Opinion
Case No. 2:11-cr-35
04-06-2012
United States of America, Plaintiff, v. Todd Allen Lamb, et al. Defendants.
Judge Michael H. Watson
OPINION AND ORDER
Defendants move to suppress evidence and statements made by Todd Lamb after his arrest. Mots. Suppress, ECF Nos. 12, 74. On August 22 and 23, 2011 and January 31 and February 1, 2012, the Court heard testimony regarding these motions to suppress. For the reasons that follow, the Court finds the warrant was supported by probable cause, but the machine guns must be suppressed because they were not incorporated in the warrant and were not seized pursuant to the plain view exception.
I. FACTS
Between 12:00 p.m. and 12:30 p.m. on March 21, 2007, officers arrived at the property of Almite Services Inc. ("Almite") in response to the report of a shooting. There had been a dispute between Todd Lamb, who is an employee of Almite, and James Cline, a customer who had consigned a dump truck to Almite. Todd Lamb had fired one shot into the tire of the dump truck and one into the ground near Cline. Upon arrival, police arrested Todd Lamb and removed him from the premises.
Around 2:00 p.m. that afternoon, several officers returned to Almite. These officers searched the desk of Alexis Swearengin, an employee of Almite, and walked through the other rooms. Hr'g Tr. vol. 1, 175, ECF No. 123. They told Swearengin that they were there to secure the premises. Hr'g Tr. vol. 1,175. Jeffrey Cooper, a retired sergeant of the Logan County Sheriff's Office, testified he had sent the officers there to make sure nothing left the premises while a search warrant was being obtained. Hr'g Tr. vol. 1, 179.
Coincidently, Todd Lamb and Almite had been under investigation concerning the sale of stolen vehicles and heavy equipment. At 4:00 p.m. on the afternoon of March 21, 2007, Judge O'Connor of the Logan County Court of Common Pleas issued a search warrant for the business premises of Almite, 1771 CR 130, Bellefontaine, Ohio. The search warrant authorized a search for computers, computer equipment, and records evidencing the purchase, procurement, or sale of equipment and other tangible property. Aff. Search Warrant, PAGEID # 220, ECF No. 53-1. The affidavit in support of the warrant contained the following facts:
4. During the course of my investigation, working with other law enforcement officers, I received information relating to the theft of five pieces of heavy equipment stolen from various places throughout the United States and Italy. These pieces of heavy equipment are as follows:
1 Bobcat stolen from Champaign County
1 Bobcat stolen from St. Charles County Mo.
1 Mini Excavator stolen from Italy through interpol
1 D4G Bulldozer stolen from Carmel, IN
1 430D Whell loader stolen from Twinsburg, OH
5. Further, through my investigation I located the following stolen pieces of heavy equipment at the residence sought to be searched:
1 Bobcat stolen from St. Charles Co., Mo.
6. Further through my investigation, I learned that the said Todd lamb was selling heavy equipment which was stolen on
an eBay sight using his computer. As recently as early March the said Todd Lamb confirmed with law enforcement that he did sell heavy equipment through eBay. Law enforcement was able to determine that a certain piece of equipment sold by him was stolen from Italy and had Product Identification Number 4AZ02883.
7. The located stolen items had one of the product identification numbers altered. The equipment sold on eBay and stolen from Italy was said by Todd Lamb to have a product identification number which had one number different than what was on his eBay store when confronted by law enforcement.
8. This change of Product Identification Numbers is consistent with the D4G Bulldozer and the 430 D Wheel loader which were also sold on his eBay account.
Id. ¶4-8.
The warrant was executed by a team of federal and local officials immediately after its issuance. During the course of the search, officers searched all the offices, the shop attached to the offices, and two other buildings referred to as barns. Sergeant Cooper testified that he asked Todd Lamb if he would open safes in the rooms, and he said yes. Hr'g Tr. vol. 1, 198, ECF No. 123. Inside one of these safes were several machine guns. The officers removed the machine guns and field tested them to see if they were automatic firing guns.
II. DISCUSSION
Defendants Todd and Karen Lamb (collectively, the "Lambs") now challenge the search which took place on March 21, 2007 on several grounds: the warrant contained allegations the affiant knew to be false, the warrant was not based on probable cause, the warrant lacked particularity, the search exceeded the scope of the warrant, and many items seized were not named in the warrant. In addition, Todd Lamb requests the suppression of any statements made by him on March 21, 2007. The Government responds that the Lambs lack standing to challenge the search of the Almite premises and that the warrant and search did not violate the Fourth Amendment rights of either Todd or Karen Lamb. A. Right to Challenge Search
As a threshold matter, the Government disputes the Lambs' standing to challenge the search of Almite's property. Although the Government characterizes its argument in terms of standing, the Supreme Court of the United States has held the principle that Fourth Amendment rights are personal in nature is "more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 U.S. 128, 140 (1978).
A defendant's ability to claim the protection of the Fourth Amendment depends on whether that person had a legitimate expectation of privacy in the area searched. United States v. Ocampo, 402 F. App'x 90, 95 (6th Cir. 2010). A defendant must demonstrate an actual, subjective expectation of privacy and that expectation must be one that society is prepared to recognize as legitimate. Id. "The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." United States v. Richards, 659 F.3d 527, 536 (6th Cir. 2011) (quoting Rakas, 439 U.S. at 130 n.1).
"An owner or operator of a business ... has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." New York v. Burger, 482 U.S. 691, 699 (1988). This expectation is however "different from, and indeed less than, a similar expectation in an individual's home." Id. at 700; see also Savoy v. United States, 604 F.3d 929, 936 (6th Cir. 2010). This reasoning, most often cited in the administrative search context, resonates with the reasoning in Rakas, "[o]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy" by virtue of his or her right to exclude. Rakas, 439 U.S. at 143 n.12.
Todd Lamb was the owner of the Almite property. At the suppression hearing, Richard Hemphill, a title attorney, testified that Todd Lamb had a land contract and a general warranty deed which granted him ownership of 1723 and 1771 County Road 130, the two properties which contain the buildings searched on March 21, 2007. Hr'g Tr. vol. 1, 8-13, ECF No. 123. Todd Lamb maintained all of the keys to the locks on the buildings and knew the combinations to the safes in the offices. Therefore, Todd Lamb had a reasonable expectation of privacy in the Almite premises and in all the areas searched, and may challenge the entire search of the Almite premises.
Karen Lamb did not own the premises, but was the President of Almite. An officer of a corporation may be a person aggrieved by a corporate seizure if the officer had a reasonable expectation of privacy in the seized materials. United States v. Mohney, 949 F.2d 1397,1403 (6th Cir. 1991). Factors to consider in whether the officer had a reasonable expectation of privacy in the items seized include whether the officer was involved in preparing the documents searched, whether the officer used the area searched, and whether the officer was a target of the search. Id.; United States v. Smith, 898 F. Supp. 464, 468 (W.D. Ky. 1995).
Karen Lamb kept personal items in her office and had a role in preparing the items that were kept in her office. The files seized from the office contain Karen Lamb's personal paper work including personal check receipts and hospital records. Hr'g Tr. vol. 1, 53-54, ECF No. 123. In addition, Karen Lamb did all of the bookkeeping, including the billing and payroll. Hr'g Tr. vol. 1, 83. Therefore the evidence supports Karen Lamb's reasonable expectation of privacy in her own office.
There is no evidence, however, to support Karen Lamb's reasonable expectation of privacy in Todd Lamb's office, Swearengin's office, either of the gun rooms, the shop attached to the offices, or the two barns. Nor was there any evidence that Karen Lamb herself was the target of the search. The affidavit and search warrant listed only Todd Lamb as possibly involved in criminal activity. It is the defendant's burden to prove an expectation of privacy, and Karen Lamb has failed to meet that burden for areas outside her office. Richards, 659 F.3d at 536. Accordingly, Karen Lamb may challenge the search of her office, but her Fourth Amendment rights were not implicated by the search of the other areas.
B. Challenges to the Search Warrant
In seeking suppression, the Defendants advance three arguments challenging the affidavit submitted to obtain the search warrant. First, the Defendants argue the affidavit in support of the search warrant contained false statements. Specifically, they assert, inter alia, the affidavit contains false statements which suggest that Todd Lamb was involved in an eBay sale of a Mini Excavator stolen from Italy, the identification number of which had been altered. In addition, the Defendants maintain the inclusion of the Bobcat in the affidavit was misleading because Todd Lamb cooperated with law enforcement in the recovery of that piece of equipment. Second, the Defendants contend that with or without the false statements, the accusations set forth in the affidavit do not support a finding of probable cause to issue a search warrant. In particular, the Defendants argue the affiant consistently failed to identify the source of the information set forth in the affidavit, and they contend the allegations concerning alleged stolen equipment were stale. Third, the Defendants contend the warrant is invalid because it fails to state with particularity the items to be seized.
The Government acknowledges the information concerning the Mini Excavator allegedly stolen from Italy was inaccurate but asserts the Defendants cannot demonstrate the inaccuracy was included with knowledge of its falsity or in reckless disregard for the truth. Moreover, the Government contends the Defendants have failed to show that the disputed information was necessary to a finding of probable cause. Lastly, the Government argues that even if the affidavit does not support a finding of probable cause, the officers executing the warrant were entitled to rely on Judge O'Connor's approval of the warrant under the good faith exception.
1. False Information
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const, amend. IV. To deter violations of Fourth Amendment rights, evidence obtained in violation of the Fourth Amendment is generally excluded at trial. See Davis v. United States, 131 S. Ct. 2419, 2426 (2011).
Under Franks v. Delaware, a court must strike from a warrant affidavit
statements that the defendant can prove by a preponderance of the evidence to be both (a) materially false and (b) made with reckless or intentional disregard for their falsity. If the redacted affidavit, purged of recklessly and materially false statements, no longer establishes probable cause, then the court must hold the resulting search warrant invalid.United States v. Witherspoon, No. 10-6470, 2012 WL 975074, at *5-6 (6th Cir. Mar. 23, 2012) (quoting United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)) (footnote omitted)). A hearing under Franks is required if the defendant makes a substantial preliminary showing that the warrant includes a false statement made knowingly and intentionally, or with reckless disregard for the truth. United States v. Poulsen, 655 F.3d 492, 504-05 (6th Cir. 2011).
Here, the Defendants maintain that the affiant, Sergeant Jeff Cooper, had worked for Almite, was familiar with the business, and was in the position to know the allegations regarding the excavator from Italy were false. The Defendants maintain those facts satisfy their burden of making a preliminary showing that the affidavit contained false statements that were made intentionally or recklessly. Although the Court did not rule that those facts satisfied the Franks preliminary showing requirement, in an abundance of caution it exercised its discretion and conducted a hearing on the motion to suppress on August 22 and 23, 2011, as well as on January 31 and February 1, 2012. The affiant, Sergeant Jeff Cooper of the Logan County Sheriff's Office, testified on the first and second days of the hearing.
Sergeant Cooper acknowledged he worked as a clerk at one Almite auction, although he avers he was working for Mick Lyle, not Todd Lamb. Hr'g Tr. vol. 1, 201-03, ECF No. 123. Regarding the excavator stolen from Italy, the following colloquy took place between Cooper and Todd Lamb's counsel at the hearing:
Q. Now, Todd Lamb never sold a—to your knowledge, a stolen Italian piece of equipment, did he?Hr'g Tr. vol. 1, 201-03. Having observed Sergeant Cooper's demeanor at the hearing, and considering all of the evidence and testimony in the record, the Court finds Sergeant Cooper's testimony on these matters is credible. Sergeant Cooper was not aware the information about the stolen excavator was false when he included it in the affidavit. His involvement as a clerk for a single Almite auction does not suggest Sergeant Cooper's knowledge of the business was such that he was required to reject the information he received from the Ohio State Highway Patrol about the excavator stolen from Italy.
A. To my knowledge now?
Q. Yes.
A. No.
Q. And yet you put in your affidavit, in number 7, that the located items, plural, stolen items, were sold by Todd Lamb through eBay?
A. Through eBay, yes. That was information that was supplied by the investigators from the Highway Patrol. And they'd come to find in their investigation that the serial numbers that that was based on on [sic] the sale by Todd Lamb through eBay, Todd Lamb had put the wrong serial number on the item that he sold in eBay, and that's where they got the hit, through Interpol and through the Highway Patrol. So, at the time of the search warrant, the information that they had was correct as we knew it.
Q. All right. So, they were wrong?
A. No, they weren't wrong. It was wrong on what was, the serial number was, that was placed by Mr. Lamb on the eBay item.
Q. Okay. Now, did you go back and tell the judge that you'd made a big mistake there in your affidavit?
A. No. That was sometime after.
Further, nothing in the record supports a finding that Cooper was reckless when he relied on the information about the excavator provided by the Highway Patrol. The inclusion of the Bobcat in the affidavit merits little discussion. The point was that one of the stolen pieces of equipment that was a subject of the investigation was found in Todd Lamb's possession on the property. The statement was not inaccurate, and whether he cooperated with law enforcement does not dispel the fact that he had a stolen item. Viewed together with the other averments, a reasonable suspicion would arise regardless of his purported cooperation. In sum, the Court finds that Sergeant Cooper did not knowingly, intentionally, or recklessly include false statements in his affidavit. The Court therefore declines to strike those allegations from the affidavit he submitted to obtain the search warrant.
2. Probable Cause
The Court next considers whether Sergeant Cooper's affidavit established probable cause that evidence of a crime would be found at the property. The Defendants advance essentially two arguments pertaining to probable cause. First, they argue the affidavit does not support a finding of probable cause because it consists of conclusory statements without supporting information. Second, the Defendants maintain the information the affidavit contained was stale. The Government asserts the affidavit set forth sufficient information for the judge to find probable cause.
Probable cause is a '"practical, non-technical conception'" as it involves '"factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."' United States v. Sadler, No. 1:10-cr-98, 2012 WL 122571, at *10 (S.D. Ohio Jan. 17, 2012) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).
In determining whether the officer's affidavit establishes 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 before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.Id. (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)). To determine whether an affidavit supports probable cause, the Court must view the affidavit in its totality rather than scrutinize it line-by-line. United States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010). "The affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.'" Id. at 309 (quoting United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000)). A magistrate's finding of probable cause is afforded great deference; nonetheless, that deference is not absolute, as the reviewing court must be satisfied that the magistrate did not serve as a mere "rubber stamp" for law enforcement. United States v. Matsa, No. 2:09-cr-0297, 2012 WL 701393, at *2 (S.D. Ohio Mar. 1, 2012). Hence, the reviewing court will not defer when the affidavit failed to provide the magistrate a substantial basis for concluding probable cause existed. Id.
Fairly summarized, Sergeant Cooper's affidavit contains the following facts. Cooper stated he had thirty years of law enforcement experience and had been trained in the use of special techniques to determine the reliability of information obtained during an investigation. Aff. for Search Warrant, ¶ 1-2, ECF No. 53-1. Cooper indicated he was involved in an investigation of the sale of stolen merchandise from the Almite property. Id. ¶ 3. During the investigation, Cooper and other law enforcement officers identified five pieces of heavy equipment which had been stolen from various places in the United States, as well as one from Italy. Id. ¶ 4. One of those pieces of equipment, a Bobcat stolen from St. Charles, Missouri, was found on the property for which the warrant was sought. Id. ¶ 5. As late as early March 2007, Todd Lamb confirmed to law enforcement that he sold heavy equipment on eBay. Id. ¶ 6. In addition, Todd Lamb sold a specific piece of heavy equipment on eBay that had allegedly been stolen from Italy. Id. The item Todd Lamb sold on eBay had an identification number with one digit different than the number on the item reported stolen from Italy. Id. ¶ 7. The difference between the identification numbers was consistent with changes made to identification numbers on two other pieces of stolen equipment sold on Todd Lamb's eBay account. Id. ¶ 8.
Although perhaps not a model affidavit, the Court finds the above facts provide a substantial basis for a finding of probable cause that evidence of a crime would be found on the property described in the search warrant. The affidavit describes five items of stolen equipment, one of which was found on the property, and three of which were sold on Todd Lamb's eBay account, and that Todd Lamb sold equipment on eBay as part of his ongoing business. It is reasonable to suspect from those facts that there was a fair probability that evidence of other sales of stolen equipment would be found at the property in documents and information stored on computers.
The Defendants' arguments to the contrary fail, as they are based almost entirely on what the affidavit lacked as opposed to the information it actually contained. See Thomas, 605 F.3d at 309. Furthermore, the Court rejects the Defendants' staleness argument because the affidavit describes an ongoing business at a known, permanent location. See United States v. Gardiner, 463 F.3d 445, 472 (6th Cir. 2006); United States v. Abboud, 438 F.3d 554, 573 (6th Cir. 2006) (explaining that evidence of ongoing criminal activity generally defeats a claim of staleness).
In sum, the Court holds that Sergeant Cooper's affidavit adequately provides sufficient information from which Judge O'Connor could reasonably find probable cause to believe there was a fair probability evidence of criminal activity would be found on the property. Accordingly, the Court will not suppress evidence on the basis that the affidavit failed to state facts supporting probable cause to issue the search warrant.
3. Good Faith Exception
Although the above ruling disposes of the Defendants' probable cause challenge, the Court will briefly examine the Government's alternative good faith argument. The Defendants argue the affidavit submitted to obtain the warrant was so lacking in specificity that no reasonable officer could have relied on it in good faith. In addition, the Defendants again assert Sergeant Cooper knowingly included false information in the affidavit.
"[T]he exclusionary rule does not apply when the police conduct a search in 'objectively reasonable reliance' on a warrant later held invalid." Davis, 131 S. Ct. at 2428; (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). "Leon made clear that only in exceptional circumstances is law enforcement to disregard a magistrate judge's authorization." United States v. Evers, 669 F.3d 645, 654 (6th Cir. 2012) (quoting United States v. Richards, 659 F.3d 527, 542 (6th Cir. 2011) (quoting United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (internal quotation marks omitted))). The Sixth Circuit has identified only four circumstances in which the good faith exception does not apply:
(1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a "bare bones" affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer's reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient.United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009). The first exception does not apply because the Court already found that Sergeant Cooper did not knowingly or recklessly include false information in the affidavit. Nothing in the record suggests the magistrate was not neutral and detached, or served as a mere "rubber stamp," so the second exception likewise does not apply. The third exception cannot apply given the Court's finding that the affidavit provides sufficient information to support a finding of probable cause: the officers' reliance on the affidavit could not have been "entirely unreasonable." Lastly, the Defendants do not indicate any facial deficiency in the warrant itself. For these reasons, the Court finds in the alternative that the good faith exception precludes application of the exclusionary rule.
4. Lack of Particularity in the Warrant
The Defendants also argue the warrant is invalid because it fails to meet the Fourth Amendment's particularity requirement. In essence, the Defendants assert their computers, storage media, and documents were not related in any way to the investigation and should therefore not have been ordered seized. In addition, the Defendants suggest a second warrant was required to examine the contents of the computers and storage devices, since officers would otherwise be required to read all of the stored emails and chats, including ones which did not pertain to the sale of heavy equipment.
The warrant in the instant case contains a detailed list of items to be seized. In its simplest terms, it authorized the seizure of computers and electronic media, as well as documents.
The Fourth Amendment requires a warrant to "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const, amend. IV. The particularity requirement protects an individual from "the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84 (1987).
The Court rejects the Defendants' first argument. The investigation concerned the interstate sale of stolen equipment, at least some of which was sold on eBay. It was reasonable, therefore, to believe records of those sales, and others, would be stored on computers and other electronic storage devices. The Defendants' second argument is foreclosed by Sixth Circuit precedent. United States v. Evers, 669 F.3d 645, 651-54 (6th Cir. 2012) (rejecting particularity argument challenging warrant authorizing seizure of computers, cameras, and electronic media suspected of containing child pornography, and specifically rejecting argument a second warrant was required to search contents); see also United States v. Richards, 659 F.3d 527, 536-540 (6th Cir. 2011). The Court concludes the warrant did not violate the Fourth Amendment's particularity requirement. Moreover, even if it did, the good faith exception would preclude suppression of the evidence in these circumstances. Evers, 669 F.3d at 654; Richards, 659 F.3d at 542-43. Accordingly, the Court will not suppress the evidence on the basis of a lack of particularity.
C. Plain View Exception
Lastly, Defendants argue that the automatic guns seized during the search should be suppressed because they were not authorized by the search warrant.Although the search warrant did not cover guns, multiple guns, including the five machine guns that are the subject of the motion to dismiss, were seized during the search. The Government responds that the guns are admissible due to the plain view doctrine.
Defendant also argues the officers exceeded the scope of the warrant due to the duration of the search. Because the Court finds the guns were not seized pursuant to the plain view exception and grants Defendants' motion on that ground, it does not address the duration argument.
The plain view doctrine is an exception to the general prohibition on warrantless searches and seizures. Horton v. California, 496 U.S. 128, 133 (1990). The plain view exception requires: (1) the object be in plain view; (2) the officer be lawfully positioned in a place from which the object can be plainly viewed; (3) the incriminating nature of the object be immediately apparent; and (4) the officer have a lawful right to access the object itself. United States v. Carmack, 426 F. App'x 378, 382 (citing United States v. Garcia, 496 F.3d 495, 508 (6th Cir. 2007)). Defendants do not dispute that the automatic guns were in plain view once the safe was opened. Therefore, the first prong of the plain view analysis is satisfied. The Defendants argue, however, that the "lawfully positioned" and "immediately apparent" prongs of the plain view analysis are not met.
As to the second prong, Defendants argue the officers should not have opened the gun safe as part of the search. Defendants are wrong. The officers were lawfully positioned when they saw the guns, because pursuant to the warrant the officers were looking for documents and computer parts, both of which could reasonably fit in a safe. See United States v. Ross, 456 U.S. 798, 820-21 (1982) (finding warrant authorizes officer to search containers in which the named contraband might be found). Therefore, prong two of the plain view exception is met.
Moreover, Sergeant Cooper testified that Todd Lamb cooperated during the search and agreed to Sergeant Cooper's request to open the safe. Hr'g Tr. vol. 2, 59, ECF No. 124. There was no evidence that Todd Lamb consented to a search beyond the mere opening of the safe, nor does the Government argue that the seizure of the guns was justified by Todd Lamb opening the safe.
The Government has, however, failed the third prong of the plain view analysis because it cannot demonstrate that the illegality of the automatic guns was immediately apparent. "Because the plain view doctrine supplants the need for a particularized warrant, the 'immediately apparent' requirement is necessary to prevent officers from using the plain view doctrine as a means to extend a particularized search authorized by the Fourth Amendment principles into an unlawful exploratory search." Garcia, 496 F.3d at 510.
Under the "immediately apparent" prong, "multiple factors may be taken into account, none of which are necessary, but each of which are instructive." Carmack, 426 F. App'x. at 382. Courts should consider: (1) the nexus between the seized object and the items particularized in the warrant; (2) whether the intrinsic nature or appearance of the object gives probable cause to believe it is associated with criminal activity; (3) whether the officer, at the time of the discovery of the object and with the facts then available, can determine probable cause of the object's incriminating nature; and; (4) whether the officer can recognize the incriminating nature of the object as the result of his instantaneous sensory perception, as opposed to further investigation. Id.; Garcia, 496 F.3d at 510. "Probable cause does not require knowledge that the evidence is contraband." Carmack, 426 F. App'x at 382. Instead, it requires that the available facts would warrant a man of reasonable caution in the belief that it may be contraband. Id.
Here, the first factor weighs in favor of suppression. There was no nexus between the guns seized and the documents or computer accessories authorized in the warrant. Nothing in the warrant or the affidavit suggests guns were used in the alleged theft. To the extent the officers were aware of the shooting that occurred on the property earlier that morning, they were likely also aware the shooting involved a handgun, not an automatic machine gun. Furthermore, there was no testimony that the guns were seized in connection with the earlier shooting; they were seized because they were found to be automatic.
Some district courts in the Sixth Circuit have found the incriminating nature of a machine gun was immediately apparent for purposes of the plain view exception where the gun had a connection to the alleged crime. See United States v. Jefferson, 717 F. Supp. 2d 790, 804 (S.D. Ohio 2010) (finding incriminating nature of AK-47 immediately apparent where police were investigating a homicide involving a firearm); United States v. Case, No. 2:07-CR-111, 2008 WL 4865967, at *9 (E.D. Tenn. 2008) (finding that if the plain view exception were applied, the incriminating nature of a machine gun is immediately apparent where there was a nexus between guns and narcotics crimes). Here, there was no nexus between the alleged crime and the guns in this case, and therefore, within the context of the search, the illegal nature of the guns was not immediately apparent.
Under the second factor, neither the intrinsic nature nor the appearance of the guns gave probable cause to believe they were illegal automatic weapons. The United States Court of Appeals for the Sixth Circuit has held the incriminating nature of certain weapons and accessories, such as sawed-off shotguns and silencers, is immediately apparent. See, e.g., Carmack, 426 F. App'x at 383 (citing cases establishing the immediately apparent incriminating nature of sawed-off shotguns); United States v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990), abrogated on other grounds by United States v. Horton, 496 U.S. 128 (1990) ("[S]ilencers, like sawed-off shotguns, are not 'intrinsically innocent' objects and their possession is a serious crime except under 'extraordinary circumstances.'").
There is, however, a distinction between silencers and sawed-off shotguns on the one hand, and automatic weapons on the other. The Sixth Circuit has held that the incriminating nature of automatic weapons is not immediately apparent. United States v. Tatman, 397 F. App'x. 152, 175-77 (6th Cir. 2010) (finding incriminating nature of automatic weapons parts kit not immediately apparent); United States v. Szymkowiak, 727 F.2d 95, 99 (6th Cir. 1984) (suppressing assault rifle where the officers could not tell by looking at the rifle whether it was automatic); United States v. Gray, 484 F.2d 352, 355 (6th Cir. 1973) (finding stolen rifles did not fall under the plain view exception). Therefore, the illegality of an automatic gun is not immediately apparent, and factor two also weighs in favor of suppression.
With respect to the third factor, the seizing officers could not determine the incriminating nature based upon the facts then available. Sergeant Cooper asked Todd Lamb to open the gun safe. Hr'g Tr. vol. 1, 197, ECF No. 123. The safe contained several guns, five of which turned out to be automatic weapons. Hr'g Tr. vol. 2, 59, ECF No. 124. Sergeant Cooper testified, however, that he had no expertise that would help him determine upon first sight whether the guns were fully automatic or legal. Hr'g Tr. vol. 1, 198, 210, ECF No. 123.
The Bureau of Alcohol, Tobacco and Firearms ("ATF") was then called to examine the guns. ATF Special Agents Funke ("Funke") and Howard ("Howard") arrived. Funke testified that upon her arrival, the five machine guns at issue were still in the safe. Hr'g Tr. vol. 4, 109. Funke stated not all machine guns are illegal; in fact, fully automatic weapons manufactured before a specific date may legally be possessed by civilians. Hr'g Tr. vol 4,119. Funke described several ways in which a gun can be identified as manufactured after 1986 and therefore illegally possessed by civilians—a stamp of the manufacturing date, a stamp with words "machine gun" in yellow, a mark indicating "military use only," or the fact that a gun has three firing settings instead of two. Hr'g Tr. vol 4,110-11, 133. Funke testified that she could not discern any of those indicators merely by looking at the guns in the safe. Hr'g Tr. vol. 4, 116, 136. Defense counsel specifically asked, "could you tell... at a glance that any of these five guns were fully automatic?" and Special Agent Funke answered, "[a]t a glance, no." Hr'g Tr. vol. 4, 118-19.
The guns at issue were not stamped with a manufacturing date, but one was stamped "machine gun" in yellow, which indicates it was manufactured after the relevant date. Hr'g Tr. vol. 4, 110. Also, several of the guns had a stamp indicating military use only or law enforcement use only. Hr'g Tr. vol. 4, 111.
--------
Special Agent Funke and Special Agent Howard nonetheless proceeded to conduct a field test of the guns. Based on the way some of the guns functioned during the field test, several of the guns were sent to the lab for further testing to determine conclusively if the guns were fully automatic.
Because neither Sergeant Cooper nor the ATF agents could tell by looking at the guns while in the safe that the guns were fully automatic (or even likely to be so), the facts available did not support a finding of probable cause regarding the guns' incriminating nature. Probable cause did not exist until after Special Agents Funke and Howard conducted field tests of the guns. It is well-settled that where "an item appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity, the item is not immediately incriminating." United States v. Tatman, 397 F. App'x 152, 175 (6th Cir. 2010) (internal quotation omitted); see also Arizona v. Hicks, 480 U.S. 321 (1987) (finding the plain view exception did not excuse the seizure of a stereo where the incriminating nature was not obvious until an officer picked up the stereo, looked at the serial number on the bottom of the same, and phoned the number in to a database to determine if it was stolen); Garcia, 296 F.3d at 511 (suppressing documents because incriminating nature apparent only after reading and further investigation). Thus, the third factor also supports suppression.
With respect to the fourth factor, the incriminating nature of the guns was certainly not based on the officers' instantaneous sensory perception. To the contrary, a field test was required to even give the officers probable cause to send the guns to the lab for definitive testing. This factor also warrants suppression.
In conclusion, all four factors of the "immediately apparent" prong of the plain view analysis weigh in favor of suppression. In addition, United States v. Szymkowiak is indistinguishable from this case. 727 F.2d at 96. In Szymkowiak, officers had a search warrant for jewelry and a T.V. set. Id. at 96, 99. An officer came across a gun and could not determine if the gun was automatic and therefore illegal. Id. An ATF agent was called. Id. When the ATF agent arrived, he stated he did not believe the weapon was illegal under federal law, but was "probably in violation of Ohio state law," although he could not be sure from the exterior of the weapon. Id. The ATF agent could not determine whether the gun had been illegally adapted without disassembling the gun, but he recommended the gun be seized. Id. The Sixth Circuit suppressed the gun because the criminality of the gun was not immediately apparent to the seizing officers. Id. at 99.
Likewise, in the case sub judice, Sergeant Cooper did not have probable cause to believe that the guns were illegal, and one of the other officers therefore called ATF. The ATF agents did not have probable cause to believe that the guns were illegal until after they removed the guns from the safe and conducted a field test. As the court held in Szymkowiak, "[w]hen an expert in the firearms field is unable to associate discovered evidence with criminal activity without actually disassembling the evidence, [a court] can hardly say that probable cause would be 'apparent' to an officer of 'reasonable' caution from the evidence itself." 727 F.3d at 99.
As the incriminating nature of the guns was not immediately apparent, the plain view exception does not apply in this case. The Government has argued no other exceptions to the warrant requirement. Accordingly, the Court GRANTS Defendants' motion to suppress the guns.
D. Statements Made by Todd Lamb
Todd Lamb also moves to suppress any incriminating statements he may have made on March 21, 2007 during the search of the Almite premises. However, he fails to identify with specificity which statements he seeks to suppress. The Court therefore denies Defendants' motion without prejudice to renewal.
IT IS SO ORDERED.
________________________
MICHAEL H. WATSON , JUDGE
UNITED STATES DISTRICT COURT