Opinion
Case No. 00-40077-01-RDR
October 20, 2000
MEMORANDUM AND ORDER
The defendant is charged in a three-count indictment. He is charged with possession with intent to distribute approximately 10 grams of methamphetamine in violation of 21 U.S.C. § 841(a), attempted manufacture of methamphetamine in violation of 21 U.S.C. § 841(a), and possession of a listed chemical with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1).
The defendant seeks to suppress evidence obtained from the search of his vehicle on March 26, 2000, and the searches of his residences in Russell, Kansas and Lorraine, Kansas on March 26, 27 and 29, 2000. The court has conducted a hearing on this motion and is now prepared to rule.
FINDINGS OF FACT
1. On March 26, 2000, Russell County sheriff's deputy Kelly Schneider observed a blue van traveling east on Interstate 70. He saw the van travel from the driving lane onto the shoulder three to four times while he followed the van for two miles. Deputy Schneider was concerned that the driver of the vehicle might be intoxicated. He activated his emergency lights and pulled the van over at 1:19 p.m.
2. Deputy Schneider approached the blue van and asked the driver for his license and registration. He told the driver that he stopped him for weaving. He asked the driver if he had been drinking. The driver responded that he had not. The driver said his driving had been affected by the wind. Deputy Schneider smelled no alcohol.
3. Deputy Schneider took the license and registration and returned to his patrol car. The license identified the driver as Timothy Lloyd. Deputy Schneider wrote Mr. Lloyd a warning ticket for failure to maintain a single lane of traffic.
4. Deputy Schneider returned to the van and asked Mr. Lloyd to step to the rear of the van. He gave Mr. Lloyd the warning ticket and again asked him if he had been drinking. Mr. Lloyd again responded in the negative. Deputy Schneider then returned Mr. Lloyd's driver's license and registration. He then asked Mr. Lloyd if he could ask him a few questions. In doing so, Deputy Schneider used a normal speaking voice and did not attempt to intimidate or coerce Mr. Lloyd. Mr. Lloyd said, "Yes." Deputy Schneider then explained that I-70 was used frequently for the transportation of illegal narcotics. He then asked Mr. Lloyd if he was carrying any narcotics in his van. Mr. Lloyd responded, "No." Deputy Schneider then asked for permission to search the van. Mr. Lloyd indicated that he did not want his van searched. Deputy Schneider then asked Mr. Lloyd to step to the front of the van. He also asked the passenger in the van to exit the van and to step to the front of the van. Deputy Schneider told Mr. Lloyd that he was going to have his narcotics dog run around the van. Mr. Lloyd and his passenger were not free to leave at that time.
5. In the months prior to the stop, Deputy Schneider had received information that Timothy Lloyd was engaged in the manufacture and distribution of methamphetamine. He, however, candidly admitted that he had no idea that the van contained any illegal narcotics at the time of the stop. He acknowledged that neither Mr. Lloyd's statements nor his actions had raised any suspicions.
6. Deputy Schneider ran his dog around the exterior of the van. The dog alerted to the passenger's side door and the driver's side door. Deputy Schneider returned the dog to his car. He told Mr. Lloyd that he was going to search the van. Deputy Schneider found methamphetamine, marijuana and other drug paraphernalia during the search of the van. He than placed Mr. Lloyd and the passenger, Denise Freeman, under arrest.
7. Following the arrests, Deputy Schneider prepared affidavits to obtain search warrants for the defendant's residences in Russell, Kansas and Lorraine, Kansas. In addition to the information concerning the traffic stop, each of the affidavits contained the following information under the heading, "Probable Cause":
On 12/17/99, I received the following information from Ellsworth County Sheriff Tracy Ploutz. Sheriff Ploutz has a Confidential Informant that told him that Steve Shute from Ellsworth is going to Tim Lloyd's house in Russell and purchasing a quantity of methamphetamine from Lloyd. Shute is driving a white Ford pickup. According to Lloyd's driver's license, he lives at 1705 N. Main, Russell KS 67665. Lloyd is possibly living with his girlfriend at this residence.
Around the first part of February 2000, Sheriff Fletcher received a phone call from Fred Deibes, Great Bend parole office. Deibes interviewed a Confidential Informant that stated Tim Lloyd was a methamphetamine cook and had a large quantity of ephedrine and money in his house. According to this Confidential Informant, Lloyd has a quantity of ephedrine across the Oklahoma border.
On 03/05/00, KBI Special Agent Tony Weingartner and I interviewed Steve Shute at the Ellsworth County Jail. Shute provided the following information: Tim Lloyd runs the Last Chance BBQ in Russell. Lloyd's phone number is 785-483-2880 and Cellular phone number is 785-483-0463. Lloyd drives two Ford Econoline vans, one is white and the other is blue. Lloyd is using Lithium metal and Anhydrous Ammonia to cook his methamphetamine. Lloyd travels to Oklahoma to purchase ephedrine and usually purchases between $3000-$5000 worth of ephedrine. Lloyd has two subjects who distribute 1 ounce of methamphetamine per week for him. Lloyd has a house in Lorraine KS. Lloyd often goes to a farm located west of Lorraine and does his cook there. Shute refers to the farm as the Milk Shack. Shute knows that Lloyd often carries a 9mm pistol with him.
On 03/24/00, KBI Special Agent Tim Holmes and I interviewed Kevin Peterson at the Russell County Sheriff's Department. Peterson provided the following information: Peterson first met Tim Lloyd while they were in prison in Norton. Lloyd has been a methamphetamine cook for quite some time. Approximately 3 months ago Peterson drove to Enid, Oklahoma with Lloyd. Peterson dropped Lloyd off at K-Mart in Enid, while Peterson drove to a location where he met with another subject and purchased several cases of ephedrine. Peterson used $6000.00 of Lloyd's money to purchase the ephedrine. Peterson has seen Lloyd cook methamphetamine in his house and in Lloyd's trailer house that is used to BBQ in. Peterson knows that Lloyd has just purchased a house in Lorraine KS. Peterson knows that Lloyd often drives his vans out in the county, where he cooks the methamphetamine. Peterson also knows that Lloyd carries the methamphetamine and cash in a blue money bag. According to Peterson, Lloyd also purchases large quantities of marijuana from a subject in Manhattan.
8. Deputy Schneider took the affidavits to a magistrate. The magistrate authorized the searches of the two residences. The subsequent search of the residence in Russell revealed nothing. The search of the residence in Lorraine revealed a number of items associated with the manufacture of methamphetamine. Following the search of the Lorraine residence, Deputy Schneider prepared another affidavit seeking a second search of the Russell residence. The search warrant was sought specifically for computer hardware and software. The affidavit contained the same information as the previous affidavits. The magistrate authorized another search of the Russell residence. On March 29, 2000, another search of the Russell residence was conducted and a computer was seized.
CONCLUSIONS OF LAW
1. The defendant initially seeks to suppress evidence that was seized on March 26, 2000 from his vehicle. He contends that (1) Deputy Schneider did not have probable cause to stop the defendant for failure to maintain a single lane of travel; and (2) Deputy Schneider's continued detention of him after he issued the warning ticket violated his Fourth Amendment rights because the officer did not have reasonable suspicion to justify the detention. The government responds that (1) Deputy Schneider lawfully stopped the defendant for a traffic violation; and (2) the defendant was not detained after the issuance of the traffic ticket; rather the encounter became consensual. In the alternative, the government argues that if the defendant was detained, then the detention was supported by reasonable suspicion based upon the information that Deputy Schneider had about the defendant's previous involvement in drug activities.
2. A traffic stop is a seizure coming within the purview of the Fourth Amendment to the United States Constitution. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). A traffic stop is proper if the officer has probable cause to believe a traffic law has been violated, regardless of pretext or ulterior motive on the part of the officer. United States v. Whren, 517 U.S. 806, 813 (1996).
3. During a routine traffic stop, the detaining officer is permitted to ask such questions, examine such documentation, and run such computer verifications as necessary to determine that the driver has a valid license and is entitled to operate the vehicle. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 519 U.S. 985 (1996). The officer may detain the driver and his vehicle as long as reasonably necessary to make these determinations and to issue a citation or warning. United States v. Martinez, 983 F.2d 968, 974 (10th Cir. 1992), cert. denied, 508 U.S. 922 (1993). "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." United States v. Lee, 73 F.3d 1034, 1038 (10th Cir. 1996).
4. An investigative detention may be permissibly expanded beyond the reason for its inception if the person stopped consents to that expansion. United States v. McKneely, 6 F.3d 1447, 1450 (10th Cir. 1993). Absent valid consent, the scope or duration of an investigative detention may be expanded beyond its initial purpose only if the detaining officer at the time of the detention has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir. 1995) (quoting United States v. Bloom, 975 F.2d 1447, 1456 (10th Cir. 1992)). Whether the particular facts known to the officer amount to an objective and particularized basis for reasonable suspicion of criminal activity is determined in light of the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). The failure to consent to a search cannot form any part of the basis for reasonable suspicion. United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998).
5. The defendant contends that there was no probable cause to believe that a violation of the motor vehicle laws had occurred when he was stopped by Deputy Schneider. We disagree. The court is persuaded that the stop of the defendant on March 26, 2000 for a traffic violation was proper. The court found Deputy Schneider's testimony on this issue credible.
6. The continued detention of the defendant following the issuance of the warning ticket presents a more troubling matter. The court is not persuaded that the subsequent detention was consensual as suggested by the government. There is nothing to indicate that the defendant agreed to the continued detention. He was told by Deputy Schneider to move to the front of the vehicle because he was going to run his drug dog around it. This type of directive does not suggest consent by the defendant. Further, there was no effort by Deputy Schneider to explain to the defendant that he was free to leave. In fact, Deputy Schneider clearly testified that he did not believe the defendant was free to leave. Accordingly, we do not find any consent by the defendant to the continued detention.
7. The court must next consider whether Deputy Schneider had reasonable suspicion to detain the defendant. After considering the totality of the circumstances, the court does not find them sufficient to support a finding that reasonable suspicion existed for the continued detention of the defendant. The government has pointed out that Deputy Schneider had previously received information that the defendant was involved in the manufacture and distribution of methamphetamine. This information, the government argues, provides reasonable suspicion for the further detention of the defendant after he refused to consent to the search of his vehicle. We cannot agree given the other evidence in the record. Deputy Schneider admitted that none of the defendant's statements or actions during the traffic stop caused him to be suspicious about what was in the van. Moreover, Deputy Schneider openly admitted that he had no idea what was in the van prior to the search. Given these responses, we are not persuaded that the other information would provide reasonable suspicion for the continued detention of the defendant. Deputy Schneider lacked specific and articulable facts to reasonably warrant shifting the focus of his intrusion from the traffic stop to a search for illegal drugs. Accordingly, because the defendant and his van were detained without reasonable suspicion, the evidence discovered in his van must be suppressed.
8. As correctly pointed out by the defendant, these circumstances are similar to those found in United States v. Wood, 106 F.3d 942 (10th Cir. 1997). In Wood, the Tenth Circuit suppressed evidence found in Wood's car after finding that Wood had been illegally detained for a canine search of his car. 106 F.3d at 948. The court noted that after "stripping away the factors which must be disregarded because they are innocuous," the only factors that were left were the defendant's nervousness and his prior narcotics history. Id. The court found these factors of limited significance in determining whether reasonable suspicion existed. Id. In comparing this case with Wood, we find that the factors justifying a determination of reasonable suspicion in Wood exceed those found in this case. There, the district court had noted "unusual travel plans," inconsistencies in information, and the presence of open maps and remnants from fast-food restaurants as other factors giving rise to a finding of reasonable suspicion. Although those factors were ultimately rejected by the Tenth Circuit, they were more significant than those present in this case. The information that Deputy Schneider had concerning the drug activities of the defendant was akin to the information that the officers had in Wood concerning the driver's prior narcotics history. This information was deemed by the Tenth Circuit in Wood as insufficient to justify a finding of reasonable suspicion. We are persuaded that a similar finding must be made here, particularly in light of Deputy Schneider's testimony that he had no idea what was in the van.
9. With this decision, we turn to the searches of the defendant's residences. The defendant contends that, without the information from the traffic stop, the search warrants for the residences lacked probable cause because (1) the information provided by the informants, Shute and Peterson, was stale; (2) the veracity and reliability of the informants, Shute and Peterson, are not stated; (3) the information provided by the informants, Shute and Peterson, was not verified or corroborated; (4) the information provided by the informants, Shute and Peterson, does not state a source of knowledge; and (5) the information provided by the informants, Shute and Peterson, does not establish a nexus to either of the defendant's residences. The government contends that the affidavits as submitted, even with the information relating to the traffic stop excised, provide probable cause to search the residences. The government argues that the information was not stale and that there was sufficient indicia of reliability. The government further argues that if the search warrants are not supported by probable cause, then the good faith exception of United States v. Leon, 468 U.S. 897 (1984) would apply.
10. The Fourth Amendment requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend IV. In determining whether probable cause supported the issuance of a search warrant, the court must give "great deference" to the decision of the issuing magistrate or judge. United States v. Williams, 45 F.3d 1481, 1485 (10th Cir. 1995). We ask only whether the issuing magistrate or judge had a "substantial basis" for finding probable cause:
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 . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal ellipses, quotations, and brackets omitted). In our review, we may disregard allegedly tainted material in the affidavit and ask whether sufficient facts remain to establish probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); United States v. Knapp, 1 F.3d 1026, 1028-29 (10th Cir. 1993).
11. Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched. United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986). The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on "the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." Id. at 984.
12. An informant's credibility or reliability and basis of knowledge is determined under a flexible totality of circumstances standard. United States v. Smith, 63 F.3d 956, 961 (10th Cir. 1995), vacated on other grounds, 516 U.S. 1105 (1996). "Veracity and basis of knowledge are not, however, rigid and immovable requirements in the finding of probable cause. A deficiency in one element may be compensated for `by a strong showing as to the other, or by some other indicia of reliability.'" United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992). Consequently, the affiant need not declare the informant's reliability when the informant's statements are corroborated by extrinsic information. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992); see Smith, 63 F.3d at 961.
13. Having carefully reviewed the totality of the information provided to the magistrate, the court finds that probable cause existed for the issuance of the search warrants. Although the affidavits fail to address the reliability of the informants, we are persuaded that there is a sufficient indicia of reliability. We note that the information of the informants corroborates each other in a number of significant aspects. See United States v. Lee, 173 F.3d 1258, 1266 (10th Cir. 1999) (consistency between reports of two informants helps to validate both accounts). The court notes the following examples of corroboration: (1) three of the informants state that the defendant cooks methamphetamine on an ongoing basis; (2) three of the informants state that the defendant purchases ephedrine in Oklahoma; (3) two of the informants agree generally on the amount of ephedrine purchased by the defendant in Oklahoma; (4) two of the informants state generally where the defendant cooks his methamphetamine; and (5) two of the informants state that defendant is in the business of selling methamphetamine. We add to this information the fact that several of the informants provided specific and detailed factual information about the defendant. These details are indicative of access to the defendant's illegal activities and demonstrative of a special familiarity and knowledge of the defendant's operating methods. Finally, we note that at least one of the informants provides eyewitness information to and participation in the criminal activities of the defendant. See Gates, 462 U.S. at 234 (even if there is some doubt as to an informant's credibility, "his explicit and detailed description of alleged wrongdoing . . . observed firsthand, entitles his tip to greater weight than might otherwise be the case"). In sum, given the totality of this information, we find that these statements are sufficient to support a finding of probable cause.
14. Moreover, the court is not persuaded that the affidavits fail for staleness. The information provided by the informants suggested ongoing, continuous criminal activity by the defendant. These circumstances suggest that staleness is not a problem here. See United States v. Myers, 106 F.3d 936, 939 (10th Cir.) (passage of time did not render information stale where marijuana growing operation was "ongoing and continuous"), cert. denied, 520 U.S. 1270 (1997); United States v. Miles, 772 F.2d 613, 616 (10th Cir. 1985) ("[P]assage of time becomes less significant when the criminal offense is continuous.").
15. Finally, we are convinced that the magistrate had a substantial basis to conclude that there was a nexus between the evidence sought and the defendant's residences in Russell and Lorraine. The evidence to support probable cause must be particularized to the defendant for which the warrant is being sought. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). It is not necessary, however, that the affidavit indicate that the evidence sought will undoubtedly be found in the place to be searched. United States v. Johnson, 645 F.2d 865, 867-68, (10th Cir.), cert. denied, 454 U.S. 866 (1981). Rather, it is only necessary that the facts and circumstances described in the affidavit warrant a man of reasonable caution to believe that such evidence is located at the premises or location to be searched. Id. The information provided by the informants supported a conclusion that methamphetamine and the accompanying tools of the methamphetamine trade would be found at the defendant's residence. In addition, the statements of Deputy Schneider based upon his training and experience concerning the usual activities of drug dealers provide support for this conclusion. See United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997) ("[C]ourts often rely on the opinion of police officers as to where contraband may be kept."), cert. denied, 523 U.S. 1079 (1998).
16. Thus, the information provided to the magistrate, with the information concerning the traffic stop excised, was sufficient to support a finding of probable cause. Nor was the information provided stale. In any event, the court is satisfied that the evidence from the search warrants is admissible under the good faith exception recognized by the Supreme Court in Leon.
17. The court shall grant the defendant's motion to suppress in part and deny it in part. The court shall suppress all evidence seized from the defendant's van on March 26, 2000. The remainder of the motion shall be denied.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Doc. # 13) be hereby granted in part and denied in part. The court hereby suppresses all evidence seized from the defendant's van on March 26, 2000. The remainder of the motion shall be denied.
IT IS SO ORDERED.