Opinion
No. 1:04-cr-137.
December 1, 2004
MEMORANDUM AND ORDER
The defendant, Bruce Edward Lawson ("Lawson"), moves this Court to suppress from use at trial evidence seized during a search of his home on September 19, 2003. [Court File No. 18, 22]. The government filed a response [Court File No. 23], and the Court held an evidentiary hearing on November 23, 2004, on this motion. Afterward, Lawson filed a post-hearing brief on his motion to suppress. [Court File No. 26]. This memorandum and order embodies the Court's findings of fact and conclusions of law.
I. Facts
Late in the evening of September 18, 2003, Cleveland, Tennessee, police officers were called to an address on Ladd Springs Road to deal with a domestic disturbance. The defendant, who had been in an altercation with his ex-wife, Peggy Lawson, was arrested at the scene. During and after the arrest Ms. Lawson advised the arresting officers that there was a lot of stolen personal property there and that the defendant had stolen it. The defendant hastened to advise Ms. Lawson that she could be in trouble for telling this to the officers, because the stolen goods were located on her real property. One of the things pointed out by Ms. Lawson as being stolen was a Harley Davidson automobile trailer. The officers verified on NCIC that the trailer was indeed stolen.
The defendant was taken to the Bradley County jail. Ms. Lawson did not want the defendant's vehicle to remain on her property, so the police had it towed. Since the defendant mentioned that he may have had some kind of altercation with his girlfriend, a Ms. Staton, the police went to check on her well being at the defendant's residence on Bromley Road, where the defendant lived in a mobile home. As they approached the mobile home, they knocked on the door, but no one answered. They then looked through the door (double glass sliding doors) and saw what they determined to be stolen goods inside the door. These goods included some carpeting and a shop vac which matched the description of items taken during a burglary only hours earlier. The officers had a sample of the stolen carpet and it matched the carpeting observed in the defendant's mobile home.
Armed with the above information, as well as other information, Detective Bill Coultry, of the Bradley County Sheriff's Department, obtained a search warrant from a state judge. Among the other information contained in Coultry's affidavit for the warrant was the following: an automobile matching the description of defendant's automobile and a truck matching the description of defendant's truck had been observed at the scene of a burglary three days earlier.
The search warrant was executed at about 11:40 A.M on the morning of September 19, 2003. Officers found a large amount of stolen goods — enough to solve approximately eighty two (82) home burglaries that had occurred in the Bradley County area. During the search the officers also found several pounds of marijuana and a shotgun. Detective Coultry knew that defendant was a convicted felon when the shotgun was seized.
II. Analysis
At the hearing Lawson raised two grounds for suppressing from use at trial the evidence seized during the search of his mobile home: first, the search warrant is overbroad; and second, the affidavit for the search warrant contains false information. In his motion to suppress [Court File No. 18] and the supplement thereto [Court File No. 22] filed with the Court, Lawson raises several other grounds for suppression not argued at the hearing: the search of Lawson's residence began before the search warrant was obtained; officers searched Lawson's car on September 18, 2003, without probable cause and without any applicable exception to the warrant requirement; a copy of the affidavit supporting the search warrant was not left at Lawson's residence; and, the information that the Harley Davidson trailer was stolen was two months old and therefore unconstitutionally stale.
Before addressing any of the grounds for suppression raised by Lawson, the Court first notes that the officers constitutionally obtained the information creating probable cause for the search warrant. The police officers' basis for probable cause included information that the officers obtained while on Lawson's property without a warrant. Specifically, after arresting Lawson for a domestic disturbance on September 18, 2003, and learning that he may have harmed his girlfriend earlier in the day, the police officers went to Lawson's home to check on his girlfriend. In this effort, the police knocked on Lawson's door — two sliding glass doors. When no one answered the officers looked through the glass doors and saw two items of stolen property, a bundle of carpet and a shop vac. This information provided the necessary probable cause for the search warrant.
When the officers entered Lawson's property to check on his girlfriend, they saw two stolen items of persona property in plain view through the glass doors. The plain view exception is applicable, however, only if the officers were lawfully present when they saw the contraband in plain view. Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004); (quoting United States v. Bishop, 338 F.3d 623, 626 (6th Cir. 2003)). Accordingly, the information was lawfully obtained in this case so long as the officers were lawfully present at Lawson's glass doors.
A. Lawfulness of Officers Presence at Lawson's Door
The Fourth Amendment protection does extend to the curtilage of a home. Oliver v. United States, 466 U.S. 170, 180-81 (1984); United States v. Dunn, 480 U.S. 294, 300 (1987). The curtilage is defined as the area outside the house which harbors "the intimate activity associated with the sanctity of a man's home and privacies of his life." Oliver, 466 U.S. at 180-81. In Dunn, the Supreme Court enunciated the following four factors for defining the extent of a home's curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to the which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Dunn, 480 U.S. at 301.
Applying these factors to the instant case, the Court finds that the area in front of Lawson's sliding glass doors is not within the curtilage of his home. The first factor does weigh in the defendant's favor: the area outside the doors is obviously in close proximity to the home. However, the other three factors weigh strongly against Lawson. The area outside the doors is not included within any enclosure, such as a fence. Further, Lawson's "No Trespassing" sign neither creates an enclosure nor confers curtilage status on this area. See United States v. Elkins, 300 F.3d 638, 654 (6th Cir. 2002). Moreover, based on the testimony at the hearing, the glass doors seem to serve as Lawson's front door; hence, the area outside these doors is where Lawson receives guests and any unsolicited inquiries from police, salespeople, pollsters, and the like. Finally, Lawson has taken no actions to protect the area outside the glass doors from observation by people passing by on the street. Based on this evidence, the Court finds that the area outside Lawson's glass doors is not within the curtilage of his home and, consequently, is not constitutionally protected.
Even if the area outside Lawson's glass doors is within the curtilage of his home and constitutionally protected, the police officers still did not violate Lawson's Fourth Amendment rights. For "law enforcement officials may encroach upon the curtilage of a home for the purpose of asking questions of the occupants." United States v. Hopper, 58 Fed. Appx. 619, 623, 2003 WL 152316, at *3 (6th Cir. Jan. 21, 2003) (citing United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)); accord Rogers v. Pendleton, 249 F.3d 279, 289 (4th Cir. 2001); United States v. Evans, 27 F.3d 1219, 1229 (7th Cir. 1994). In the instant case, the officers did exactly that: After arresting Lawson for domestic disturbance with his ex-wife and learning that he may have harmed his girlfriend earlier in the day, the officers went to Lawson's property and knocked on the door to check on the girlfriend's well-being. The officers' presence in this regard did not violate Lawson's Fourth Amendment rights.
Because the police officers were lawfully present at Lawson's glass doors and saw the stolen items in plain view, the Court finds that the officers lawfully obtained the information supporting the search warrant. Accordingly, the Court turns to address each of Lawson's grounds for suppressing the seized evidence.
B. Breadth of the Search Warrant
Lawson contends that the search warrant is unconstitutionally overbroad because it does not describe with particularity the items to be searched for and seized. The Fourth Amendment requires warrants to "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "A general order to explore and rummage through a person's belongings is not permitted. The warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized." United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991) (internal quotation omitted). A "search warrant may be construed with reference to a supporting affidavit if the affidavit accompanies the warrant and the warrant incorporates the affidavit by reference." Id. at 1024. Accordingly, an otherwise invalid search warrant can be saved by an incorporated and accompanying affidavit. Id.; accord United States v. Watkins, 179 F.3d 489, 494 (6th Cir. 1999) (citing United States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1989)); United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998).
In the instant case, as Lawson argues, the warrant merely describes the items to be searched for and seized as "stolen property." Such an overbroad description does not satisfy the particularity requirement. However, the search warrant is saved by an incorporated and accompanying affidavit which particularly describes the stolen property believed to be in Lawson's home. The search warrant explicitly states that an "affidavit is (Attached (sic) hereto and specifically incorporated herein by reference for its contents and descriptions as if set out verbatim." This affidavit lists the following as stolen property believed to be in Lawson's home: a roll of carpet, white bookshelves, "gray colored carpet, ten kitchen cabinets, white kitchen sink, delta faucet, three foot fluorescent light, and a range hood." Based on the specificity of this incorporated and attached affidavit, the Court finds that the otherwise overbroad search warrant satisfies the particularity requirement of the Fourth Amendment.
C. False Information in the Affidavit
Lawson also contends that the affidavit underlying the search warrant contains information that does not comport with a police report of a burglary. Specifically, the affidavit indicates that one of the cars seen at a burglary was a "white four door Grand Prix or Grand Am." In contrast, the police report for this burglary identifies the same car as a "newer, white mid-size car" and does not specify the make or model of the vehicle. Lawson's contention, in essence, is that the affidavit contains false information.
Arguments that an affidavit contains false information are governed by Franks v. Delaware, 438 U.S. 154 (1978). Under Franks
the hearing court must strike from the warrant affidavit statements that the defendant can prove by a preponderance of the evidence to be both (a) materially false and (b) made with reckless or intentional disregard to their falsity. If the redacted affidavit, purged of reckless and materially false statements, no longer establishes probable cause, then the court must hold the resulting search warrant invalid.United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (citing Franks, 438 U.S. at 155-56).
In the instant case, Detective Coultry claims that the particular statements in the affidavit regarding the car seen at a prior burglary are not false. Detective Coultry testified that the affidavit statements are not based on the police report containing a general description of the vehicle. Rather, the affidavit statements are based on a subsequent conversation with the same witness to the burglary, wherein the witness identified the make and model of the car.
In contrast, Lawson contends that the statements in the affidavit are false. At the hearing, Lawson attempted to contradict Detective Coultry's explanation by offering the testimony of the particular witness who provided the description of the car at the burglary. Despite subpoenaing the witness, the witness failed to attend the hearing. Lawson proffered that the witness would testify to never providing the specific description contained in the affidavit, thereby contradicting Lawson's explanation. Lawson further asked to re-open the proof should the Court deem it necessary to hear this witness' testimony. The Court agreed, stating that it would re-open the proof if this witness' testimony became crucial.
The Court now finds that the witness' testimony is not necessary. Even if the Court were to find, based on this testimony, that the affidavit contains false information, the search warrant would still be valid. For, under Franks, a search warrant is invalid only "[i]f the redacted affidavit, purged of reckless and materially false statements, no longer establishes probable cause." Elkins, 300 F.3d at 649 (citing Franks, 438 U.S. at 155-56).
Here, the search warrant is not invalid because the affidavit still establishes probable cause even without the allegedly false information. In particular, the redacted affidavit still contains the following information: officers confirmed stolen a Harley Davidson trailer in Lawson's possession the night before the affidavit was drafted; officers found at Lawson's residence a truck matching the description of a truck seen at a burglary three days earlier; and most importantly, officers saw personal property inside Lawson's residence matching the description of items reported stolen only hours earlier. The Court finds that this information alone establishes probable cause to search Lawson's residence. Consequently, the search warrant is still valid.
D. Failure to Leave Affidavit with Lawson
Lawson also argues that the seized evidence should be suppressed because the officers failed to leave a copy of the affidavit underlying the search warrant at Lawson's premises under FEDERAL RULES OF CRIMINAL PROCEDURE Rule 41. This argument fails for numerous reasons.
First, Rule 41 is inapplicable in the instant case. For, "`by its terms Rule 41 does not apply in a case where no federal officers are involved.'" United States v. Bennett, 170 F.3d 632, 635 (6th Cir. 1999) (quoting United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992)). In the instant case, no federal officers were involved in the investigation or search of Lawson's residence; rather, state officers conducted the entire investigation and search. Indeed, Lawson does not even contend that federal officers were involved in the search. Consequently, Rule 41 does not even apply to this case.
Second, even if Rule 41 applies to this case, Rule 41(f) does not require officers to leave at the premises a copy of the affidavit supporting the search warrant. Rule 41(f) requires the officer executing the warrant to "leave a copy of the warrant and receipt at the place where the officer took the property." FED. R. CRIM. P. 41(f)(3)(B). This rule merely requires officers to leave a copy of the warrant and a receipt for the property taken. The rule does not, however, require officers to leave a copy of the affidavit supporting the search warrant.
Finally, even if Rule 41(f) requires officers to leave a copy of the affidavit at the premises, the officers failure to do so in this case does not necessitate suppression of the evidence. A violation of Rule 41(f), such as failure to leave at the premises an attachment to the warrant, does not mandate suppression of the evidence. Frisby v. United States, 79 F.3d 29, 31-32 (6th Cir. 1996). In construing Rule 41(d), the precursor to Rule 41(f), the Sixth Circuit recognized that, "although the procedural steps enumerated in Rule 41(d) are important and should not be disregarded, they are ministerial and `[a]bsent a showing of prejudice, irregularities in these procedures do not void an otherwise valid search.'" Id. at 32 (quoting United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971)). In the instant case, the officers' failure to leave a copy of the affidavit did not prejudice Lawson in any way: the search would have occurred the same whether a copy of the affidavit was left at Lawson's premises or not. Other than this technical violation, the search of Lawson's premises was valid. Accordingly, the officers failure to leave a copy of the affidavit does not warrant suppression of the seized evidence.
E. Search of Lawson's Home Before Issuance of the Search Warrant
In his brief Lawson also argues that the search of Lawson's home was conducted, or at least initiated, before the issuance of the search warrant. However, the evidence adduced at the suppression hearing belies Lawson's contention. At the suppression hearing, the two Bradley County detectives responsible for securing the warrant testified that no police officer began searching Lawson's home until they jointly arrived with the search warrant. Given this testimony, the Court finds that the search of Lawson's home did not begin until the search warrant was properly issued.
F. Search of Lawson's Car
In his brief Lawson also contends that the search of his automobile on September 18, 2003, was unconstitutional because there was no applicable exception to the warrant requirement. This contention is irrelevant because, as Detective Coultry testified, the search of Lawson's automobile was fruitless as the police found nothing. Nonetheless, the Court disagrees with Lawson's contention, finding that an inventory search permitted the warrantless search of the car. See Colorado v. Bertine, 479 U.S. 367, 374 n. 6 (1987); United States v. Hurst, 228 F.3d 751, 758 (6th Cir. 2000).
G. Staleness of Information that Harley Davidson Trailer was Stolen
Lawson also argues that the information indicating the Harley Davidson trailer was stolen was two months old and, consequently, unconstitutionally stale. Apparently Lawson told his ex-wife the trailer was stolen twenty days before she relayed this information to the police officers. However, such a delay does not make the information stale.
The police first learned that Lawson stole the Harley Davidson trailer on the night of September 18, 2003. At that time Lawson was still in possession of the stolen property. The police quickly verified through NCIC that the trailer was indeed stolen. The next morning the police officers sought and obtained a search warrant based partially on this information. The officers learned of and verified that Lawson possessed stolen property on September 18 and acted upon that information the following morning. Such information cannot be deemed stale, and the officers' reliance upon it was proper.
Accordingly, Lawson's motion to suppress [Court File No. 18] is DENIED.
SO ORDERED.