Opinion
Case No. 2:03CR666 DAK
December 29, 2003
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
This matter is before the court on Defendant Maury Jay Anderson's Motion to Suppress. Specifically; Defendant seeks to suppress evidence seized from his residence on June 17, 2003.
A hearing on the motion was held on November 18, 2003. At the hearing, Defendant was represented by Ronald J. Yengich, and the United States of America was represented by Lana Taylor, At the hearing, both parties requested leave to submit supplemental briefs, which were filed on December 1, 2003. Before the hearing, the court carefully considered all pleadings, memoranda, and other materials submitted by the parties. Since taking the matter under advisement, the court has considered the supplemental briefs and has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Findings of Fact and Conclusions of Law and Order.
FINDINGS OF FACT
Detective Tyler Boelter of the Salt Lake City Police Department ("Detective Boelter") began investigating the Defendant for suspected methamphetamine production in March of 2003. Detective Boelter had received information from Sergeant K. Worlton of the DEA Metro Narcotic Task Force ("Sgt. Worlton") that the Defendant was occupying a residence at 10424 So. 2200 West, Sandy, Utah (the "Residence") and was engaging in an ongoing methamphetamine manufacturing operation therein. Detective Boelter decided to independently investigate the information provided by Sgt. Worlton. The Residence is located within 1000 feet of Bingham High School.Detective Boelter checked iodine purchase records from local merchants. He found that Defendant purchased two ounces of crystallized iodine on January 31, 2003 from the Hi-Valley Chemical Shop, and then on February 21, 2003, Defendant purchased another two ounces of crystallized iodine from Murray Ball Feed, a livestock supply store. Defendant listed the reason for the purchase of the iodine as horses. However, Detective Boelter spoke with two reputable veterinarians, both of whom indicated that the use of four ounces of crystallized iodine in a two-month period was excessive for medical purposes, and extremely excessive for non-medical purposes. Crystallized iodine is the main ingredient in methamphetamine. Based on these discoveries, Detective Boelter decided to investigate further.
Within seven days of submitting his Affidavit for Search Warrant (the "Affidavit"), Detective Boelter conducted a "trash cover" on the Residence. The trash cover revealed residency documents showing Defendant listed at the Residence and the following items: plastic tubing, rubber gloves, coffee filters with iodine stains, syringes, pH papers, matchbooks without striker plates, empty acetone and paint thinner containers, five empty rubbing alcohol containers, an empty container of sodium hydroxide, and two empty milk jugs stained red. All of these items are components of a clandestine methamphetamine lab. Detective Boelter also recovered 19 bottles of 2% iodine tincture and six empty bottles of hydrogen peroxide. The mixture of iodine tincture and hydrogen peroxide produces crystallized iodine, the main ingredient for methamphetamine.
Later, Detective Boelter checked state and local records and found that the Defendant had been previously arrested on several occasions for violent and drug-related offenses. Specifically, Defendant was arrested in December of 1991 for domestic assault, and then again in September of 2001 for the same offense, In addition, Defendant was arrested in March of 2002 for driving under the influence of drugs and again in August of 2002 for possession of methamphetamine and possession of a clandestine methamphetamine laboratory where Detective Boelter dealt with Defendant.
Finally, within seventy-two hours of submitting his Affidavit for Search Warrant, Detective Boelter conducted direct surveillance of the Residence. Detective Boelter's surveillance of the Residence revealed a "white and gray" travel-trailer located next to the residence, powered by cords that ran from the residence to the trailer. He also stated in the Affidavit that, based on his training of experience that individual involved in the manufacturing of methamphetamine often store chemicals and components in travel trailers and outbuildings and that individuals involved in the manufacturing of methamphetamine often produce the methamphetamine in outbuildings and travel trailers. Detective Boelter also observed what he believed to be a counter-surveillance camera installed at the front door of the residence. Detective Boelter also observed that it appeared that the occupants of the residence were manufacturing the methamphetamine at night.
The Affidavit specifically requested a no-knock search warrant allowing a nighttime search be granted because requiring officers to provide notice would likely result in physical harm to any person, and/or the quick destruction, disposal, or secreting of the property sought. The Affidavit specifically enumerated the following reasons for justifying the no-knock/nighttime provision of the warrant: (1) the Defendant was very confrontational with officers when he was arrested for possession of a methamphetamine laboratory in August of 2002; (2) methamphetamine abusers are typically unpredictable, paranoid and potentially violent; (3) as the residence is located within 1000 feet of Bingham High School, many students and area residents walk in close proximity to the Residence during daylight hours, therefore service of the warrant during daylight hours would pose an undue safety risk to bystanders; and (4) individuals involved in the distribution and manufacturing of methamphetamine often install counter-surveillance equipment, like the camera observed at the Residence's front door, to observe approaching individuals. If notice were required, Officers would likely be observed prematurely, allowing Defendant and others to destroy or conceal the property and equipment sought.
Judge Bohling granted a no-knock search warrant (the "Warrant"), which was subsequently executed at approximately 1:00 a.m. on June 17, 2003. The search yielded extensive proof that methamphetamine was being manufactured at the Residence. Specifically, law enforcement discovered a complete clandestine methamphetamine laboratory, as well as iodine and finished methamphetamine.
CONCLUSIONS OF LAW
"[Affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108 (1965). "[W]here [the underlying] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." Id. at 109.
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, 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, And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . concluding]" that probable cause existed.Illinois v. Gates, 462 U.S. 213, 238 (1983) (additional citations omitted). Moreover, "a magistrate judge's decision to issue a warrant is entitled to great deference from the reviewing court." United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001) (internal quotation marks omitted), cert. denied, 534 U.S. 886 (2001). "Accordingly, [a reviewing court] need only ask whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a substantial basis for determining that probable cause existed." Id. (internal quotation marks omitted). Probable cause exists when the affidavit "sets forth facts that would lead a prudent person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001), cert. denied, 535 U.S. 945 (2002). 1. FACTS SUPPORTING THE SEARCH WARRANT WERE NOT STALE AND SUFFICIENTLY ESTABLISHED PROBABLE CAUSE.
"Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched." United States v. Snow, 919 F.2d 1458, 1459-60 (10th Cir. 1990). "To determine whether information is stale, we look not only at the element of time, but also at the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." Id.; see also Basham, 268 F.3d 1199 (10th Cir. 2001). Moreover, "where the affidavit recites facts indicating ongoing, continuous criminal activity, the passage of time becomes less critical." United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986). Here, the information was not stale because the criminal activity was ongoing in nature, and much of the information provided in the Affidavit was obtained shortly before the warrant issued.
The information provided in the Affidavit recited a multitude of fresh facts that indicated ongoing, continuous methamphetamine production by the Defendant from within the Residence. Additionally, the Affidavit detailed the ongoing investigation of the Defendant and the Residence, which substantiated the information. From the outset, the Affidavit explains that the information provided therein is a summary of ongoing criminal activity detected by means of an ongoing investigation, which spanned from August 2002, until June 2003.
Initially, in August of 2002, Detective Boelter dealt with Defendant when he was arrested for possession of methamphetamine and a clandestine methamphetamine laboratory. During the arrest, Detective Boelter specifically recalled Defendant's combative and confrontational nature. While continuing to investigate Defendant's drug activity, Detective Boelter later checked crystallized iodine purchase records from the Hi-Valley Chemical Shop and Murray Ball Feed and discovered Defendant had purchased two ounces of crystallized iodine January 2003, and another two ounces again in February of 2003. Knowing that crystallized iodine was the chief ingredient in producing methamphetamine, Detective Boelter astutely decided to investigate the Defendant further.
Within seven days of submitting his Affidavit, Detective Boelter conducted a "trash cover," which revealed residency documents showing Defendant listed at the Residence, and the following: plastic tubing, rubber gloves, coffee filters with iodine stains, syringes, pH papers, matchbooks without striker plates, empty acetone and paint thinner containers, five empty rubbing alcohol containers, an empty container of sodium hydroxide, and two empty milk jugs stained red. All of these items are components of a clandestine methamphetamine lab, Detective Boelter also recovered 19 bottles of 2% iodine tincture, and six empty bottles of hydrogen peroxide, the mixture of which produces crystallized iodine.
Defendant alleges the "trash cover" was deficient because it involved a multi-family trash receptacle, "and the receptacle was located in the front of the residence where other people have access to it." Defendant's argument is without merit, as the Residence is a single-family dwelling owned by Defendant's brother, and occupied by Defendant. Accordingly, United States v. Robinson, 336 F.3d 1293, 11th Cir. 2003) (invalidating probable cause determination on stale information and a trash pull conducted from a multi-family trash receptacle) does not apply. Significantly, the Officers found Defendant's personal mail, listing his address as the Residence in the same trash that contained the incriminating indicia of his methamphetamine laboratory and efforts to produce methamphetamine, No other residency papers were located in search of the trash. When evidence from the "trash cover" is read in a "common-sense" fashion with the balance of information provided in the affidavit, the totality of the evidence is more than sufficient to warrant the probable cause determination made by Judge Bohling. Because evidence recovered from the trash cover was fresh, and provided a strong indication that ongoing drug activity was occurring at the Residence, it was properly relied upon to determine probable cause and Defendant's argument fails.
Thus, considering the totality of the circumstances, the information provided in the Affidavit was sufficiently fresh to merit consideration in reaching a probable cause determination. Specifically, the information provided information of ongoing criminal activity in the form of evidence of ongoing methamphetamine production by Defendant from within his Residence by means of a clandestine methamphetamine laboratory. The information consisted of Defendant's past chemical purchases, possession charges, the evidence yielded from the "trash cover," and Detective Boelter's observation of the Residence. This information was provided in the Affidavit as a summary of an ongoing investigation, which spanned several months and was conducted to within seventy-two hours prior to the Warrant's issuance. Because the information in the Affidavit was not stale, was sufficient to justify a probable cause determination, and in light of the fact that this Court must review the magistrate's decision with great deference, Defendant's argument fails and the probable cause determination must stand.
II. THE SEARCH WARRANT DESCRIBED ITEMS AND PLACES TO BE SEARCHED WITH REQUISITE PARTICULARITY AND THUS WAS NOT OVERBROAD.
"In general, a warrant is sufficiently specific if it `enables the searcher to reasonably ascertain and identify the things authorized to be seized." Snow, 21 F.3d at 1033 (quoting United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982)) (additional citation omitted). "However, even a warrant that describes items to be seized in broad and generic terms may be valid if the description is a specific as circumstances and nature of the activity under investigation permit." Id. (citing United States v. Harris, 903 F.2d 770 (10th Cir. 1990). "The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985). Here, the Warrant issued complied with Fourth Amendment strictures regarding specificity.
The Warrant was issued on Judge Bohling's probable cause determination that methamphetamine and materials related to the production and distribution thereof would be located at the Residence and on the person of the Defendant. Accordingly, officers executing the Warrant were authorized to seize any methamphetamine, drug paraphernalia, articles of personal property tending to establish and document sales of the controlled substance, and articles tending to establish the identity of persons in control of the premises. In the case at hand, the warrant clearly identified the location of the search and limited officers' authorization to seize property to that which related to the crime of methamphetamine production and distribution. Accordingly, the Warrant met the Voss standard as the search was confined in scope to particularly described evidence relating to a specific crime for which there was demonstrated probable cause. The Warrant specified and explained examples of property to be seized including the following: 1) methamphetamine, in its various forms; 2) production equipment and paraphernalia including plastic bags, scales, measuring devices, drug paraphernalia including syringes, pipes, and tubes; 3) articles of personal property to establish and document sales like U.S. currency, or buyer/seller lists; and 4) articles tending to establish identity of persons in control of the premises including rent and utility receipts, and addressed envelopes. All of the above property is related to the criminal activity being investigated and was rightfully within the scope of the search. Moreover, as no officers or informants had previously been in the Residence, the government had insufficient information to further detail the search parameters within the home. Thus, the Warrant did not allow an open-ended search like Voss, and could not have been any more specific under the circumstances. Because the search was confined in scope to particularly described evidence relating to a specific crime for which there was demonstrated probable cause, the Warrant was not overbroad and Defendant's argument fails.
III. THE NO-KNOCK PROVISION OF THE SEARCH WARRANT WAS FACTUALLY SUPPORTED AND PROPER UNDER THE CIRCUMSTANCES.
Section 879 of Title 21 of the United States Code provides that a search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or the United States magistrate judge issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. Here, the Warrant listed several grounds that justified the no-knock provision.
First, the Affidavit attested to the fact that were notice provided, the methamphetamine and associated laboratory equipment could be quickly destroyed or hidden. The United States Supreme Court has held that no-knock searches may be justified when it is demonstrated that evidence might be destroyed if advanced notice was given. Wilson v. Arkansas, 514 U.S. 927 (1995). Moreover, an articulated concern that the target of a search might be alerted in advance to the presence of officers so as to threaten destruction of evidence is an exigent circumstance justifying no-knock procedure. United States v. Dickerson, 195 F.3d 1183, 1186-87 (10th Cir. 1999). In the Affidavit, Detective Boelter testified to the presence of a counter-surveillance camera at the Residence. He further attested that the drugs and associated paraphernalia located at the Residence could be quickly destroyed, and that the drug producers typically employed surveillance equipment to alert them to the presence of law enforcement so they can destroy or hide evidence of drug production. The Warrant recited these concerns in justifying the no-knock provision. Accordingly, the no-knock provision of the Warrant was justified as the Warrant demonstrated that drug evidence would likely be destroyed were notice provided.
See also United States v. Watson, 61 Fed. Appx. 514, 2003 WL 254311 (10th Cir. Feb. 5, 2003), (where the Court upheld a no-knock warrant where law enforcement had previously observed a surveillance system, and alleged evidence could quickly be destroyed in the event that officers were detected before entry into the home).
Second, the Warrant justified the no-knock provision by stating, "harm may result to any person if notice were given." In United States v. Tucker, 313 F.3d 1259 (10th Cir. 2002), the Defendant challenged the no-knock and nighttime provisions of the search warrant. Id. at 1261-1263. The 10th Circuit Court upheld both provisions relying on the District Court's finding that "such activity [producing methamphetamine] would endanger other nearby residents due to the danger of methamphetamine processing." Id. at 1265. Specifically, the 10th Circuit Court found the District Court's findings "provide[d] the necessary justification for the nighttime search." Id. Here, the methamphetamine lab was located in Defendant's Residence, which was within hundreds of feet of other houses and within 1000 feet of Bingham High School. Given the volatile nature of the chemicals involved in methamphetamine processing and production, service of the Warrant during the day or with notice would have posed an excessive risk to the public. Compounding this, and further weighing in favor of the no-knock Warrant is the Defendant's confrontational past with law enforcement. Although the Affidavit did not go into detail concerning Defendant's last arrest for possession of a clandestine methamphetamine laboratory, it did indicate Defendant was very confrontational with law enforcement, This alone is another sufficient articulable reason for justifying the no-knock provision.
In conclusion, the Warrant articulated sufficient reasons for justifying the no-knock provision, and thus was not unreasonable. The Warrant indicated adequate proof had been proffered as to how the evidence could be quickly destroyed or disposed of, and that harm may result to any person should notice be given.
IV. IN ANY EVENT, THE OFFICERS RELIED ON THE SEARCH WARRANT IN GOOD FAITH AND THEREFORE THE EVIDENCE SHOULD NOT BE SUPPRESSED.
In United States v. Leon, the United States Supreme Court stated that where an officer, acting in objective good faith, has obtained a search warrant from a judge or magistrate that is ultimately found to be unsupported by probable cause, any evidence obtained from the resultant search or seizure may be admitted as evidence in the prosecution's case in chief, despite the fact that it is illegally obtained. 468 U.S. 897, 913 (1984), The Court held the evidence should not be suppressed because the magistrate made the error, not the officer who reasonably relied on the magistrate's action. Id. 468 U.S. at 916-17, The exclusionary rule is considered to have deterrent effect on the conduct of police officers, but is not considered to have a deterrent effect on the activity of magistrates, who are judicial officers. Id.
Here, officers relied on the magistrate's issuance of the warrant to search the listed Residence. There is no evidence that the officers acted in bad faith in obtaining information or in securing the search warrant. Further, even if there were no probable cause to support the issuance of the Search Warrant, the Affidavit was no so lacking in indicia of probable cause so as to render official belief in its existence unreasonable. Thus, suppression of the evidence is not warranted.
CONCLUSION
Based on the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion to Suppress is DENIED.