Opinion
Criminal Action No. 3:97-CR-48-H
April 20, 1999.
MEMORANDUM OPINION
In this case, the United States alleges that various defendants conspired to use an interstate facility to promote prostitution in the Commonwealth of Kentucky. The Court now considers Defendants' various exceptions to the Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendation denying each of their motions to suppress evidence. The exceptions address three general areas of the Magistrate's findings: (1) the constitutionality of searches made of Defendant William Coomer's residence and Defendant Mark Talley's residence on February 16, 1996; (2) government interference with Defendant Coomer's Sixth Amendment right to counsel; and (3) outrageous conduct on behalf of the police involved with the investigation of this case.
Defendants also filed Motions to Dismiss based on the theory that the violations alleged here do not sufficiently implicate interstate commerce and therefore violate the Commerce Clause. The Court has issued a separate memorandum and order addressing these motions.
The Court will address each of these challenges in turn. As to all but one, the Court concurs with the Magistrate's conclusions. The Court respectfully reaches a different conclusion than the Magistrate as to the reasonableness of the entry on the Talley search of February 16, 1996.
I.
The facts of this case are rather detailed. For convenience, the Court hereby adopts Magistrate Judge James D. Moyer's Findings of Fact. See Findings of Fact, Conclusions of Law and Recommendation, Feb. 10, 1999, at 2-6. The Court will now turn to Defendants' specific objections.
Defendants allege that the searches of their homes were unreasonable, and in violation of the Fourth Amendment of the United States Constitution. First, they allege the Affidavits filed in support of the search warrants suffer from misstatements, omissions, and stale information, undermining the probable cause requirement. They also allege the search warrants failed to describe items to be seized with sufficient particularity to comport with the Fourth Amendment. Defendant Coomer also complains that the search was unnecessarily invasive of his privacy rights because it occurred at night, while he was absent, and resulted in destruction of his property. Defendant Talley asserts that the officers failed to knock and announce their presence before entering his home, rendering the search there unreasonable. As a result of all these complaints, the defendants allege they are entitled to have the fruits of the searches suppressed.
A. Misrepresentations, Omissions, and Staleness in Search Warrant Affidavits.
Both Defendant Talley and Defendant Coomer allege that the lead investigator of this case, St. Matthew's Police Detective Brad Jeffrey ("Det. Jeffrey") made several material misrepresentations or omissions in the affidavits submitted to support his search warrants, executed on February 16, 1996. According to the hearing testimony, Det. Jeffrey relied on confidential informant Jill Shofner to provide information regarding the search of Coomer's residence. He relied on informant Michele Devania for information in the affidavit in support of the search warrant for Talley's home. Defendant Coomer's Exceptions to the Magistrate's Recommendation include eight material misrepresentations or omissions. Defendant Talley makes similar objections. Both defendants allege the affidavits contained stale information. Defendant Coomer attacks the affidavits for omitting facts about the informants' ongoing drug use and prostitution activities during the course of the investigation, while serving as informants. These allegations would defeat the probable cause necessary to support the search warrants, according to Defendants.
The following is a list of the misrepresentations or omissions enumerated by Defendant Coomer:
(A) Detective Jeffrey did not receive information from the confidential informant, Jill Schoffner, on February 10, 1996;
(B) Detective Jeffrey did not receive information from Jill Schoffner at 1:00 p.m. on February 10, 1996;
(C) Detective Jeffrey did not know Jill Schoffner for a Period of six (6) months as stated in the Search Warrant Affidavit;
(D) Jill Schoffner did not provide Detective Jeffrey with information leading to the arrest and recovery of evidence in Felony crimes as set forth in the Affidavit;
(E) Detective Jeffrey omitted numerous facts in the Search Warrant Affidavit which infringed upon Ms. Schoffner's credibility;
(F) Ms. Schoffner was never present in Mr. Coomer's home to observe records related to credit card transactions used in the illegal prostitution as alleged in the Search Warrant Affidavit;
(G) Ms. Schoffner never witnessed transactions between Mr. Coomer and Mr. Talley regarding prostitution monies paid as alleged in the Search Warrant Affidavit;
(H) Ms. Schoffner never provided Detective Jeffrey with any updated information regarding Mr. Coomer's activities after December 26, 1995.
See Defendant Coomer's Exceptions to the Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendations, p. 2 [note Shofner misspelled in original].
Mr. Talley's objections include: (1) Detective Jeffrey did not obtain information from Michele Devania on February 10, 1996; (2) Detective Jeffrey had not known informant Devania for six months as stated in the affidavit; (3) Devania had not provided information that led to arrest or recovery of evidence in multiple felony crimes as stated in the affidavit, but only as to one felony crime; (4) Devania never told Jeffrey that there were fifteen phone lines at the Talley residence; (5) Devania never told Jeffrey that Talley had used Steve Rubin's Chevy Blazer to transport escorts to customer calls; (6) Devania never told Det. Jeffrey that Talley lacked necessary business licenses to operate in St. Matthews; (7) Devania never told Det. Jeffrey that a majority of Talley's transactions involving illegal prostitution were credit card transactions; (8) testimony conflicted with the affidavit statement that Devania told Det. Jeffrey that three address books were maintained at the Talley residence. See Defendant Talley's Exceptions to Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendations, p. 5-7.
1. Misstatements.
Once an evidentiary hearing is held regarding allegedly false statements in an affidavit, the defendants must show by a preponderance of the evidence that the affidavits contained false statements made knowingly or in reckless disregard for the truth. United States v. Henson, 848 F.2d 1374, 1381 (6th Cir. 1988). Then the Court "must find that the challenged statements are necessary to a finding of probable cause." United States v. Hill, 142 F.3d 305, 310 (6th Cir. 1998) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)).
The Magistrate Judge carefully considered each of the alleged misstatements in both Search Warrant Affidavits at issue in this case. Having thoroughly reviewed the transcripts of the Hearings before the Magistrate Judge, the Court agrees with the Magistrate on each of the alleged misstatements, and hereby incorporates by reference the Magistrate's conclusions regarding them. See Findings of Fact, Conclusions of Law and Recommendation, Feb. 10, 1999, at 7-11.
2. Omissions
Defendant Coomer argues statements in the Search Warrant Affidavit were based on information supplied by an unreliable informant. More specifically, Coomer argues that because Jill Shofner continued working as a prostitute and abused controlled substances and alcohol during the period she served as an informant, Det. Jeffrey misled the reviewing judicial officer as to Shofner's credibility. The Court agrees with the Magistrate Judge's conclusion. Including details about an informant's criminal or questionable activities is not required of affiants. Nor is it a requirement that informants be above reproach. The affidavit "need only explain that the officer has found the informant to be reasonably reliable." United States v. Young, 877 F.2d 1099, 1103 (1st Cir. 1989) (citing Illinois v. Gates, 462 U.S. 213, 230-39 (1983)). Det. Jeffrey testified that he was consistently able to verify information provided by both informant Shofner and informant Devania, either by consulting with other informants or through his own investigations and surveillance.
3. Staleness
Defendants Coomer and Talley also challenge the Search Warrant Affidavits for containing stale information. Whether information relied on in an affidavit is stale depends on the nature of the alleged wrongdoing. "[I]f an affidavit recites activity indicating protracted or continuous conduct, time is of less significance." United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983), quoted in United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988). Here, the alleged wrongdoing was an ongoing criminal enterprise. The affidavit cited a time frame and the information provided by the informants covered the time frame. Detective Jeffrey's own investigations corroborated information gathered from the informants. Accordingly, this Court concurs with the Magistrate's conclusion that the information relied upon in the affidavit was not stale.
"A probable cause determination by a judicial officer issuing a search warrant must be upheld if, under the 'totality of the circumstances,' the issuing officer had a 'substantial basis' for finding probable cause." United States v. Hill, 142 F.3d 305, 310 (6th Cir. 1998) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983). Having concurred with the Magistrate's findings on misstatements, omissions, and staleness in the Search Warrant Affidavits, the Court finds that the totality of circumstances regarding the affidavits in this case supports a finding of probable cause.
B. Allegation that Search Warrants Lacked Particularity in Describing Items to be Seized
Defendants Coomer and Talley next complain that the description of items to be seized in the searches of their homes was too broad to pass constitutional scrutiny. The pertinent parts of each search warrant are the same and describe the items to be seized as follows:
Any phone lines, records, both financial and personal, customer lists, employee lists, notebooks, photographs, audio tapes, video tapes, credit card receipts or expenditures relating to the involvement of illegal prostitution. Any monies, property, investments, purchases, or transportation derived from illegal prostitution. Any telephone system, answering machines, ringmaster, cellular, or paging systems used to further the involvement in illegal prostitution.See Defendant's Exhibits 1 and 2 (Search Warrants for Coomer and Talley residences).
The Court notes that the circumstances of a particular case guide the analysis of whether a search warrant is too general or too broad. United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991) (citing Henson, 848 F.2d at 1383); see also White Fabricating Co. v. United States, 903 F.2d 404, 411 (6th Cir. 1990). The goal is to prevent general rummaging through the private belongings of individuals. Blakeney, 942 F.2d at 1026. Where specific descriptions are available, they are to be provided by the swearing officer. Id.
In a much more complicated prostitution case, the Ninth Circuit faced a similar challenge. United States v. Washington, 797 F.2d 1461, 1472 (9th Cir. 1986). There the search warrant allowed seizure of:
"records, notes, documents indicating [Defendant's] involvement and control of prostitution activity including but not limited to, photographs, handwritten notes, ledger books, transportation vouchers and tickets, hotel registration, receipts, bank documents as deposit slips, checks and records, toll records, bail bondsman's receipts and medical billings . . ."Id. at 1472 (quoting search warrant). That court concluded "the phrase 'involvement and control of prostitution activity' is narrow enough to satisfy the particularity requirement of the Fourth Amendment." Id. This Court agrees with the Ninth Circuit, and with the same conclusion drawn by the Magistrate Judge in this case. The general description of items to be seized is limited by linking it with the crime being investigated. The nature of the crime, a prostitution business, is one with a paper trail justifying the use of relatively broad terms in the search warrant for items to be seized. Detective Jeffrey attempted to list the various items expected to be associated with the alleged criminal enterprise.
It is true that "a proper warrant must allow the executing officers to distinguish between items that may and may not be seized." United States v. Leary, 846 F.2d 592, 602 (10th Cir. 1988). Defendants argue that the warrants in this case were so broad that police executing could not determine at the site what was to be seized and what was to be left. However, that was not a failing of the warrant so much as it was a circumstance that the officers faced upon execution. The papers seized were intermingled with various other records and items through the residences. That the officers lacked the experience and expertise to handle the multitude of evidence at the scene is not a failing of the search warrant.
Even finding the warrant adequately particular in its description of items to be seized, the Court must consider the scope of the search and seizure as it related to the warrant. The testimony was consistent that the officers were to take anything that looked as though it could fit the scope of the search warrant, and members of the Commonwealth Attorney's office would sort through it at the St. Matthew's Police station.
A number of courts have addressed the problems inherent in executing searches that call for seizure of various documents and items related to criminal activity that are intermingled with other irrelevant materials. United States v. Hargus, 128 F.3d 1358, 1653 (10th Cir. 1997); United States v. Shilling, 826 F.2d 1365, 1369-70 (4th Cir. 1987), overruled on other grounds in United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994); United States v. Tamura, 694 F.2d 591 (9th Cir. 1982); United States v. Schandl, 947 F.2d 462, 465-66 (11th Cir. 1991). Many acknowledge that at times, practical considerations justify seizing more than what falls within the scope of the warrant to sort the evidence elsewhere.
In this case, the testimony indicates the officers discovered much more than anticipated and that logistics precluded a timely sorting of it at the defendants' residences. Testimony shows that the St. Matthew's Police Department lacked the workforce and expertise to sort the evidence at the scene. That lack of expertise is apparent from the Commonwealth Attorney's decision to contact federal authorities upon initial inspection of the evidence the night it was seized. Furthermore, items requested have been returned and the defendants point to no prejudicial evidence beyond the scope of the warrant that resulted from the seizure. Rather, Coomer complains mostly about personal items and money seized that are not prejudicial at all. Ultimately, "[t]he exclusionary rule does not compel suppression of evidence properly covered by a warrant merely because other material not covered by the warrant was taken during the same search, especially where, as in this case, such other materials were not received into evidence against the defendant." Shilling, 826 F.2d at 1369.
C. Coomer's Other Execution Complaints about the Search.
Having dealt with the particularity challenge to the search warrant and the breadth of the search, the Court now turns to Coomer's other execution related complaints. Defendant Coomer challenges the execution of the search on several grounds. He complains about the search's timing at night, that it was conducted in his absence, and that it was unnecessarily destructive of his home.
This Court concurs with all of the Magistrate Judge's conclusions regarding these objections. The logic of executing the search warrants simultaneously was testified to and is readily apparent. As Det. Jeffrey indicated, the escort service community has a swift communication network. The allegation in this case is one of conspiracy. Had word reached Talley or Coomer that his home had been searched separately, the word could have spread quickly to the other, compromising the investigation. Thus, that the police decided to execute the warrant against Talley at night necessarily and reasonably dictated the time to execute the warrant against Coomer.
D. Officers Failed to Knock and Announce at Talley's Residence.
The question of whether the police officers violated the Supreme Court's "knock and announce" rule seems to have arisen as something of an afterthought. In the process of pursuing other issues, it became apparent that the officers had not announced their presence in compliance with the rule. Though the manner in which this matter arose may have hampered somewhat the development of the issue, the Court is now confident that the transcript presents a full and accurate picture of events.
Defendant Talley says that because the officers entered his home without knocking and announcing their presence, their search and seizure was unreasonable and therefore, unconstitutional. After reviewing the transcripts of the suppression hearings, the Court finds that the officers knocked but did not announce their presence prior to entering Talley's residence. The testimony of the officers involved confirms this conclusion. Det. Jeffrey testified that he did knock but did not announce until he entered. (Hearing Transcript, Volume V, pgs. 45-8). Officer Ethington recalled no knocking prior to entry. (Volume X, p. 139-40). Officer Hupp's testimony confirms Officer Ethington's version. (Volume XI, p. 68-9).
The following are excerpts from Detective Jeffrey's testimony:
Q. [From Mr. Ream]: But did you observe lights in the house?
A. [From Det. Jeffrey]: Absolutely. We could hear — we saw lights, and we could hear people in the home.
Q. Okay. So tell the court what happened. You knocked on the back door, is that right?
A. Correct.
Q. Simultaneously with one in the front or not?
A. No, we didn't knock on the front door. We just — there was only one officer there. We didn't want to have them open the front door and one guy be there and everybody be waiting at the back.
Q. So tell the court what happened.
A. I believe it was Officer Ethington went to the front of the home. I took the rest of them around the rear. We knocked on the door. Nobody answered the door. We couldn't get them to answer. I then went into the house. I had a sledgehammer. Went in through the back door of the house.
Q. You knocked on the back door, and what happened?
A. Nobody answered.
Q. How long did you wait?
A. 30 seconds maybe. I don't know. 30 seconds.
Q. Nobody came?
A. No.
Q. Did you hear any voices inside?
A. We could hear people in there.
Q. What did you announce?
A. Police, search warrant.
Q. It's your testimony that you waited approximately 30 seconds, and what happened?
A. Well, we knocked on the door. Excuse me. When I knocked, I didn't say this is the police. We have a search warrant. I knocked on the door and nobody answered.
Q. Okay.
A. When they failed to answer the door, then I forced entry into the home.
Q. At what point did you announce that —
A. When I was entering the home. After I kicked the door, hit the door.
Q. Police, search warrant?
A. Started yelling police, search warrant.
Q. What happened? Was anyone in that room that you entered?
A. No. They had all apparently congregated in the back room.
(Volume V, pgs. 45-48)
The following is Officer Ethington's Testimony:
Q. [From Mr. Turner]: Before you rammed the door, did you listen or try to listen to see if you could hear anyone inside?
A. Sir, the best I remember, no, sir, we more or less went up, and as soon as — I believe it had a screen or like a glass door, screen door type, and as soon as it opened, Brad hit the door and we went in.
Q. Okay. And so at that them you really never listened to see if you could hear anybody inside or know if anybody was at home?
A. No, sir.
Q. Okay. And again, this was to attempt to continue with the element of surprise that you wanted in executing the warrant?
A. Yes, sir, it was.
Q. Okay. And before you rammed the door and you all went in, was there any attempt to notify the people inside that you were the police and that you were there?
A. As far as knocking, sir, announcing we were there?
Q. Yes.
A. No, sir. It was strictly a dynamic entry.
Q. Again, that was what was discussed as far as the element of surprise goes?
A. Yes, sir, it was.
Q. And after you entered the home, did at some point someone announce police?
A. Yes, sir, Detective Jeffrey was yelling as we was running — he was the first one into the house. He was yelling, search warrant, police, police through the place.
Q. That's after you had rammed the door?
A. Absolutely, sir.
(Volume X, p. 139-40).
The following is Officer Hupp's testimony:
Q. [From Mr. Turner]: Okay. And in order to gain entry, did you use the ram to break in the door?
A.[From Officer Hupp]: I was the last one in coming up the steps, and I don't know if Brad hit the door with his battering ram or if he used it, and I can't honestly remember if he used that ram.
Q. Was he the first one in line?
A. To the best of my knowledge, yes.
Q. Do you remember listening to see if you could hear people inside or not before you rammed the door?
A. No.
Q. Okay. And before the door was rammed, did you knock or announce you were the police, that you were there to execute a search warrant?
A. They shouted, "Police," when we went through the door, I know that, but that's all I remember.
Q. So the first thing— is it fair to say the first thing that happened was you rammed the door and tried to enter the residence as quickly as possible, and as you entered you yelled, "Police"?
A. Right.
Q. That's what happened?
A. Right.
Q. And were you in that line of other officers that entered the residence?
A. I believe I was the last one, which was the third one. There was three of us there.
(Volume XI, p. 68-9).
These facts confirm a series of events which fall narrowly but quite distinctly short of the knock-and-announce requirements. In United States v. Spikes the Sixth Circuit stated,
The focus of the "knock and announce" rule "is properly not on what 'magic words' are spoken by the police," or whether the police rang the doorbell, "but rather on how these words and other actions of the police will be perceived by the occupant." United States v. One Parcel of Real Property, 873 F.2d 7,9 (1st Cir. 1989). The proper trigger point, therefore, is when those inside should have been alerted that the police wanted entry to execute a warrant. See United States v. Smith, 63 F.3d 956, 962 (10th Cir. 1995). . . . This "measuring stick" comports more with the purpose of the rule — that a homeowner "know who is entering, why he is entering, and . . . be given a reasonable opportunity to surrender his privacy voluntarily." LaFave, § 4.8(a) at 599-600.158 F.3d 913, 925 (6th Cir. 1998). Thus, the rule has a valid purpose: to give people an opportunity to voluntarily surrender their privacy and to discourage law enforcement officers from barging into homes unannounced unless there are special reasons for doing so. It accomplishes those objectives by barring the use at trial of any evidence obtained in a search during which officers violate the rule.
An owner or occupier who fails to answer a knock from anyone else is within his rights to deny entry; but one who fails to answer knowing it is the police does so at his peril. Thus, the announcement — making the occupant aware that it is the police at the door — is arguably the most important part of the knock-and-announce requirement. See United States v. Smith, 63 F.3d 956, 962 (10th Cir. 1995) (noting that the Court's holding in Wilson v. Arkansas, 115 S.Ct. 1914 (1995), requires only an announcement). Obviously, a knock followed by a reasonable period of time and a reasonable conclusion that no one is home, as occurred at Coomer's residence, would arguably render a failure to announce reasonable. That is not our case here, however. Jeffrey testified that he heard people in the home. Making the parties inside aware that it was the police at the door and not a casual visitor or nosey neighbor goes to the heart of the reasonableness requirement. The undisputed testimony is that the officers did not announce their presence and purpose until they broke open the door and entered. Talley had no chance to surrender his privacy voluntarily. Thus, the officers clearly disregarded the rule.
As Justice Thomas observed for a unanimous Court in Wilson v. Arkansas, 115 S.Ct. 1914, 1916 (1995),
Although the common law generally protected a man's house as "his castle of defense and asylum," 3 W. Blackstone, Commentaries *288 (hereinafter Blackstone), common-law courts long have held that "when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter." Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1603). To this rule, however, common-law courts appended an important qualification:
"But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . ., for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it. . . ." Ibid., 77 Eng. Rep., at 195-196.
The Court's inquiry does not end there. In Wilson v. Arkansas, 115 S.Ct. 1914, 1916 (1995), the Supreme Court held that common law knock-and-announce procedures "form part of the Fourth Amendment reasonableness inquiry." In other words, the Wilson court left open the possibility that other circumstances and "countervailing law enforcement interests" might justify some flexibility in assessing the reasonableness of an unannounced search. Lower courts must determine the circumstances in which an unannounced search may be reasonable. Id. at 1919. The Sixth Circuit's interpretation of Wilson is that "unless exigent circumstances exist, the failure of state law enforcement officials to knock and announce their presence will render the evidence procured during the ensuing execution of a warrant inadmissible." United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996). The Sixth Circuit "has determined exigent circumstances exist when: '(1) the persons within already know of the officers' authority and purpose; (2) the officers have a justified belief that someone within is in imminent peril of bodily harm; or (3) the officers have a justified belief that those within are aware of their presence and are engaged in escape or the destruction of evidence.'" Id. at 795 (quoting United States v. Finch, 998 F.2d 349, 353 (6th Cir. 1993).
This Court might strongly disagree with the conclusion in Bates that the presence of a handgun in the apartment would not be a potential danger to police that constitutes exigent circumstances. However, this disagreement does not affect our case.
In this case the officers feared detection on the long driveway approach to the house. They hoped to catch the inhabitants in the act of conducting illegal prostitution operations. Had Defendants actually seen the officers on the long approach up the driveway, an unannounced entry might have been permissible because it would be unnecessary. However, that is not our case. Detective Jeffrey testified that the police were not detected. That the police wanted to catch the inhabitants operating the prostitution business upon entry does not justify the unannounced entry here. The nature of this crime is not one that catching the wrongdoers in the act would have created a critical piece of evidence. Neither the United States nor these officers have explained what evidentiary benefit the hoped for surprise would have provided beyond the evidence actually seized. To allow police to use such a justification without a lot more reasons, in essence allows them to create their own exigent circumstances. The Court concludes that to do so would wrongly dilute the rule for this and future cases.
The Talley house was not operating as a brothel. From what the Court has seen in the transcripts, the most the police would have happened upon is the telephone being answered and perhaps money changing hands. In and of themselves such actions are not illegal behavior.
Detective Jeffrey and Commonwealth Attorney Joe Gutman also testified that they had fear that evidence would be destroyed in this case. However, the "officers must have more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing their presence." Bates, 84 F.3d at 795. In Bates, which was a drug case, the court continued,
The mere possibility or suspicion that a party is likely to dispose of evidence when faced with the execution of a search warrant is not sufficient to create an exigency. Nor is the generalized and often recognized fear that destruction of evidence is an inherent possibility during the execution of a warrant adequate ground to find exigent circumstances, although this is more likely to be accepted when the drugs are in easily disposable quantities.Id. (citations omitted).
Detective Jeffrey says that cases like this are likely to result in destruction of evidence. He provides, however, nothing more than this generalized fear or suspicion that it might have happened in this case. He visited Defendant Talley's residence at least two times prior to the February 16, 1996 search. Apparently, those encounters provided no support for the suspicion that evidence would be destroyed if officers executing a search warrant lost the element of surprise.
A generalized fear might be acceptable when it pertains to a known piece of evidence that is easily disposed. Here, the police seemed to have no specific evidence in mind. Indeed, they seized a large volume of papers and materials believed to be related to criminal activity. It seems unreasonable to think that this amount of material could have been destroyed.
If Det. Jeffrey's generalized fear were accepted as the justification for an unannounced entry here, then the same generalized fear would apply in virtually any search case. Such a conclusion would render the common law knock and announce requirement meaningless, removing it from our Fourth Amendment analysis all together. Applying the knock-and-announce rule as part of a reasonableness analysis means the failure to follow the rule must be reasonable in fact, not merely in theory. Therefore, the Court must suppress all evidence seized from Mr. Talley's residence as a result of the search warrant executed there on February 16, 1996.
II.
Defendant Coomer complains that the government attempted to interfere with his Sixth Amendment right to counsel. He bases this complaint on statements made by Jill Shofner to him, encouraging Coomer to fire his defense counsel and cooperate with the authorities investigating charges against Defendant Talley. The Court agrees that Defendant Coomer has failed to show that Shofner was acting as an agent of the government when she made those statements to him. Furthermore, the hearing transcripts show that his defense counsel has provided zealous advocacy throughout this case and, as the Magistrate Judge concluded, Defendant has suffered no harm or prejudice from Shofner's alleged interference.
III.
The final exception raised by Defendant Coomer is that all of the various complaints he has lodged against the authorities investigating this case amount to outrageous conduct, and justify dismissal of the indictment. As the Magistrate Judge noted in his conclusion about the outrageous conduct claim, none of Defendant Coomer's individual arguments were persuasive, and revisiting them combined does not change the results.
Specifically, Defendant Coomer complains of the following misdeeds as evidence of outrageous conduct:
A. Detective Jeffrey lied in his Search Warrant Affidavit in numerous places.
B. Detective Jeffrey failed to exert a reasonable degree of supervision over the activities of his confidential informants, Jill Schoffner and Michele DeVania.
C. Ms. DeVania and Ms. Schoffner continued to engage in prostitution and drug use while operating as confidential informants. This information was known to Detective Jeffrey and he took absolutely no steps to terminate his relationship with Ms. DeVania and Ms. Schoffner.
D. Detective Jeffrey was so vague in his description of items to be seized in the Search Warrant Affidavit that the St. Matthews Police Department executed a blanket warrant and conducted a general search of Mr. Coomer's residence.
E. The manner in which the St. Matthews Police Department executed the search warrant violated the Fourth Amendment in that a general search and seizure of his property was conducted.
F. Ms. Schoffner violated Mr. Coomer's Sixth Amendment right to counsel by continuing to contact him and trying to persuade him to discharge his present counsel.
G. Following the arrest of Mr. Coomer on State charges, Detective Jeffrey developed an intimate, sexual relationship with Ms. DeVania with the knowledge that the Federal prosecution action was eminent.See Defendant Coomer's Exceptions to the Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendations, p. 11-12 [note Shofner misspelled in original].
The Court will enter an Order consistent with this Memorandum Opinion.
ORDER
The above matter having been referred to United States Magistrate Judge James D. Moyer, and the Magistrate having filed his Findings of Fact, Conclusions of Law, and Recommendation, and objections having been filed by Defendants Talley and Coomer, and the Court having made a de novo review of those portions of the Magistrate's Findings of Fact, Conclusions of Law, and Recommendation to which objections have been made, and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant Coomer's motion to suppress and dismiss (Docket Nos. 154, 155, 156, and 163) be and they are DENIED.
IT IS FURTHER ORDERED that Defendant Talley's motion to dismiss the indictment for outrageous conduct on behalf of the police (Docket No. 176) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant Talley's motion to suppress the fruits of the search of his home February 16, 1996 on the basis that the executing officers failed to knock and announce their presence and purpose in violation of the Fourth Amendment of the United States Constitution is hereby GRANTED.