Opinion
No. CR03-3037.
July 2, 2003.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's June 20, 2003 motion to suppress evidence (docket number 24). The court held an evidentiary hearing on this motion on May 16, 2003, at which the defendant was present and represented by Wallace Taylor. The government was represented by Assistant United States Attorney C.J. Williams. It is recommended that the motion to suppress be denied.
This motion was originally filed in United States v. Hall, CR03-3020. That case was dismissed when the defendant was indicted as a co-defendant in this matter. The parties agree that the record relating to the motion in case CR03-3020 should be incorporated herein by reference.
The motion to suppress challenges the validity of a traffic stop conducted January 11, 2003, when the defendant was driving a vehicle owned by his girlfriend. During that stop, controlled substances were seized from the car. The defendant further challenges a subsequent confession and evidence seized during a search of his business and home. The court makes the following findings of fact and conclusions of law.
Findings of Fact
On January 11, 2003, the defendant was driving eastbound on Highway 122 near Mason City, Iowa. Iowa State Trooper Chris Calloway was also headed eastbound on Highway 122. With the trooper's windows rolled up and his radio on, he heard the loud muffler from the Honda Accord that the defendant was driving. The trooper activated his emergency lights to stop the defendant's vehicle. The defendant continued on approximately six blocks before stopping his vehicle.
The defendant's girlfriend and the owner of the vehicle in question, Angela Thompson, testified that she did does not believe that the muffler was loud on the car. Further, the defendant's father, an official with the State of Iowa Department of Motor Vehicle Enforcement, testified that when he picked up the car from the impound lot, he did not believe that the muffler was excessively loud. Finally, the owner of the impound lot testified that it did not sound excessively loud to him as he heard it in the parking lot and as the defendant's father drove the vehicle down the street. Testimony concerning whether a muffler is excessively loud is extremely subjective. In light of the defendant's admission at the time of the traffic stop that the muffler was loud, the court believes that Trooper Calloway was justified in concluding that there was probable cause to stop the car for an excessively loud muffler.
Once the car was stopped, Trooper Calloway approached the front passenger side of the vehicle. The passenger rolled down the window and the trooper was able to smell the faint odor of burned marijuana emanating from the car. The trooper requested the driver's identification but he had no license, registration, or proof of insurance. The defendant was asked to step back to the trooper's car. When he got back into the car, the defendant and the trooper immediately had a conversation about why the defendant was driving a car registered to an Angela Thompson. The defendant stated that Ms. Thompson complained that it was running poorly and he was checking it out. He further indicated that the only problem with the car that he was able to identify was that it had a loud muffler. The trooper informed the defendant that he would get a warning ticket for the loud muffler. Ultimately, the trooper wrote warnings for a cracked windshield, failure to carry a driver's license, registration, or proof of insurance, and for the loud muffler.
Because the defendant did not have a driver's license, Trooper Calloway immediately requested the status of the defendant's license by a radio transmission to his dispatcher. He was informed that the defendant recently had his driver's license suspended for a controlled substances conviction but that the defendant was a valid driver at the time of the stop.
Trooper Calloway then informed the defendant that he had smelled marijuana coming from the passenger compartment of the vehicle. He specifically told the defendant that he was not accusing him of smoking marijuana but that he smelled marijuana coming from the passenger compartment. The trooper went back to the car to get identification from the passenger. He smelled marijuana again.
Trooper Calloway asked the defendant whether there were any controlled substances in the car. The defendant denied that any were present. The trooper then requested consent to search the car and the defendant denied consent. The trooper specifically told the defendant that he was going to search the car and that the smell of marijuana emanating from the vehicle provided probable cause for the search. The trooper requested back-up assistance from another officer in the area. While they were waiting for the back-up officer to arrive, the defendant requested an opportunity to retrieve a bag from the car. Trooper Calloway thought that the defendant was referring to a duffle bag. The trooper asked whether the bag had drugs in it. The defendant indicated that he had marijuana in the car and that he was going to retrieve it for the officer so that the trooper would not tear his girlfriend's car apart. The trooper assured the defendant that he would not tear the car apart. Based on the defendant's admission that he had controlled substances in the car, the defendant was placed under arrest, the car was searched, and the trooper found a burnt marijuana cigarette in the ashtray as well as two bags of marijuana and some methamphetamine in the center console of the car.
Mason City Police Department Officer Logan Wernet took the information from the traffic stop and combined it with information provided by Special Agent John Graham of the Division of Narcotics Enforcement in an effort to get search warrants for the defendant's residence and his business. Special Agent Graham had debriefed a defendant in this court named Richard Mayo. Mayo told Special Agent Graham that he had been involved with the defendant since 1996 in the distribution of controlled substances including methamphetamine, marijuana, ecstasy, and steroids. This activity included the distribution of pound quantities of methamphetamine and marijuana. Specifically, Mayo told Special Agent Graham that he had observed three pounds of methamphetamine at the defendant's shop located at 200 19th Street SW in Mason City, Iowa, in early 2002. Mayo told Special Agent Graham that the defendant stored drugs in tires and in the trunks of vehicles at that shop. Mayo also told Special Agent Graham that in June of 2002, the defendant was involved in the theft of 2-1/2 pounds of methamphetamine, 2-1/4 pounds of "ice" methamphetamine, and 23-1/2 pounds of marijuana.
Based on the information that Richard Mayo provided to Special Agent Graham and the information from Trooper Calloway arising out of the traffic stop, Officer Wernet received a search warrant for the defendant's shop described as follows:
200 19th Street South West Mason City, Iowa
North and East end of white colored cement brick building
Sign on east side of garage area "For Sale Rye Realty"
All vehicles on premises of shop
The building located at 200 19th Street SW is a large commercial building. It has a warehouse-type area on the south side of the building. There is a separate shop area on the west side of the building. The north side of the building has separate rental garages. In the center of the building is an area where the roof has caved in. In his motion to suppress, the defendant contends that his portion of the building cannot be found at 200 19th Street SW. However, the evidence admitted at the hearing is uncontradicted that the address of the entire building is 200 19th Street SW in Mason City, Iowa. The defendant contends that the police only had authority to search the north and east end. The government contends that it had authority to search the entire building including the defendant's shop located on the south and west sides. The inclusion of the phrase "north and east end of white colored cement brick building" is clearly ambiguous in light of its later reference to the search of the "shop" which is on the south and west sides of the building. The police found a large quantity of controlled substances in the portion of the building occupied by the defendant.
Officer Wernet was also able to secure a search warrant for the defendant's residence based on information from the traffic stop, information provided by Mayo to Special Agent Graham, information from a concerned citizen who reported heavy short-term traffic at the defendant's residence, and that a large amount of controlled substances were found at the defendant's shop. The warrant authorized the search of:
124 28th Street South West Mason City, Iowa
Yellow colored, single story, wooden framed, family dwelling
Detached single stall garage, and shed
Controlled substances and drug paraphernalia were also found at the defendant's residence.
The defendant was transported to the Cerro Gordo County Jail and was booked for drug trafficking offenses. The next day, the defendant requested an opportunity to speak with Officer Wernet. Officer Wernet and David Tyler went to the jail to speak with the defendant. The defendant was given Miranda warnings which he stated he understood. He agreed to talk to the police officers and subsequently confessed to drug trafficking activities.
Conclusions of Law Stop and Search of the Automobile
The defendant contends that Iowa State Trooper Chris Calloway did not have probable cause to search the vehicle he was driving after he stopped the defendant for an excessively loud muffler. Law enforcement officers are permitted to stop and briefly detain individuals for investigative purposes so long as they have "a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). A traffic violation, however minor, creates probable cause to stop the driver of the vehicle. United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (citations omitted). Here, Trooper Calloway observed the automobile the defendant was driving and heard a muffler he considered excessively loud, constituting a traffic violation. Therefore, Trooper Calloway had probable cause to stop the vehicle because of the traffic law violation.
After lawfully stopping the vehicle, Trooper Calloway had probable cause to search the vehicle after smelling burnt marijuana emanating from the car. An officer who smells burnt marijuana coming from a vehicle has probable cause to search the vehicle for drugs. United States v. Peltier, 217 F.3d 608, 610 (8th Cir. 2000); see also United States v. Caves, 890 F.2d 87, 90 (8th Cir. 1989) (stating "[t]he Supreme Court has recognized that the odor of an illegal drug can be highly probative in establishing probable cause for a search.") (citing Johnson v. United States, 333 U.S. 10, 13 (1948)). When Trooper Calloway approached the vehicle, he smelled the odor of burnt marijuana emanating from the passenger side of the car. When he told the defendant that he would search the vehicle based on probable cause, the defendant admitted that he had a sack of marijuana and he would retrieve it himself. Based upon the odor of burnt marijuana coming from the car and the defendant's own admissions, Trooper Calloway had probable cause to search the entire vehicle for drugs.
Statements Made During the Course of the Stop and Search
The defendant contends that because the stop and search of the automobile were illegal, any subsequent statements made by him should be suppressed as fruit of the poisonous tree. The government argues the statements should not be suppressed because the stop and search of the vehicle were lawful, but even if they were not, the statements are still admissible because the defendant made them voluntarily and after he had been given his Miranda rights.
The procedural safeguards defined in Miranda apply when law enforcement officers interrogate a suspect in custody. InUnited States v. Griffin, the Eighth Circuit Court of Appeals identified six common indicia of custody:
1) whether the suspect was informed at the time of the questioning that the questioning was voluntary, that the suspect was free to leave or request officers to do so, or that the suspect was not considered under arrest; 2) whether the suspect possessed unrestrained freedom of movement during questioning; 3) whether the suspect initiated contact with the authorities or voluntarily acquiesced to official requests to respond to questions; 4) whether strong arm tactics or deceptive stratagems were employed during questioning; 5) whether the atmosphere of the questioning was police dominated; or 6) whether the suspect was placed under arrest at the termination of the questioning.United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The first three factors have been called "mitigating factors" and the last three have been called "coercive," tending "to aggravate the existence of custody." Id. A suspect is "in custody" for the purposes of Miranda where "there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
The defendant argues that statements made after the traffic stop on January 11, 2003 regarding drugs in the car should be suppressed as fruit of the poisonous tree because the stop and search of the vehicle were unlawful. However, this court has already found that the stop and search of the vehicle were lawful and therefore, any subsequent statements made by the defendant cannot be classified as fruit of the poisonous tree.
Further, the defendant was not "interrogated" within the meaning of Miranda at the traffic stop. Interrogation includes express questioning and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). After Trooper Calloway told the defendant that he would search the vehicle based on probable cause because he smelled the odor of burnt marijuana coming from the vehicle, the defendant admitted to having marijuana in the car. This was not "interrogation" within the meaning of Miranda. The Supreme Court has held that the circumstances associated with a routine traffic stop do not cause a person to be in custody as that term is used inMiranda. Berkemer v. McCarty, 468 U.S. 420, 441 (1984). Further, voluntary statements, not in response to interrogation, are not barred by the Fifth Amendment, regardless of whether theMiranda warnings were issued or not. United States v. Lawrence, 952 F.2d 1034, 1036 (8th Cir. 1992) (citing United States v. Wood, 545 F.2d 1124, 1127 (8th Cir. 1976)). The defendant's request to retrieve marijuana from the car was not done in response to questioning. It was volunteered by him and not the product of interrogation.
Search of the Defendant's Shop and Residence
The defendant contends that probable cause did not exist for the search warrants obtained on January 12, 2003 for his shop and his residence. Because the evidence sought to be suppressed was gathered pursuant to search warrants, the court employs the standard set forth in Illinois v. Gates to determine the existence of probable cause. The United States Supreme Court provided the standard an issuing judge must follow in determining whether probable cause supports an application for a search warrant and, consequently, the duty of the reviewing court when considering the propriety of that determination:
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.Illinois v. Gates, 462 U.S. 213, 238 (1983). "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusion of others." Id. at 239. However, it is clear that only the probability, and not a prima facie showing, of criminal activity is required to establish probable cause. Id. at 235 (citation omitted).
This court does not review the sufficiency of an affidavit de novo. An issuing judge's "determination of probable cause should be paid great deference by reviewing courts." Id. at 236 (citation omitted). The question presented on review of an issuing judge's determination is not whether the reviewing court would have issued the warrant based on the affidavit as presented, but whether the court which did issue the warrant had a "`substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39 (citation omitted).
The affidavits in this case provided a substantial basis for the issuing judge to determine that there was probable cause that police officers would find controlled substances or drug-related items at the defendant's shop and residence. The application for the search warrants included information of the traffic stop in which the defendant was found in possession of marijuana and methamphetamine, and also contained information from a confidential informant regarding the defendant's history of drug trafficking and the informant's knowledge that the defendant used his business to store and sell drugs. Further, the application for a search warrant for the defendant's residence included information from a concerned citizen who called police reporting heavy short-term traffic at the defendant's residence and also the fact that an earlier search of the defendant's shop uncovered controlled substances. Upon review of the affidavits and considering the applicable law, the court concludes that they provided the magistrate with a "substantial basis" for finding probable cause for issuance of the search warrants.
Even where probable cause is lacking, the court's inquiry does not end. Pursuant to United States v. Leon, in the absence of an allegation that the issuing judge abandoned a neutral and detached role, suppression is appropriate only if the affiant was dishonest or reckless in preparing the affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. United States v. Leon, 468 U.S. 897, 921 (1984). In Leon, the United States Supreme Court noted the strong preference for search warrants and stated that "`in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.'" Id. at 914 (quoting United States v. Ventresca, 380 U.S. 102, 106 (1965)).
"[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," . . . for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has acted in "good faith in conducting the search." . . . Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, . . . and it is clear in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
Id. at 922-23 (internal citations omitted).
Pursuant to Leon, suppression remains an appropriate remedy: (1) where the magistrate issuing a warrant was mislead 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, Franks v. Delaware, 438 U.S. 154 (1978); (2) where the issuing magistrate wholly abandons the judicial role and becomes a "rubber stamp" for the government; (3) where the officer relies on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid. In Leon, the remedy of suppression was not ordered despite the fact that the affidavit in that case did not establish probable cause to search the residence in question. The standard announced inLeon is an objective standard.
The search warrant application and affidavits for the defendant's shop and residence included information that the defendant was stopped for a traffic violation and controlled substances were found in the car and the information from the confidential informant. The warrant applications requested that law enforcement officers be allowed to search the residence and shop of the defendant for any evidence of marijuana, methamphetamine, cocaine, LSD, drug paraphernalia, any records pertaining to the acquisition or sale of drugs, and any other controlled substances. There was probable cause, based on the search warrant applications, to issue the warrants. If not, the affiant could reasonably rely on the magistrate's assessment of probable cause. Suppression is not appropriate here.
The defendant further argues that the search warrant for his shop contained the incorrect address. The warrant authorized the search of 200 19th Street SW. The building in which the defendant's shop is located is a single building with separate units inside. The building has no street number on the outside. The building was listed with a realty company selling the property as 200 19th Street SW. The officers were aware of the building and knew that the defendant maintained his shop there. The search warrant accurately identified the building. The search warrant allowed for the search of the defendant's shop at 200 19th Street SW and that is what the officers did. It is undisputed that the officers only searched the defendant's shop and no one else's property in the building, which is what the warrant authorized them to do.
The defendant further contends that the information provided in the applications for the search warrants is stale. There is no bright-line test for determining when information is stale. "[T]he vitality of probable cause cannot be quantified by simply counting the number of days" from the existence of probable cause to the issuance of a warrant. United States v. Formaro, 152 F.3d 768 (8th Cir. 1998) (citations omitted). In narcotics investigations, "intervals of weeks or months between the last described act and the application for a warrant [do] not necessarily make the information stale." Id. (citations omitted). Where the suspect has a history of drug dealing and the warrant was a part of an ongoing investigation, there is no reason for officers to believe that a warrant would become stale before the expiration date for executing the warrant. United States v. McCoy, 6 Fed.Appx. 493, 495 (8th Cir. 2001). "Where continuing criminal activity is suspected, the passage of time is less significant." United States v. Gibson, 123 F.3d 1121 (8th Cir. 1997) (quoting United States v. LaMorie, 100 F.3d 547, 554 (8th Cir. 1996)).
The search warrant applications included historic information regarding the defendant's drug trafficking from the confidential informant along with information regarding the seizure of one ounce of methamphetamine and an amount of marijuana from the defendant one day prior on January 11, 2003. Officers applied for search warrants for the defendant's shop and home on January 12, 2003. Because of the nature of the continuing drug activity, the information in the affidavits is not stale. Even if the warrants were stale, suppression is not appropriate underLeon. The officers acted in reasonable reliance on the warrants and therefore suppression is not appropriate.
Statements Made After Execution of the Search Warrants
The defendant argues that statements obtained from him by police on January 12, 2003 while he was in the Cerro Gordo County Jail should be suppressed as fruit of the poisonous tree because the search of his shop and home were unlawful. As this court has already found, the search of the defendant's shop and home were based upon probable cause and were lawful. In addition, the defendant was given his Miranda rights after the traffic stop on January 11, 2003 and again on January 12, 2003. On January 12, 2003, the defendant asked a jailer to contact Officer Wernet because the defendant wanted to speak with him. When Officer Wernet arrived at the jail, he read the defendant his Miranda rights a second time and the defendant indicated that he understood his rights but wished to talk. He then made a confession regarding his involvement in drug trafficking. The defendant initiated this conversation with Officer Wernet. The confession he made was not a result of interrogation by the police because it was not a response to any inquiry. He made voluntary statements after being advised of his right to remain silent.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the report and recommendation in accordance with 28 § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's motion to suppress evidence be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).