Opinion
Cause No. IP 03-79-CR-1 H/F.
February 2, 2004
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
A federal grand jury indicted defendant Larry Jackson under 18 U.S.C. § 922(g)(1) on two counts of unlawful possession of fifteen firearms and ninety-two rounds of ammunition by a person with a prior felony conviction. The two counts stem from two different searches of Jackson's residence at 6050 East 32nd Street in Indianapolis. Both searches were carried out pursuant to search warrants. The first search was on February 17, 2002. The second was more than a year later, on March 4, 2003.
Jackson has moved to suppress the evidence against him, arguing that both searches violated his Fourth Amendment rights. After the court heard evidence, the parties filed post-hearing briefs. Pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the court now states its findings of fact and conclusions of law. As explained below, the court grants the motion to suppress as to evidence from the first search. Based on the reasoning of Kyllo v. United States, 533 U.S. 27 (2001), the first search warrant was obtained with information obtained through a warrantless and unconstitutional search when police officers used a drug-sniffing dog at the door of Jackson's home to enhance their ability to find out what was inside the home. The court denies the motion with respect to evidence from the second search.
I. The February 17, 2002 Search
On February 17, 2002, Indiana State Police officers and Miami County sheriff's deputies were conducting surveillance of one Corey Mack pursuant to a drug-related arrest warrant. A confidential informant had told the officers that Mack regularly dealt marijuana at the Kokomo YMCA on Sundays where he also played basketball. The officers were watching Mack to try to learn where he was getting the marijuana and who else was involved.
On February 17th, the officers watched Mack leave his Indianapolis home, stop at two apartment complexes in Indianapolis, and pick up someone at the airport. According to Indiana State Police Detective Brian Elmore, Mack eventually returned to his home. There the officers observed him carrying bags in and out of the house. Mack then left his home and arrived at the 6050 East 32nd Street residence of defendant Larry Jackson in Indianapolis. The officers knew that the home was not Mack's home. They had planned to follow Mack to Kokomo and to arrest him there, but over the course of the day they changed their minds. The officers arrested Mack as soon as he drove into the driveway of Jackson's residence, before he could enter the house. While Mack was in custody outside the house, he explained to the officers that he was there to pick up a friend from the house to take him to Kokomo.
The officers then approached the Jackson residence. Detective Elmore testified that he spoke with Anderson Jackson, who is the younger brother of Larry Jackson. Anderson told the officers that he lived at 6050 East 32nd Street with his brother Larry and Larry's girlfriend. A check of Anderson's record showed that he was wanted on an open warrant in Huntington County, and the officers arrested him. The police also asked all other occupants of the house (including several men working on a remodeling project for Larry Jackson) to step outside to speak with the officers, and they did so.
Detective Mike Morris of the Indiana State Police Department came to the residence at some point after Mack had been arrested. Detective Morris led his drug-sniffing dog around the premises, including around the vehicles that were parked there, and around the exterior of the residence. The dog indicated for drugs on a truck parked in the driveway of the house, identified as belonging to someone other than Larry Jackson. Outside the back door of the residence, the dog also gave an indication for drugs.
Detective Elmore then asked Larry Jackson to consent to a police search of the house. Initially, Jackson refused to allow the officers to search his home. When Detective Elmore stated that he would get a search warrant, Jackson agreed to allow certain portions of the house to be searched. When Elmore told Jackson that such limits were unacceptable, Jackson again refused permission for any search.
Based on the above facts, officers prepared a probable cause affidavit for a warrant to search the home. The affidavit focused on the dog's signal at the back door. The affidavit also noted that Jackson had been willing to allow a limited search of the home but had changed his mind when the officer said a complete search would be needed. A magistrate of the Marion Superior Court issued a search warrant for Jackson's home. The search warrant authorized a search for "[a]ny and all controlled substances. Items used for the sale, distribution, cultivation and manufacturing of controlled substances. Monies derived from the sale and distribution of controlled substances. Receipts and ledgers used in the sale and distribution of controlled substances."
The officers' search of Jackson's residence did not produce any controlled substances or other items related to drug distribution or manufacturing within the scope of the search warrant. But the officers found eight handguns, one semi-automatic rifle, one rifle, and two shotguns. Those items were seized and are the subject of count one of the superseding indictment. The police also searched the vehicle on which the dog alerted. Again they found no drugs or evidence of drugs.
The court grants the motion to suppress the firearms seized in the February 17, 2002 search because the critical information needed to support the warrant — the dog's signal at the back door of the residence — was obtained in a search that violated the Fourth Amendment.
After the police officers arrested Mack outside the Jackson home, they did not need probable cause to approach the home and to ask to talk to the occupants. This "knock and talk" technique is a permissible police procedure that does not require probable cause or even reasonable suspicion. See United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999) (discussing "knock and talk" technique and affirming district court's grant of motion to suppress for different reasons). The police officers did not have either probable cause or reasonable suspicion as they approached Larry Jackson's residence. Mack had told them he was going to Jackson's residence to pick up a friend, but nothing more. When the officers then knocked on the door to 6050 East 32nd Street, they were operating under a generalized suspicion of wrongdoing, not sufficient without consent or exigent circumstances, to search the home. They certainly did not have information sufficient to support a search warrant for the residence.
Any person would have been free to walk up to the door of Jackson's home and ring the doorbell. Any person could also have been denied entry to the residence, lawfully, just as Jackson here lawfully refused police entry and refused to consent to a search. See Florida v. Bostick, 501 U.S. 429, 437 (1991) ("a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure."); see also, e.g., United States v. Hyppolite, 65 F.3d 1151, 1157 (4th Cir. 1995) (explaining that probable cause cannot be based on assertion of right to refuse consent to a search); United States v. Prescott, 581 F.2d 1343, 1350-52 (9th Cir. 1978) (conviction as accessory after the fact for concealing fugitive reversed where conviction was based on evidence that defendant refused to allow police entry into his home without a warrant). The fact that Jackson refused to consent to a search could not support the application for a search warrant.
The search warrant for the residence could not have been issued without the information that a drug-sniffing dog had alerted at the back door of the residence. Apart from that information, the officers knew only that a drug suspect, Corey Mack, had intended to pick up another person at the residence.
The probable cause affidavit provided only minimal information about the reliability of the dog in question. The affidavit said only that the dog had been "certified through the National Narcotics Detection Dog Association," and that in the past two and a half years, the dog had discovered approximately 750 pounds of marijuana, three pounds of methamphetamines, seven pounds of cocaine, and more than $100,000 in currency. The affidavit provided no information about any false positive alerts, and that silence leaves room to question whether such an incomplete report about the dog's reliability was sufficient to support probable cause. See generally United States v. Limares, 269 F.3d 794, 797-98 (7th Cir. 2001) (upholding search based on affidavit that dog was reliable where later evidentiary hearing showed dog had only seven percent false positive alerts); United States v. Adams, 26 F.3d 702, 705 n. 5 (7th Cir. 1994) (noting need to show a drug-sniffing dog's reliability); United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980) (finding probable cause affidavit sufficient where affiant told judge that dog had been trained and had "proven reliable" on prior occasions). Because the magistrate judge accepted the information about Detective Miller's drug-sniffing dog as sufficient for probable cause, however, the good faith exception to the exclusionary rule would bar suppression of the evidence on a theory that the affidavit failed to establish the dog's reliability.
Jackson contends that the use of the dog to sniff the back door of his house amounted to an unreasonable and warrantless search, so that the foundation for the search warrant was obtained by violating his Fourth Amendment rights. The court agrees. The use of a drug-sniffing dog at the entrance of a home in this case is comparable to police use of a thermal-imaging device outside a home to scan the interior of that home in Kyllo v. United States, 533 U.S. 27, 34 (2001), which was held to be a search of the home in question.
The issue in Kyllo was whether the results of a thermal image of a suspect's home could be used to support an application for a search warrant. The thermal imaging device was used from a police car on a public street in front of the residence in question. The police were entitled to be there on the street and to observe the residence from that location. The Supreme Court concluded, however, that the police could not use the "sense-enhancing technology" to learn more about what was inside the residence. Justice Scalia wrote for the Court: "We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area,' constitutes a search — at least where (as here) the technology in question is not in general public use." 533 U.S. at 34, quoting Silverman v. United States, 365 U.S. 505, 512 (1961).
This reasoning applies directly to the "sense-enhancing" use of a specially trained dog. Dogs with such training are not in "general public use" (which refers to the general public, not to police forces, which often use such dogs to detect drugs). The information such a dog can provide about the interior of the home would not otherwise be obtained without a physical intrusion into the home. The court sees no constitutional distinction between the use of specially trained dogs and sophisticated electronics from outside a home to detect activities in or contents of the home's interior.
The government cites United States v. Ganser, 315 F.3d 839 (7th Cir. 2003), and United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990), for the proposition that normally, a "search" by a drug-sniffing dog is not legally a "search" at all. The situations in those cases are distinctly different from the situation in this case.
First, in Ganser, the Seventh Circuit held that the canine sniff of a piece of mail intercepted in transit to its intended recipient was permissible under the Fourth Amendment. The Ganser court noted that the Fourth Amendment allows police who have a reasonable suspicion that a mailed item is contraband to detain the item briefly for further investigation. 315 F.3d at 843. Mail, like airline luggage, passes through the hands of many different people, and reasonable suspicion can support the use of a drug-sniffing dog as part of a brief detention. Accord, United States v. Place, 462 U.S. 696, 707 (1983) (holding that dog sniff of airline luggage already in a public place was not a search within scope of Fourth Amendment).
Luggage and mail are movable objects within which the owner transports items that, at any time if opened by the carrier, may be exposed to the plain view of a bystander. See also City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) ("Like the dog sniff in Place, a sniff by a dog that simply walks around a car is much less intrusive than a typical search."). The same is not true of a home, which is at the core of the Fourth Amendment's guarantee that the "right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures, shall not be violated." As the Supreme Court wrote in Payton v. New York: "That language unequivocally establishes the proposition that '[at] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" 445 U.S. 573, 589-90 (1980), quoting Silverman v. United States, 365 U.S. 505, 511 (1961). The privacy interest a person maintains in a home is more substantial than the privacy interest in personal luggage while traveling on public carriers or in an automobile. And in Place, the Supreme Court specifically noted that the sniffed luggage was located in a public place. 462 U.S. at 707. There is nothing about the back door to a private residence that qualifies as a similarly "public place," even though the police officers themselves had a right to stand at the door, to knock, and to talk with anyone who came to the door.
In Vasquez, the other dog-sniff case cited by the government here, the Seventh Circuit held that a dog sniff of a detached garage adjoining a public alley and located in an otherwise vacant lot was not a search. That case is distinguishable from the present case because of the reduced expectation of privacy in a detached garage in a vacant lot, and the court limited its holding. See 909 F.2d at 238 ("the trial court correctly ruled that subjecting the garage to a 'sniff-test' from a public alley was not a warrantless search. We do not reach the issue of whether a showing of 'reasonable suspicion' is necessary to initiate a dog sniff search that is more intrusive and that exposes private information other than the presence of contraband"). Moreover, even if Vasquez were deemed to allow the police to bring drug-sniffing dogs to the doors of private residences as part of their investigations, such an extension of that 1990 decision would not be consistent with the Supreme Court's 2001 decision in Kyllo holding that use of a thermal imaging device outside a home was a search of the home subject to the Fourth Amendment.
None of the cases cited by the government hold that a canine sniff of the exterior of a home is not a search. In fact, the Second Circuit in United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985), held that police use of a drug-sniffing dog at the door of a suspect's residence was a search that required probable cause and a search warrant. The Second Circuit distinguished Place, noting that the canine sniff in Place had occurred in a public place, an airport. In Thomas the police were attempting to obtain information about the contents of a suspect's home. "The defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be 'sensed' from outside his door. Use of the trained dog impermissibly intruded on that legitimate expectation." Thomas, 757 F.2d at 1367.
Thomas is squarely on point on this issue. Just as in Thomas, the police in this case were attempting to intrude on the privacy of Jackson's home, where Fourth Amendment protections "are at their peak." United States v. Hardy, 855 F.2d 753, 759 n. 10 (11th Cir. 1988), citing Payton v. New York, 445 U.S. 573, 589 (1980); see also United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir. 1990) (canine sniffs of vehicles were not searches where dog did not invade home or "bodily integrity.").
Thomas has been criticized by courts as not consistent with Place, but those courts criticizing Thomas did not have the benefit of the 2001 decision in Kyllo regarding the use of "sense-enhancing" technology outside a private residence. Moreover, the federal cases criticizing Thomas that this court has found did not concern dog sniffs of entrances to private residences. See United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (canine team was already lawfully inside apartment by consent, and "sniff" was not further search); United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993) (sniff of commercial warehouse from outside was not a search); United States v. Colyer, 878 F.2d 469, 475-76 (D.C. Cir. 1989) (sniff of railroad "sleeper" compartment by dog in public corridor was not a search). The Seventh Circuit has not addressed Thomas on this issue.
Under the government's theory in this case, the police would be free to walk drug-sniffing dogs from door to door through a neighborhood, and to obtain a search warrant for any home where the dog indicated an odor of a controlled substance. And of course, a top-to-bottom search of a home for controlled substances, which can be concealed almost anywhere, can be an extremely thorough intrusion into a home. When one keeps in mind the fact that the police reported that the dog in question here alerted to a vehicle and the home, and that both were searched without finding a trace of controlled substances, the potential for abusive and unreasonable searches is especially evident. See also Doe v. Renfrow, 635 F.2d 582, 584 (7th Cir. 1980) (Fairchild, C.J., dissenting from denial of rehearing en banc) (dogs that sniffed thousands of high school students alerted on 50, of whom only 15 had contraband). Because the issuance of the search warrant depended on information the police had gathered by violating the Fourth Amendment, the search warrant was invalid and the evidence obtained from the February 17, 2002 search must be suppressed.
The Second Circuit in Thomas held that, without the evidence of the dog sniff, the evidence presented to the magistrate did not support a finding of probable cause. The court then held that the good faith exception to the exclusionary rule applied to the fruits of the search because the magistrate had approved of the use of the information from the dog sniff to secure the warrant. 757 F.2d at 1368. This portion of Thomas appears to be an improper application of the good faith exception, which does not apply to evidence obtained without a warrant and in violation of the Fourth Amendment. The Fourth Amendment and exclusionary rule would do little to discourage police violations if the police were free to violate the Fourth Amendment and then, without consequence, use illegally obtained evidence to obtain a search warrant. When the police apply for a search warrant, the job of the magistrate is to determine whether the evidence shows probable cause for the search, not to investigate whether all the evidence presented was obtained in a constitutional manner. The magistrate's later decision to issue a search warrant cannot insulate the earlier warrantless searches from application of the exclusionary rule. See Kyllo v. United States, 533 U.S. 27, 40 (2001) ("Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause — and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.").
II. The March 4, 2003 Search
On February 24, 2003, Indianapolis Police Detective Ronald Shoemaker collected trash bags that had been left outside Larry Jackson's residence. In searching the trash bags, officers found discarded mail indicating that the house was Larry Jackson's residence. On that day, the officers did not claim to have found any evidence of criminal wrongdoing.
On March 3, 2003, Detective Shoemaker again collected trash bags that had been left outside Jackson's home and searched them. This time the search turned up a plural but unspecified number of "burnt pre-rolled cigarette ends" and several clear plastic baggies that contained a "green leafy vegetation residue." That residue was tested and determined to be marijuana.
The police provided this information by affidavit to a state court judge on March 3rd. The affidavit also stated that the police had reports of domestic battery by Larry Jackson, and that he was reported to possess several firearms and was reported to have pointed firearms at the victims of the alleged domestic assaults. The affidavit also noted that Jackson was also reported to have several firearms inside his residence and was "alleged to deal narcotics from the residence." The affidavit provided no information about the source or reliability of any of these reports or allegations. The affidavit also did not include any information about the search in February 2002, which was authorized in order to find drug trafficking evidence. (That search had turned up no evidence of drugs or drug trafficking, but the search had produced the firearms and ammunition noted above.) The affidavit also noted that Jackson had an open warrant on a misdemeanor charge of domestic battery, and that he had a prior felony conviction for dealing cocaine from a 1989 case.
On this information, the judge issued a search warrant for the Jackson home. The warrant authorized a search for: "Controlled substances, instruments utilized to ingest controlled substances, currency associated with the sale of controlled substances, records and documents associated with the sale of controlled substances and any indicia of the crime [of] dealing and or possessing marijuana and any indicia of this particular crime." The warrant included an order for a no-knock entry.
Officers entered the Jackson residence at dawn on Sunday, March 4th. They did not knock or announce their presence in any way prior to entering. Instead, they broke open the door and fired a flash-bang grenade to stun occupants. During their search, officers found one handgun, two shotguns, and ninety-two rounds of ammunition. Those were seized and are the subject of count two of the superseding indictment. The officers also found two bullet-proof vests, six grams of methamphetamine, 175 grams of marijuana, and some cocaine residue. Those items are not part of the charges in the present indictment.
It was only from the marijuana cigarette "roaches" and marijuana residue found in Jackson's trash on March 3rd that police could justify a search of Jackson's home the next day. That evidence provided, if just barely, a basis for finding probable cause to believe that there could be more marijuana in the home. See United States v. Langford, 314 F.3d 892, 894 (7th Cir. 2002) (garbage search showing small quantities of marijuana was sufficient to support search for evidence of crime of possession of marijuana, but not for distribution). Thus, the warrant was lawfully based on probable cause for criminal possession of marijuana. However, everything else in the affidavit, except Jackson's 1989 cocaine conviction, amounted to nothing more than unsupported rumor. There was no evidence to support the warrant to the extent it authorized a search of the house for drug dealing activity. There was no drug dealing paraphernalia listed in the affidavit. There was no information in the affidavit from a confidential informant. See United States v. McKinney, 143 F.3d 325, 328-29 (7th Cir. 1998) (informant's information and corroboration of details gained by independent police work supported finding of probable cause under totality of circumstances test); United States v. McNeese, 901 F.2d 585, 595 (7th Cir. 1990) (evidence corroborating an informant's report established probable cause), overruled on other grounds, United States v. Westmoreland, 240 F.3d 618, 632-33 (7th Cir. 2001).
The most striking fact about this search, of course, is the extent of the police's exploitation of probable cause for marijuana possession. The police obviously did not treat this case as a routine marijuana possession case. Dawn raids into homes, launched with flash-bang grenades rather than knocks at the door, are surely rare in such cases. Jackson contends that the evidence should be suppressed because the method of executing the search warrant was unreasonable. See Wilson v. Arkansas, 514 U.S. 927, 934-36 (1995).
"Countervailing law enforcement interests" can justify an unannounced entry. United States v. Dunnock, 295 F.3d 431, 434-35 (4th Cir. 2002) (futility exception excuses knock and announce requirement where police officer has reasonable suspicion that occupants know of presence and purpose of police prior to entry into residence); United States v. Mendoza, 281 F.3d 712, 716 (8th Cir. 2002) (exceptions to rule where police have reasonable suspicion that knocking and announcing presence, under particular circumstances, would be dangerous or futile, or that it would inhibit effective investigation of crime by allowing destruction of evidence).
A dawn no-knock raid with a flash-bang grenade in a marijuana possession case, the only charge that the police could support with actual evidence rather than with rumor, is obviously unreasonable. Under Seventh Circuit law, however, unreasonable use of no-knock search warrants does not support suppression of the evidence seized. Langford, 314 F.3d at 894. Instead, victims of such tactics are left to available civil remedies under 42 U.S.C. § 1983 and Bivens actions. Id. at 894-95.
One difference between this case and Langford should be noted. In Langford, the warrant authorized the seizure of weapons, but the Seventh Circuit indicated that the police had not provided evidence that would support a finding of probable cause as to drug distribution or any weapons-related charge. 314 F.3d at 894. The Seventh Circuit nevertheless affirmed denial of the motion to suppress because the police acted in good faith reliance on a warrant that authorized them to search for and seize weapons. In this case, the warrant did not specifically authorize seizure of firearms, but the police knew that Jackson had a prior felony conviction. As a result, the officers searching his home could reasonably treat firearms in his home as contraband regardless of the good faith issue or the scope of the warrant. Also, the firearms and ammunition would have been found in a search limited to a search for evidence of possession of marijuana, without the unsupported finding in the warrant as to drug distribution.
Jackson argues that the police misled the judge who issued the search warrant. The police did not inform the judge of the results of the February 17, 2002 search (guns but no drugs). However, the absence of drugs more than a year earlier would not have been material when weighed against the results of a garbage search the day before. Immaterial omissions will not invalidate an otherwise legitimate search warrant. See, e.g., Forman v. Richmond Police Dep't, 104 F.3d 950, 964 (7th Cir. 1997) (immaterial misstatements will not invalidate otherwise legitimate warrant); Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003) (same rules apply to immaterial misstatements and omissions). The evidence cannot be suppressed on this theory.
The March 4, 2003 search was permissible based only on the police's exploitation of the law that allows garbage placed outside a residence for collection to be searched. California v. Greenwood, 486 U.S. 35 (1988). The police used a search warrant that was supported by probable cause for a relatively minor crime (possession of personal-use quantities of marijuana) to look for evidence of much more serious crimes that they suspected, but for which they did not have probable cause. The court is not aware of any constitutional principle under existing law, however, requiring that the extent of the search or the police resources devoted to it be proportional to the seriousness of the crime for which probable cause has been shown. Under existing law, the court finds no legal basis for suppressing the evidence seized in the March 4, 2003 search of Jackson's home.
Conclusion
For the foregoing reasons, defendant Jackson's motion to suppress is hereby granted with respect to evidence seized on February 17, 2002 but denied with respect to evidence seized on March 4, 2003.
So ordered.