had the term "curbside" been intentionally or recklessly omitted, it is difficult to see how the absence of this term is necessary to the finding of probable cause. Police may only search trash which is outside of the homeow ner's zone of a reasonable expectation of privacy. See United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999). Trash involved in a controlled trash cover search, therefore, will always be outside the home, and will typically be left curbside for pickup — in both locations, the trash is potentially accessible by persons not living in the home. See Greenwood, 486 U.S. at 37 (trash left at curb for pickup); Le, 173 F.3d at 1266 (same); Long, 176 F.3d. at 1307 (trash left on trailer between alley and defendant's garage). The addition of the term "curbside" would only have indicated to the issuing judge that Detective Siebert performed his controlled trash cover at Penman's home in the manner that police typically perform controlled trash covers. The omission of the term "curbside" in reference to Penman's trash bins, therefore, did not violate the Fourth Amendment.
In this case, the evidence obtained from the controlled trash cover also provides independent corroboration of the other information described above. In United States v. Le, 173 F.3d 1258 (10th Cir. 1999), the Tenth Circuit concluded that a police officer's search of a suspect's trash and discovery of a used bag containing drug residue helped corroborate information received from confidential sources. See id. at 1266, cited in Danhauer, 229 F.3d at 1006. Here, as in Le, Detective Siebert's discovery of drug residue in Penman's trash bolsters the reliability of the confidential witnesses' reports that Penman was selling drugs out of his home. See Danhauer, 229 F.3d at 1006 ("When there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant.")
Under the totality of the circumstances in this case, the search warrant for Penman's home was supported by probable cause. The sum of the information from three separate witnesses, especially when independently corroborated by the evidence obtained through the controlled trash cover, does suggest "a fair probability that contraband or evidence of a crime [would] be found" in Penman's home." Gates, 462 U.S. at 238, quoted in Tuter, 240 F.3d at 1295; see also Le, 173 F.3d at 1265 (finding that affidavit reciting reports of two confidential informants, as well as evidence of drug residue in defendant's trash discovered by police during controlled trash cover, established probable cause).
III. Particularity of the search warrant
The Fourth Amendment requires that search warrants describe both the place to be searched and the things to be seized with particularity. See United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993), citing Stanford v. Texas, 379 U.S. 476, 485 (1965). "The search should be confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Brown, 984 F.2d at 1077 (internal quotation omitted). In this case, Penman complains that the search warrant, which authorized the seizure of, among things, "other fruits and instrumentalities related to the crime of possession or distribution of a controlled substance," was overbroad. (Search Warrant at 1, attached as Ex. B to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.)
The warrant's authorization to search for "other fruits and instrumentalities" of drug activity follows a lengthy and specific list of items for which police were authorized to search:
Cocaine, further described as a white crystalline substance in powder, solid, or rock form; material related to the possession or distribution of cocaine including balloons, scales, measuring devices and materials used to cut or dilute cocaine; and narcotic paraphernalia described as syringes, bent spoons, pipes or tubes used to inhale or smoke cocaine.
Articles of personal property tending to establish and document sales of a controlled substance including U.S. Currency, buyer and seller lists, and other documentation of sales of a controlled substance; articles tending to establish the identity of persons in control of the premises sought to be searched including rent receipts, utility receipts, and addressed envelopes. Documentation, physical or electronic, which demonstrates that other persons or homes are involved in the distribution of controlled substances; and other fruits or instrumentalities related to the crime of possession or distribution of a controlled substance.
(Id.) (emphasis added). This search warrant in this case, which contained a general catch-all category after a list of specific items, is similar to the warrant in United States v. Brown, 984 F.2d 1074 (10th Cir. 1993). In Brown, the search warrant authorized police to search for "a Quasar Microwave, serial number AW702701085[, a] brown Cedar chest that is faded on the top lid and has a tray on the inside, approximately 3' wide and 4' in length and approximately 2 1/2' to 3' in depth, [and] any other item which the Officers have determined or have reason to believe is stolen, while executing this search warrant." Id. at 1076. The Tenth Circuit held that this final clause, authorizing the search for "any other item which the Officers have determined or have reason to believe is stolen," was not descriptive and did not limit the authority of the officers conducting the search. See id. at 1077, citing United States v. LeBron, 729 F.2d 533 (8th Cir.1984). Here, as in Brown, the search warrant's authorization to search for "other fruits or instrumentalities related to the crime of possession or distribution of a controlled substance" in Penman's home was unconstitutionally overbroad.
"Where a warrant contains both specific as well as unconstitutionally broad language, the broad portion may be redacted and the balance of the warrant considered valid." United States v. Hugoboom, 112 F.3d 1081, 1087-88 (10th Cir. 1997); Brown, 984 F.2d at 1078. "In such cases, only those items confiscated under the overbroad portion of the warrant are suppressed." Id. Penman has not identified any evidence, however, that he claims was seized under the "other fruits and instrumentalities" portion of the search warrant, rather than under the portion of the search warrant which provides a specific and particularized list of items for which police could search. Accordingly, Penman's motion to suppress evidence on the grounds that portions of the search warrant were overbroad is denied.
IV. Application of the Leon Good-Faith Exception
Even were the search warrant in this case unsupported by probable cause, the Leon good-faith exception would still permit introduction of the evidence discovered in Penman's home. Evidence seized under an invalid search warrant "need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral [judge]." Danhauer, 229 F.3d at 1006. In assessing the good-faith exception, the court's "inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." United States v. Leon, 468 U.S. 897, 922 n. 23 (1984), quoted in United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989). "This determination is to be made taking into account 'all of the circumstances,' . . . and assuming that the executing agents 'have a reasonable knowledge of what the law prohibits.' Id., quoting Leon, 468 U.S. at 920 n. 20.
The Supreme Court has identified four situations in which the good-faith exception to the exclusionary rule does not apply. See id. at 922-23.
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth. . . . Second, the exception does not apply when the issuing magistrate wholly abandons her judicial role. . . . Third, the good-faith exception does not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. . . . Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
Danhauer, 229 F.3d at 1007 (internal citations and quotations omitted). Penman argues that the first three situations apply in this case.
As to the first situation, as discussed elsewhere in this order, Penman has not demonstrated that Detective Siebert willfully or recklessly omitted pertinent information from his affidavit, or that the issuing judge was misled by any omission. (See supra at 14 n. 1, infra at 21-23.) As to the second situation, Penman has not demonstrated that Commissioner Arnett "wholly abandoned his judicial role." Penman has raised no evidence to support his conclusory allegations that Commissioner Arnett "was acting as a rubber stamp for the police" in signing the warrant. (Def.'s Mem. in Supp. of Mot. to Suppress at 10.) To the contrary, the evidence demonstrates that Commissioner Arnett based his decision to issue a search warrant on a fairly lengthy affidavit containing firsthand reports from two confidential informants, a concerned citizen, and a police officer, as well as background information on the suspect's past gang activity and criminal record. Finally, as to the third situation, Penman has failed to demonstrate that Detective Siebert's affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in the existence of probably cause completely unreasonable. Even were the court to have concluded that the affidavit did not contain probable cause, the fact that the affidavit contained reports from four independent witnesses, including a citizen witness and a police officer, suggests that official belief that the affidavit did in fact contain probable cause was not "entirely unreasonable." Leon, 468 U.S. at 923; accord Bishop, 890 F.2d at 216-17. Even had the search warrant been unsupported by sufficient evidence to establish probable cause to search Penman's home, therefore, police were entitled to rely on the warrant in a good faith belief that the warrant was proper.
V. Execution of the search warrant
Finally, Penman challenges the issuance and execution of a no-knock search 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, 387 (1997); see also 18 U.S.C. § 3109. The presumption in favor of announcement, however, gives way when exigent circumstances exist. See United States v. Gay, 240 F.3d 1222, 1228 (10th Cir. 2001). "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 of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394 (1997), quoted in Gay, 240 F.3d at 1228. "This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Richards, 520 U.S. at 394. Similarly, where a judge issues a no-knock search warrant, that judge must determine whether the affidavit supporting the warrant request sufficiently describes exigent circumstances that would justify a no-knock warrant. See United States v. Thigpen, No. 91-1128, 1992 WL 252453, at *3 (10th Cir. Sept. 29, 1992); accord Richards, 520 U.S. at 396 n. 7 (stating in dicta that "[t]he practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time.").
Applying these principles to the facts of this case, the court concludes that the issuance of a no-knock search warrant for Penman's home did not violate the Fourth Amendment. In support of his request for a no-knock warrant, Detective Siebert stated in his affidavit that "physical harm may result to any person if notice were given." (Affidavit for Search Warrant at 4, attached as Ex. A to Govt.'s Mem. in Opp. to Def.'s Mot. to Suppress.) Detective Siebert noted that: (1) Penman was suspected of currently dealing drugs, (2) Penman was a documented member of the Twenty First Street gang, members of which, in Detective Siebert's experience, "have a high propensity for violence and commonly carry guns," and (3) that Penman's criminal history revealed a pattern of arrests for violent offenses, including arrests for homicide, aggravated robbery, carrying a concealed weapon, and drug related offenses. (Id. at 5.) Penman's criminal background and propensity for violence is highly relevant to a finding of whether Detective Siebert's affidavit demonstrated a reasonable suspicion that police would be placed in danger if they announced their presence prior to entering. See United States v. King, 222 F.3d 1280, 1285 (10th Cir. 2000) (holding that no-knock entry was justified where police demonstrated, among other things, that defendant and his associate were "gang members known to carry firearms" and that defendant had shown a willingness to brandish a firearm in the past); Gay, 240 F.3d 1229.
As an additional grounds for a no-knock warrant, Detective Siebert stated in his affidavit that "the property sought may quickly be destroyed, disposed of, or secreted" if officers' presence was announced prior to entry. (Id. at 4.) In support of this statement, Detective Siebert commented in his affidavit that "[a]ffiant believes it is necessary for search teams to get as close as possible to the named premises before being discovered because persons involved in an on-going narcotics distribution operation will attempt to destroy the narcotics if they believe the narcotics will be discovered by law enforcement personnel." (Id.) The fact that drugs can often be easily destroyed by persons who suspect the approach of police can justify the issuance of a no-knock warrant. See Thigpen, 1992 WL 252453, at *3 (in crack cocaine case, concluding that "the County Court judge was entitled to authorize an unannounced entry to preserve such easily destroyed evidence"); accord Richards, 520 U.S. at 395 (noting "disposable nature" of cocaine in finding sufficient justification for unannounced entry).
Penman further asserts that Detective Siebert knowingly or recklessly omitted from the affidavit the fact that he had been previously been in Penman's home, that Penman's mother had been cooperative with police, and that Detective Siebert had not seen any weapons in plain view in Penman's bedroom. An officer violates the Fourth Amendment if he or she "'knowingly and intentionally, or with reckless disregard for the truth,' include[s] false statements in an affidavit filed in support of a search warrant." United States v. Tisdale, No. 99-3379, 2001 WL 378263, at *6 (10th Cir. Apr. 16, 2001), quoting Franks v. Delaware, 438 U.S. 154, 155 (1978). "The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." Tisdale, 2001 WL 378263, at *6; United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000). "Allegations of negligence or innocent mistake are insufficient" to give rise to a Franks violation. United States v. Owens, 882 F.2d 1493 (10th Cir. 1989). A defendant must demonstrate that the police officer who drafted the affidavit in support of a search warrant request "in fact entertained serious doubts as to the truth of his allegations." Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991). Additionally, if a defendant succeeds in showing the willfullness or recklessness of an omission, the "omission must . . . be 'necessary to the finding of probable cause' in order for the fruits of the search to be suppressed." Tisdale, 2001 WL 378263, at *6, quoting Franks, 438 U.S. at 155.
Penman has raised no evidence which would demonstrate that the omission of any reference to Detective Siebert's previous visit to the Penman home was knowing or reckless, as opposed to merely negligent, or that Detective Siebert "entertained serious doubts as to the truth of his allegations." Detective Siebert may have believed, for example, that a prior investigation for home invasion, in which he was in the Penman home only briefly and did not interact with the Defendant, was not relevant to a search warrant relating to drug distribution. Furthermore, even were the omissions by Detective Siebert purposeful, Penman has not shown how they were necessary to the judge's finding that a no-knock warrant was justified. The fact that the Defendant's mother was cooperative with police does not establish that the Defendant would also be cooperative with police, nor does it shed light on whether the Defendant would be likely to react violently or destroy evidence in response to a police search. Similarly, the fact that Detective Siebert did not witness any weapons in plain view in Penman's bedroom does not establish that there were in fact no weapons in Penman's bedroom or elsewhere in the home (amply demonstrated by later police discovery of a readily-accessible weapon under the pillow on Penman's bed). The information which Penman argues should have been included in Detective Siebert's affidavit, therefore, does not appear to be crucial to the issuing judge's finding that a no-knock warrant was justified.
Accordingly, the court concludes that the issuance and execution of a no-knock warrant did not violate the Fourth Amendment.
Order
For the foregoing reasons, Defendant John Travis Penman's motion to suppress evidence is DENIED.