Opinion
No. 1:03-cr-148 Edgar
September 30, 2003
MEMORANDUM AND ORDER
This case came before the Court on Tuesday, September 16, 2003, for an evidentiary hearing on defendant Tommy Jarrell's motion to suppress and request for a Franks hearing [Court File No. 14]. A search was conducted by Tennessee Bureau of Investigation Special Agent Rodd Walters and other law enforcement agents pursuant to a search warrant issued by a United States Magistrate Judge at defendant Jarrell's residence in McDonald, Tennessee, on May 20, 2003. Defendant challenges the constitutionality of the search, asserting that (a) the warrant lacks probable cause for its issuance; and (b) statements made by Special Agent Watters invalidate the warrant because, under Franks v. Delaware, 438 U.S. 154 (1978), those statements "recklessly omitted material facts that, if known to the magistrate, would not have resulted in a finding of probable cause."
The relevant parts of the affidavit for search warrant are as follows:
3. On December 21, 1999, affiant and others served a search warrant at the then residence of Tommy Jarrell which was located at 507 Tunnel Boulevard, Chattanooga, Tennessee. As a result of this search agents found a marijuana growing operation, including 124 active marijuana plants. Based upon this information a federal indictment was returned against Tommy Jarrell. Eventually, Tommy Jarrell pled guilty to manufacturing marijuana in federal court in Chattanooga, Tennessee. Currently, Mr. Jarrell's case is on appeal before the United States Court of Appeals for the Sixth Circuit. Mr. Jarrell is on appeal bond.
4. On Friday, May 16, 2003, affiant and others received information from DEA Agent Bob Chester regarding an anonymous caller and Tommy Jarrell. According to Agent Chester, the caller stated that he/she had been to the residence of Tommy Jarrell within the recent past, but the caller did not give a specific time as to when specifically the caller had been at the residence. The caller stated to Agent Chester that Jarrell was installing underground water and electrical systems for an indoor marijuana growing operation at the residence. The caller also stated that he/she knew that Jarrell had an indoor growing operation, but the caller did not explain how he knew that Jarrell had an indoor growing operation. Also, the caller told Agent Chester that he was aware that Jarrell was selling marijuana to the caller's sixteen year old son.
5. After the information provided by the anonymous caller and Agent Chester, affiant and others attempted to corroborate as much of the information as possible. Affiant was able to determine that Tommy Jarrell lived at 5432 McDonald Road, McDonald, Tennessee. Agent Marnie Corbitt checked NCIC for vehicle registrations for Tommy Jarrell. The computer search showed that Jarrell had vehicles registered to him and the registrations gave an address of 5432 McDonald Road, McDonald, Tennessee. Agent Corbitt then went to the residence of Jarrell. She determined there were at least two vehicles at the residence. One of the vehicles was bearing the tag "Rachl" which came back to Tommy Jarrell. Affiant is aware that Tommy Jarrell is married to a woman named "Rachel."
6. Affiant checked utility records for the residence at 5432 McDonald Road, McDonald, Tennessee. Affiant learned that the utilities are listed in the name of Rachel Jarrell, the wife of Tommy Jarrell. Affiant obtained the electrical usage records for the previous tenants of 5432 McDonald Road, McDonald, Tennessee. Affiant has learned from the search of the utility records that Jarrell has lived at this residence for approximately one year. Affiant received the utility records for the previous tenant at 5432 McDonald Road, McDonald, Tennessee.
7. Affiant is aware that the anonymous caller informed Agent Chester that Jarrell would be flying on a private aircraft to the Savannah, Georgia, area on Friday, May 16, 2003. The caller stated that Jarrell would be leaving between 8:00 a.m. and 9:00 a.m. on that date from the Chattanooga Airport on a plan belonging to Ronald Barnes. The caller informed Agent Chester that Jarrell would be carrying marijuana on his person during the flight. Affiant has verified that a plane belonging to a Ronald Barnes left the Chattanooga Airport at 8:30 on Friday, May 16, 2003. Affiant has also verified that there were passengers on the plane, but the Chattanooga Airport does not provide a passenger manifest for private flights. Affiant is also aware that a vehicle belonging to Ronald Barnes was in the driveway of Jarrell's residence on Monday, May 19, 2003.
8. On two separate occasions within the past two years affiant has learned that Jarrell's name has appeared on a list of individuals who have been ordering equipment associated with the indoor growing of marijuana. Jarrell's name appeared on the list in 2001 and 2002. This list is compiled through research done by HIDTA attorneys and affiant believes that it is at least 95% accurate based upon affiant's personal observations. Affiant has performed five searches from the list since May 1, 2003, and all five have resulted in the seizure of an indoor marijuana growing operation. In 2003, the list showed that more equipment was sent to a previous residence of Tommy Jarrell, but the packages were not sent in the name of Jarrell.
As can be seen from Agent Walters' affidavit, this is not the first time that defendant Jarrell has been before this Court on marijuana growing charges.
On September 1, 2001, Jarrell entered into a conditional plea of guilty in this Court to manufacturing marijuana. The plea agreement allowed him to appeal this Court's denial of a motion to suppress in that case. Jarrell was sentenced to a term of imprisonment of 13 months and allowed to remain free on an appeal bond. On June 25, 2003, the United Slates Court of Appeals affirmed defendants conviction. (Case No. 02-5067).
All of the information related by Agent Watters in the affidavit for the warrant is essentially accurate. Law enforcement officers went to considerable lengths to corroborate the information given to DEA Agent Robert Chester. Defendant is critical of what he considers the accuracy and completeness of information contained in the affidavit. However, that information was, at the time the affidavit was signed, entirely consistent with what Agent Walters knew at that time.
True, it turned out that defendant Jarrell was not in the private airplane which left the Chattanooga Airport on May 16, 2003, which airplane went to Sea Island, not Savannah, Georgia. However, Agent Watters never said in his affidavit that Jarrell was on the plane, only that the anonymous caller said that Jarrell would be on the plane. The information about the plane flighl, which did indeed occur, servedlo let the issuing judge know that the anonymous caller did have some accurate information. Moreover, we now know from the testimony at the suppression hearing on September 16, 2003, of Mr. Barnes, Jarrell's employer, that Jarrell was indeed invited to take this plane trip.
Further, everything that Agent Watters said about power usage by previous tenants in nearby houses was accurate. While Watters did not conduct a study to see if the nature of the construction in these others houses was such that could generate the need for more or less power, the defendant has made no showing that such a study would have had any bearing on the significance of the facts contained in the affidavit, nor has defendant shown that the information contained in Agent Watters' affidavit was in any way misleading. I. Franks Hearing
Defendant Jarrell requests this Court to hold a hearing pursuant to Franks v. Delaware, 43 8 U.S. 154, 98 S.Ct. 2674 (1978), to determine whether the affidavit of TBI Agent Rodd Walters omitted material facts in reckless disregard of whether the omissions would mislead a magistrate as to the true nature of the circumstances justifying the search.
In this instance, the Court concludes that defendant is not entitled to a hearing pursuant to Franks. The Sixth Circuit has stated:
A defendant who challenges the veracity of statements made in an affidavit that formed the basis for a warrant has a heavy burden. He must point to specific false statements that he claims were made intentionally or with reckless disregard for the truth. Franks v. Delaware, 43 8 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978); United States v. Barone, 584 F.2d 118, 121 (6th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1019, 59 L.Ed.2d 73 (1979). He must accompany his allegations with an offer of proof. Moreover, he should also provide supporting affidavits or explain their absence. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. If he meets these requirements, then the question becomes whether, absent the challenged statements, there remains sufficient content in the affidavit to support a finding of probable cause. Id.
If probable cause exists absent the challenged statements, a defendant is entitled to no more; however, if such cause does not exist absent the challenged statements, he is entitled to a hearing if he requests one. He must show at the hearing, by a preponderance of the evidence, that false statements were made either intentionally or with reckless disregard for the truth and that without these statements there is insufficient content in the affidavit to support a finding of probable cause. If he makes this showing, the evidence should be suppressed. Id. 438 U.S. at 155-56, 98 S.Ct. at 2676.United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
In United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002), the Sixth Circuit held that a Franks challenge "may be based on the omission of material facts from the warrant affidavit that would, if known to the issuing magistrate, dispel probable cause." Id. at 566 (citing United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997)). However, the Keszthelyi court cautioned that "an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information" Id. at 567. However, in Mays v. City of Dayton, 134 F.3d 809 (6th Cir. 1998), cert. denied, 524 U.S. 942 (1998), the Sixth Circuit held that "except in the very rare case where the defendant makes a strong preliminary showing that the affiant -with an intention to mislead excluded critical information from the affidavit, and the omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts." Id. at 815 (emphasis in original).
Here, defendant has not made the strong preliminary showing required by May for a Franks hearing. In his brief in support of both his motion to suppress and his request for a Franks hearing, defendant lists nine "material omissions [which] are evident from the affidavit that undermine the presence of any probable cause . . . "[Court File No. 14, pp. 13-14]. However, the "omitted" facts from the affidavit were not critical to the probable cause determination and they were "omitted" only because Agent Walters carried his investigation and corroborated the anonymous informant's tip as far as he could without revealing the investigation to the defendant.
First, the tip from the anonymous tipster was made to DEA Agent Robert Chester over the telephone. Agent Watters learned of the tip through an intermediary and after speaking with Agent Chester had no way to contact the anonymous informant to try and gain more information. Second, defendant asserts that he was not on the May 16, 2003 flight from Chattanooga to Sea Island, Georgia, which is in the vicinity of Savannah, Georgia. However, Agent Watters confirmed as much of the anonymous tip as he could without speaking to defendants' employer RonaldBarnes or one of the pilots of the plane, any one of whom could have revealed the existence of the investigation to the defendant.
Defendant also complaints about Agent Corbitt's incursion onto his property. He claims she trespassed and that she lied to his wife when questioned about her purpose for being on the property. While the government concedes that Agent Corbitt told defendant's wife a falsehood about why she was on the property, Agent Corbitt clearly would not have wanted to inform defendant's wife she was attempting to verify information for a search warrant.
Moreover, defendant complains about Agent Corbitt's trespass. At the September 16, 2003 hearing, Agent Corbitt testified that she encountered defendant's wife shortly after she entered the driveway to the house. Agent Corbitt testified she entered the driveway because she could find no mailbox or house number and she was trying to verify that the property was defendant's residence. Agent Corbitt further testified after she encountered defendant's wife in the gravel driveway and was asked to leave the property, she turned around at the first gravel turnaround she encountered. Further, Agent Corbitt testified that she did not see any "no trespassing" signs either when she entered or was on the property.
Jerry Morris, Sr. a private investigator hired by defendant, testified at the September 16, 2003 suppression hearing. Mr. Morris testified that the length of the driveway at defendant's residence was 1045 feet, and that the intersection where Agent Corbitt turned around and exited the property was 442 feet from the entrance to the driveway. Thus, Mr. Morris testified that at the point she turned around, Agent Corbitt would have been over 500 feet from defendant's residence. Mr. Morris also testified that the outbuilding was located approximately 117 feet from the residence; and, he stated there were no gates or chains blocking the driveway.
However, one of the omissions that defendant complains about is:
6. That neither the outbuilding nor the residency [sic] in which the Defendant was supposed to have been growing marijuana possessed any other indications that marijuana was being grown inside. For example, the officers omitted that neither building had covered windows to hide light, prevent heat loss, or avoid visual inspection of plants, or that either building had been specially altered. These omission occurred despite the fact that an agent had been on the property the day before the warrant was sought and saw both buildings.
[Court File No. 14, p. 14]. Thus, defendant complains both that Agent Corbitt trespassed on his property and he also complains that details about the outbuilding on the property were omitted from Agent Walters' affidavit.
Under the Supreme Court's open fields doctrine, "[t]he rather typical presence offences, closed or locked gates, and "No Trespassing" signs on an otherwise open field has no constitutional import" as "the presence of a fence or gate or a "No Trespassing" sign does not engender a reasonable expectation of privacy for Fourth Amendment purposes." United States v. Rapanos, 115 F.3d 367, 372 (6th Cir.), cert. denied, 522 U.S. 917 (1997). Moreover, where as in this situation, Agent Corbitt turned around and exited the defendant's property more than 500 feet away from his residence, which was located approximately 117 feet away from the outbuilding, there has been no showing that she actually observed the details of the outbuilding which were alleged to have been omitted from Agent Walters' affidavit; and, at that distance from the residence she was not within the curtilage of the property. The Supreme Court has "described the curtilage of a dwelling as `the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life.'"" Dow Chemical Co. v. United States, 476 U.S. 227, 236, 106 S.Ct. 1819, 1825-26 (1986) (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524 (1886)). In this instance, not only was the gravel turnaround where Agent Corbitt changed direction in order to leave the defendants property located more than 500 feet from the residence, but Agent Corbitt testified that the gravel turnaround was actually another driveway leading to the Seventh Day Adventist Parsonage on the adjacent property. Thus, at the point she turned around and exited the defendant's property at the request of his wife, Agent Corbitt had not penetrated the curtilage surrounding the defendant's residence.
Thus, in this case, the defendant has failed to satisfy his heavy burden of proof in challenging the veracity of the statements in Agent Walters' affidavit and in showing that alleged false statements were made intentionally or with reckless disregard for the truth. Rather, the defendant essentially complains that in investigating and corroborating the anonymous tip, Agent Walters did not go far enough to find certain information which he alleges would have negated probable cause.
However, "Franks recognizes that information an affiant reports may not ultimately be accurate, and is willing to tolerate such a result at that early stage of the process, so long as the affiant believed the accuracy of the statement at the time it was made." Mays, 134 F.3d at 815 (quoting Franks, 438 U.S. at 165, 98 S.Ct. at 2681). Accordingly, the Court finds defendant is not entitled to a Franks hearing, although, in effect, the defendant has had such a hearing during the course of this Court's having heard several hours of testimony presented by the defendant.
II. Probable Cause
Defendant Jarrell asserts the warrant permitting the search of his home at 5432 McDonald Road, McDonald, Tennessee, was not based upon probable cause to believe that illegal activity was, or had been, occurring at the residence.
Here, the affidavit for the May 20, 2003, search warrant establishes probable cause. "Probable cause for the issuance of a search warrant is defined in terms of whether the affidavit sets out facts and circumstances which indicate `a fair probability that evidence of a crime will be located on the premises of the proposed search.'" United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993) (citing United States v. Bowling, 900 F.2d 926, 930 (6th Cir.), cert. denied, 498 U.S. 837 (1990), quoting United States v. Algie, 721 F.2d 1039, 1041 (6th Cir. 1983)). "A magistrate's probable cause determination should be made in `realistic and commonsense fashion,' and reviewed in the same manner." Finch, 998 F.2d at 352 (quoting Algie, 721 F.2d at 1041). in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983), the "Court adopted a `totality-of-the circumstances approach' to determine the existence of probable cause, noting that probable cause is a `practical nontechnical conception' that deals with `the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.'" United States v. Pelham, 801 F.2d 875, 877 (6th Cir. 1986), cert. denied, 479 U.S. 1092 (1987) (quoting Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328-29 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311 (1949)).
In his motion and supporting memorandum, defendant argues that Agent Walters' affidavit is insufficient because it, particularly the information set forth in paragraph 4 of the affidavit, is based upon a "tip" from an anonymous informant. However, "information received from an informant whose reliability is not established may be sufficient to create probable cause when there is some independent corroboration by the police of the informants information." United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000).
In this action, the tip from the anonymous informant, along with the other investigation and corroboration by the agents, establishes probable cause. Although the defendant complains in his brief of actions which were not taken by the agents which would have confirmed or dispelled their suspicions, "[t]he affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added." United States v. Alien, 211 F.3d 970, 975 (6th Cir.), cert. denied, 531 U.S. 907 (2000). The affidavit in this case sets forth the tip provided by the anonymous informant as well as numerous other items of information and corroboration gleaned by the agents including the May 16, 2003 flight from the Chattanooga airport, the presence of Ronald Barnes' vehicle at defendant's residence, as well as the utility records which provided further corroboration for the anonymous informants tip.
Furthermore, paragraph 3 of Agent Walters' affidavit, also informed the magistrate that defendant had been growing marijuana in 1999, and had previously pled guilty to manufacturing marijuana in federal court. Further, paragraph 8 of Agent Walters' affidavit also informed the magistrate that within the previous two years, the defendant's name had appeared on lists of persons that ordered marijuana growing equipment. During the September 16, 2003 suppression hearing, Agent Walters testified that based upon his experience these lists, which were compiled by the HIDTA-high intensity drug trafficking area — attorneys were highly accurate and had provided the basis for other searches prior to the May 20, 2003 search at issue in this case. Agent Walters testified that prior lo Ihe May 20, 2003 search, he was aware of al least 5 searches which had been performed as a result of Ihe HIDTA lisl and that, lo his knowledge, all 5 searches had resulted in Ihe seizure of marijuana. Having heard Agent Watters' testimony al the September 16, 2003 suppression hearing and having had the opportunity lo observe his demeanor, the Court finds that Agent Watters' testimony was highly credible.
Lastly, defendant complains the information provided by the anonymous tipsier was stale and, therefore, did not establish probable cause. However, in paragraph 4 of his affidavit, Agent Watters went to some length to note that he was unaware of the specific lime frame when the anonymous tipsier had been on defendants property. A staleness determination is nol based upon a specific lime frame, but should be based upon numerous factors such as the nature of the crime, whether the criminal has a stable locale, whether the thing to be seized is perishable or of enduring value, and whether the place to be searched is a chance location or a secure base for the suspect. United States v. Greene, 250 F.3d 471, 480-81 (6th Cir. 2001).
Here, Agent Watters presented information that the defendant had been growing marijuana in 1999 as well as some indication that defendant had ordered equipment for growing marijuana in 2001, 2002 and 2003. Furthermore, the information provided by the anonymous tipster, installation of underground utilities and a marijuana growing operation, defeated a claim of staleness, because the presence of underground utilities are enduring and indicate a secure base. Likewise, a marijuana growing operation also indicates a secure base as well as a degree of continuity to the criminal violation. In addition, once installed, underground utilities are of enduring value as they are not easily subject to removal or modification. Thus, the Court finds that the defendant's assertion that the information in Agent Watters' affidavit was stale is without merit.
"[T]he traditional standard for review of an issuing magistrate's probable-cause determination has been than so long as the magistrate had a `substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Pelham, 801 F.2d at 877-78 (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736 (1960)). In the instant action, there was more than sufficient evidence set forth in Agent Walters' affidavit to allow the magistrate judge to draw a reasonable inference that evidence of criminal activity would be found at defendant's home.
III. Leon Good Faith Exception
In its response to defendant's motion to suppress and request for a Franks hearing, the government argues that "even if this Court should find that the affidavit was deficient under the Fourth Amendment, and subsequently that there was no probable cause for the search, . . . the search would still be valid under the good-faith exception found in United States v. Lean, 468 U.S. 897 (1984). [Court File No. 16].
As set forth in detail above, the Court has concluded that Agent Walters' affidavit was not deficient and that there was more than ample probable cause for the search of defendant Jarrell's residence. However, assuming arguendo that the Court had found that the affidavit was lacking probable cause, it clearly is not "so lacking" in probable cause as to render a good-faith reliance on the search warrant issued pursuant to the affidavit unreasonable. United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998).
IV. Conclusion
For the reasons stated above, it is ORDERED that (1) the defendant's motion to suppress [Court File No. 14] is DENIED; and (2) the defendant's request for a. Franks hearing [Court File No. 14] is DENIED.