Opinion
Case No. 01-40062-01-RDR
November 30, 2001
MEMORANDUM AND ORDER
On November 2, 2001, the court held a hearing on the pretrial motions by the defendant. Having carefully reviewed the evidence presented and arguments made by the parties, the court is now prepared to rule.
The defendant is charged in a two-count indictment. He is charged with attempting to manufacture more than 50 grams of methamphetamine [Count 1] and possessing a listed chemical, ephedrine and pseudoephedrine, with intent to manufacture methamphetamine [Count 2]. The charges arise from the search of a trailer where the defendant was residing in Manhattan, Kansas.
The defendant has filed the following pretrial motions: (1) motion to disclose expert testimony; (2) motion to exclude expert testimony; (3) motion to disclose confidential informants; and (4) motion to suppress evidence obtained from search of residence. The defendant has also filed a notice of demand.
MOTION TO DISCLOSE EXPERT TESTIMONY
The defendant seeks an order requiring the government to disclose whether it intends to rely upon expert testimony at trial and, if so, to identify and disclose the content and bases of any such testimony as required by Fed.R.Crim.P. 16(a)(1)(E).
The government has responded that it does intend to rely on expert testimony at trial and that it will identify the content and bases of such testimony in a timely and reasonable manner in advance of trial.
The court recognizes that the government has agreed to provide this information. The court directs the government to provide this information to the defendant at least 20 days prior to trial.
NOTICE OF DEMAND
The defendant requests that he be given notice of any evidence that the government intends to use pursuant to Fed.R.Evid. 404(b), 609 or 807 at trial. The government does not oppose this demand. The government has indicated that it will provide such information reasonably in advance of trial. With the government's response, the court finds it unnecessary take any action on the defendant's notice of demand.
MOTION TO EXCLUDE EXPERT TESTIMONY
The defendant asks the court to exclude any expert opinion testimony regarding the theoretical production capability of the alleged methamphetamine lab. The defendant contends that any expert testimony concerning the potential production capability of methamphetamine based upon lithium batteries should be excluded under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) and Fed.R.Evid. 702. The defendant requests that the court conduct a pretrial hearing to determine the admissibility of this evidence.
The government contends that a pretrial hearing is not necessary. The government suggests that the evidence is both relevant and reliable.
The court is quite familiar with this issue. We have heard considerable testimony on it during the trial of United States v. Bruce Evans, Case No. 00-40082-01-RDR. In fact, the defendant relies upon testimony from the Evans trial for support of his argument here. Given our familiarity with the issue, the court sees no need for a pretrial hearing. The court believes that the arguments noted by the defendant go to weight of the evidence, not its admissibility. The evidence in Evans demonstrated the relevance and reliability of this evidence. Accordingly, the court shall deny both the motion for a hearing and to exclude this expert testimony.
MOTION TO DISCLOSE CONFIDENTIAL INFORMANTS
The defendant seeks to compel the government to disclose the identity of the informants who are unnamed in the affidavit in support of the search warrant. He suggests that the identity of the informants would bolster his defense at trial, i.e., that the informants along with Barker are culpable.
The government asserts that disclosure is not required here because (1) the informants were mere tipsters; (2) the defendant has not shown that the testimony of the informants is relevant or essential; and (3) public policy dictates non-disclosure.
The Tenth Circuit has provided the following guidelines for the disclosure of confidential informants:
A defendant seeking to force disclosure of an informant's identity has the burden to show the informant's testimony is relevant or essential to the fair determination of defendant's case. In determining whether to require disclosure, a court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense. The court conducts this balancing in light of the crime charged, the possible defenses, and the significance of the informant's testimony. Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret [the informant's] identity must prevail over the defendant's asserted right of disclosure.
United States v. Gordon, 173 F.3d 761, 767 (10th Cir. 1999) (citing Roviaro v. United States, 353 U.S. 53, 62 (1957) and United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997)) (internal quotation marks omitted); see also United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995) (stating that the testimony of a confidential informant "must be shown to be valuable to a defendant; mere speculation is not enough").
The court fails to see the need to disclose the identity of the informants here. The information before the court suggests that the informants were mere tipsters. The charges here arise from the search of the trailer where the defendant was a resident. No charges have been made from any activities where the informants were involved. The court believes that the defendant's request for disclosure of the confidential informants because they may have been involved with Barker in the production of methamphetamine is sheer speculation. The defendant has offered nothing in support of this contention. Accordingly, the court shall deny this motion.
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM SEARCH OF RESIDENCE
The defendant seeks to suppress the evidence seized pursuant to a search warrant at the trailer where he lived in Manhattan, Kansas. The defendant raises several arguments in support of suppression. Having carefully reviewed the evidence at the hearing, the court is now prepared to issue the following findings of fact and conclusions of law.
During the course of the hearing on the motion to suppress, defense counsel presented two versions of the affidavit that was used to obtain the search warrant of the defendant's residence. The court has concluded that the document identified as Exhibit No. 404 was a fabrication. The circumstances surrounding the attainment of this document are highly suspect. The court makes this comment only to inform the parties that it did not consider Exhibit No. 404 in reaching its findings of fact and conclusions of law.
FINDINGS OF FACT
1. Larry Dixon, a special agent with the Kansas Bureau of Investigation(KBI), received information from a confidential informant on April 5, 2001 that Patrick Freel was about to conduct a methamphetamine cook. Agent Dixon has been with the KBI for approximately sixteen years and has developed considerable expertise in the area of methamphetamine production.2. The confidential informant told Agent Dixon that Freel lived in a trailer court in Manhattan, Kansas and that he drove a late model, four-door dark blue Cadillac. Agent Dixon subsequently learned that there were two outstanding felony arrest warrants on Freel.
3. On April 9, 2001, Agent Dixon went to the trailer court where Freel resided. He noticed that a dark blue Cadillac was parked near Freel's trailer. Agent Dixon then made contact with the Riley County Police Department to determine if anyone there could assist him in serving the arrest warrants. Agent Dixon eventually met with Sergeant Richard Fink of the Riley County Police Department. Sergeant Fink agreed to help Agent Dixon serve the warrants.
4. Agent Dixon and Sergeant Fink went to the trailer where Freel resided. Delbert Barker answered the door. Agent Dixon told Barker that they were looking for Freel. Barker told them that Freel was not there. Agent Dixon told Barker that he had an arrest warrant; that he believed Freel was at the trailer; and that he would arrest Barker for obstruction of justice if he found Freel at the trailer. Barker then said that Freel was at the trailer. He told Agent Dixon that Freel was in the back bedroom.
5. Agent Dixon and Sergeant Fink proceeded to the back bedroom in the trailer. Agent Dixon knocked on the closed door. There was no answer. Agent Dixon opened the door and saw Freel behind the door. Agent Dixon also observed a female in the room. She was later identified as Pamela Ray. Freel was arrested. While in the room, Agent Dixon noticed a device used for smoking marijuana. He also smelled a faint odor of ether. Finally, he saw a makeshift cardboard hood built over the bedroom window. Sergeant Fink also noticed a smell of ether in the room and the marijuana smoking device. In addition, he noticed a tray below the makeshift cardboard hood that appeared to have chemical burns on it. Agent Dixon believed that the odor of ether and the makeshift cardboard hood suggested that methamphetamine had been manufactured in that bedroom of the trailer.
6. Following the arrest of Freel, Agent Dixon talked with Barker. Agent Dixon asked Barker if he could search the trailer. Barker had told Agent Dixon he owned the trailer. Agent Dixon made his request in a normal conversational tone. He made no effort to threaten or coerce Barker. He did tell Barker that he would not arrest him if he cooperated. Agent Dixon believed that Barker was "pretty normal" when he made his request for consent to search. He determined that Barker was not agitated or aggressive. Barker agreed to a search of the entire trailer. He signed a handwritten consent form.
7. Following the consent to search, Agent Dixon and Sergeant Fink began looking around the trailer. They saw several items associated with the manufacture of methamphetamine. Based upon their observations of the contents of the trailer, they became unsure whether Barker had complete control over the entire trailer. They decided to obtain a search warrant to continue their search. Sergeant Fink left the trailer and went to the Riley County Police Department to prepare a search warrant affidavit.
8. Prior to preparing the affidavit, Sergeant Fink talked with Detective French of the Riley County Police Department. Detective French told Sergeant Fink that he had been investigating Freel. He further told him that Detective Hanus of the Salina County Sheriff's Department had videotapes of Freel purchasing ephedrine and pseudoephedrine from the Target store in Salina, Kansas. Sergeant Fink had previously worked as a partner with Detective French. They had worked together for over one and a half years. They had executed between 75 and 100 search warrants. Sergeant Fink considered Detective French a reliable source of information.
9. Using information supplied by Detective French along with facts that he gathered during Freel's arrest, Sergeant Fink prepared an affidavit in support of a search warrant that contained, inter alia, the following:
9. Detective Hanus of the Salina Police Department has been conducting surveillance on two subjects purchasing large quantities of ephedrine based Sudafed cold medicine. Ephedrine is the main ingredient needed to manufacture methamphetamine. On March 3rd, 2001 Hanus videotaped a white male enter into the Target store located in Salina, Kansas, while in the store the subject purchased seven boxes of Sudafed. The subject then exited the store and got into a dark blue Cadillac. The vehicle was bearing a Kansas license plate # PAD-287. It was determined the vehicle was registered to Patrick Freel of Manhattan. Hanus contacted Sergeant French of the Riley County Police Department and inquired about Patrick Freel. Sergeant French provided Hanus with a mug shot of Patrick Freel. The subject purchasing the Sudafed matched the mug shot of Patrick Freel.
10. On March 31st, 2001 Detective Hanus again videotaped Patrick Freel purchase eight boxes of Sudafed cold medicine from the Target store. On this date there was a second white male with Freel. Hanus described the male as a white male, tall, slim build, with dark hair, a mustache and a long pony tail.
11. Police records revealed that Patrick Freel lives at 613 Riley Lane, lot #5, Manhattan, Riley County, Kansas. On April 9th, 2001 Sergeant French conducted surveillance on the residence and noted that a dark blue 4-door Cadillac was parked in front of the trailer house.
12. On April 9th, 2001 Agent Dixon of the KBI contacted the Riley County Police Department and requested the assistance of a Detective. The affiant met with Agent Dixon. Agent Dixon told the affiant that he had obtained a confidential informant who provided him with information about Patrick Freel. Agent Dixon related that Patrick Freel had outstanding warrants for his arrest and was currently inside the residence located at 613 Riley Lane, lot #5, Manhattan, Riley County, Kansas. Agent Dixon told the affiant that Patrick Freel is a methamphetamine cook and he had information that he may be manufacturing methamphetamine in or around the residence.
13. Agent Dixon asked the affiant to assist him as he attempted to locate and arrest Patrick Freel at the residence. On April 9th, 2001 Agent Dixon and the affiant went to 613 Riley Lane, lot #5, Manhattan, Riley County, Kansas. The affiant knocked on the door of the residence. Delbert Barker opened the door. The affiant noted that Delbert Barker is a white male with a tall slender build, with dark hair, a mustache, and shoulder length hair. The affiant identified himself and Agent Dixon to Barker. Agent Dixon advised Barker that we were looking for Patrick Freel. Delbert Barker reluctantly allowed us in the residence then advised us that Patrick Freel was in one of the two back bedrooms. Agent Dixon and the affiant walked to the back of the residence, as the affiant passed by the first bedroom he noticed a video surveillance monitor which was fixed on the front of the residence. Agent Dixon knocked on the closed back bedroom door. A female opened the door and Agent Dixon saw Patrick Freel standing behind the door. Patrick Freel was placed under arrest for the warrants and removed from the residence. While removing Freel the affiant detected the odor of ether inside the room occupied by Freel and the female. The affiant also observed a hand-made exhaust hood attached to the back window. The hood was made of cardboard and cloth. The exhaust hood was powered by twin window fans. The hood is situated directly above a table. The table had a tray with what appeared to be chemical burns on and around the tray. The affiant knows that ether [is] the a chemical used to manufacture methamphetamine. The affiant also knows that manufacturing methamphetamine creates harmful gases. Agent Dixon who is meth lab certified with the Kansas Bureau of Investigation related that it appeared that a methamphetamine lab was present. Agent Dixon added that he observed a marijuana smoking device on the floor of the bedroom.
14. Delbert Barker told the affiant that Patrick Freel stores his belongings throughout the residence. Delbert Barker told the affiant that Patrick Freel has manufactured methamphetamine no less than six times in the residence. The affiant asked Delbert Barker about the dark blue Cadillac, tan Mazda, and gray Toyota Camry located outside of the residence. Barker told the affiant that the vehicles belong to Patrick Freel and that he rotates which vehicles he drives. The affiant asked Delbert Barker if Patrick Freel stores items in the vehicles used to manufacture methamphetamine, Delbert Barker related that he was not sure but he might.
15. Both Delbert Barker and Patrick Freel are unemployed. Patrick Freel had approximately $800.00 cash in his pocket when he was arrested. Patrick Freel told the affiant that he obtained the money by selling cars. Patrick Freel told the affiant that the dark blue Cadillac and the gray Toyota Camry are his and the tan Mazda belongs to his brother but it does not run. Freel related that he was currently working on the Mazda for his brother.
10. The affidavit also contained the following note handwritten by Sergeant Fink:
Delbert Barker told the affiant that he has lived at the residence located at Lot # 5 613 Riley Ln. Manhattan approximately 14 months. Barker stated that shortly after renting the residence, Patrick Freel moved in with him and they have shared the residence for several months.
11. The affidavit contains some inaccurate information. There are no videotapes showing Freel purchasing Sudafed at the Target store in Manhattan, Kansas on either March 3, 2001 or March 31, 2001. There is a videotape showing Delbert Barker purchasing Sudafed at the Target store in Manhattan, Kansas on March 31, 2001. This videotape also shows Barker leaving the store and entering a dark blue, four-door Cadillac.
12. Sergeant Fink took his affidavit before a state court judge. The judge issued the search warrant for the trailer. Sergeant Fink returned to the trailer with the search warrant. A search of the trailer revealed numerous items associated with the production of methamphetamine.
CONCLUSIONS OF LAW
1. The defendant initially contended that the police had entered a third party's home to serve an arrest warrant without consent or authority. The defendant has withdrawn this argument. The defendant does not challenge the initial entry into the trailer to serve the arrest warrant. The defendant contends (1) the consent to search was not voluntary; (2) the owner of the trailer did not have authority to consent to a search of the defendant's rented room; (3) the subsequent search warrant was based upon illegally obtained information; (4) the search warrant contained materially inaccurate statements and material omissions; and (5) United States v. Leon, 468 U.S. 897 (1984) is unavailable to salvage this search because the affiant for the warrant participated in the initial search without consent and the subsequent warrantless search of the trailer. Accordingly, the defendant argues that all of the evidence that was seized must be suppressed.
2. The government contends that because no information contained in the search warrant affidavit was obtained as a result of the consent to search, then both the issue of the consent to search and Barker's authority to consent to the search of the defendant's room is irrelevant. The government asserts that the validity of the warrant rises or falls depending on the propriety of the initial entry into the residence. The government suggests that the initial entry was legal.
3. Based upon Payton v. New York, 445 U.S. 573 (1980), the court agrees with the initial argument of the government. In Payton, the Supreme Court recognized that the common law maxim "every man's house is his castle" is part of our Fourth Amendment jurisprudence prohibiting unreasonable searches and seizures. Payton, 445 U.S. at 590 (stating the Fourth Amendment draws a "firm line at the entrance to the house [and] [a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant"). Although searches and seizures inside a home without a search warrant are presumptively unreasonable, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. at 603.
In applying Payton, the court must consider a two-pronged test: officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999). The evidence shows and the defendant does not contest that the officers had a reasonable belief that the defendant lived at the trailer and was there at the time they served the arrest warrant. Accordingly, under Payton, the officers were legally in the residence.
4. Since the officers were legally in the residence, they could take note of anything they smelled or observed in plain view. Consent was not necessary to search the residence for the defendant. Nevertheless, the court finds that the consent given by Barker was valid. "Valid consent is that which is 'freely and voluntarily given.'" United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1990) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)), cert. denied, 501 U.S. 1207 (1991). Whether a defendant freely and voluntarily gave consent to a search is a question of fact to be determined from the totality of the circumstances. United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). "In determining voluntariness, we consider whether the consent was 'unequivocal and specific and freely and intelligently given,'" and whether it was given without implied or express duress or coercion. United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)). A "coercive show of authority" includes "the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled." United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000). The court finds insufficient evidence of coercion or duress. The totality of the circumstances suggests that Barker's consent was given freely and voluntarily.
5. With the aforementioned decisions, we proceed to the issues surrounding the search warrant. The defendant initially suggested that the search warrant affidavit contained misleading and inaccurate information as well as material omissions, including the following: (1) no mention of the written consent; (2) failed to distinguish between what was observed during the initial entry and what was observed when consent to search was given; and (3) contained no explanation of the circumstances of the consent. In a supplemental brief, the defendant offered new allegations of false statements contained in the search warrant affidavit. The defendant contends that the affidavit contains the following false information: (1) he was videotaped buying Sudafed at a Target Store in Salina, Kansas on March 3, 2001; (2) he was videotaped buying Sudafed at a Target store on March 31, 2001; and (3) a marijuana smoking device was observed in plain view in the bedroom of the trailer during his arrest.
6. It is a violation of the Fourth Amendment for an affiant to knowingly and intentionally, or with reckless disregard for the truth, make a false statement in an affidavit. Franks v. Delaware, 438 U.S. 154, 171-72 (1978). Moreover, the standards of deliberate falsehood and reckless disregard set forth in Franks apply also to omissions. United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). The false statement or omission must, however, be necessary to the finding of probable cause in order for the fruits of the search to be suppressed. Franks, 438 U.S. at 171-72; Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990). In a case where the defendant alleges information was intentionally omitted from an affidavit, the existence of probable cause is determined by examining the affidavit as if the omitted information had been included and determining whether the affidavit would still give rise to probable cause. Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996).
The Franks decision did not define "reckless disregard for the truth," other than to suggest that the standard required more than mere negligence on the part of the affiant. Franks, 438 U.S. at 171. The Tenth Circuit has indicated that "reckless disregard for the truth" occurred when "the affiant in fact entertained serious doubts as to the truth of his allegations." Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991) (internal citations omitted). The defendant bears the burden to demonstrate the affidavit's falsity or reckless disregard for the truth by a preponderance of the evidence. United States v. Tisdale, 248 F.3d 964, 973 (10th Cir. 2001).
7. The court does not find, in light of the aforementioned findings, that any of the matters noted by the defendant concerning the consent given by Barker would have affected the magistrate's evaluation of the evidence. These matters provide no basis to invalidate the warrant.
8. The court next turns to the alleged false statements contained in the affidavit. The court does not find that the statement concerning the marijuana smoking device was false. Both officers saw the device in the room where the defendant was arrested. The court found their testimony on this issue credible.
9. There is no dispute that the statements concerning the defendant's purchase of Sudafed at the Target store in Manhattan were false. The videotape supplied to the court did not support these statements. The court must therefore consider whether the inclusion of this untrue information was either deliberate or in "reckless disregard for the truth." We do not find that the defendant has successfully demonstrated by a preponderance of the evidence that the false information was included intentionally or recklessly. Sergeant Fink received this information from Detective French who he previously worked with and determined to be reliable. Detective French had received this information from a detective with the Salina Police Department. The court did not find any evidence that suggested Sergeant Fink was in the least concerned or doubtful about the truthfulness of the statements he made. Accordingly, we cannot conclude Sergeant Fink's false statements were made intentionally or recklessly.
10. Even if we were to find that the false statements were made deliberately or with a reckless disregard for the truth, we would find that the untrue information was not an essential element of the probable cause showing relied upon by the judicial officer in issuing the search warrant. The other information in the affidavit, particularly the observations of Agent Dixon and Sergeant Fink during the arrest of the defendant, provide probable cause for the search of the trailer. Accordingly, the court shall deny defendant's motion to suppress.
IT IS THEREFORE ORDERED that defendant's motion for disclosure of expert testimony (Doc. # 20) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to exclude expert testimony (Doc. # 23) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to suppress evidence obtained from search of residence (Doc. # 24) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for disclosure of confidential informants (Doc. # 50) be hereby denied.
IT IS SO ORDERED.