Opinion
Case No. 00-40077-01-RDR.
May 17, 2001
MEMORANDUM AND ORDER
On May 9, 2001, the court held a hearing to consider the pending pretrial motions in this case. The purpose of this memorandum and order is to rule upon these motions.
The defendant is charged in a four-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), possession of a listed chemical with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1), and conspiracy to manufacture and distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C. § 846.
The defendant originally retained Michael Holland to represent him in this matter. Thereafter, on February 12, 2001, Dee Wampler entered an appearance for the defendant. The court allowed Mr. Holland to withdraw on March 1, 2001.
The defendant has filed the following motions: (1) motion to reconsider court's order of October 20, 2000 (filed by Mr. Wampler); (2) motion to produce (filed by Mr. Holland); and (3) motion in limine (filed by Mr. Holland). The government has filed the following motions: (1) motion for admission of 404(b) evidence; and (2) motion to reconsider court's order of December 22, 2000.
DEFENDANT'S MOTION TO RECONSIDER, IN PART, COURT'S ORDER OF OCTOBER 20, 2000
GOVERNMENT'S MOTION TO RECONSIDER COURT'S ORDER OF DECEMBER 22, 2000
On October 20, 2000, the court ruled on defendant's motion to suppress. In that order, the court granted the defendant's motion in part and denied it in part. The court suppressed the evidence seized from a search of the defendant's vehicle on March 26, 2000. The court determined that the defendant and his vehicle had been detained without reasonable suspicion. The court, however, denied defendant's motion to suppress the evidence seized from residences in Russell, Kansas and Lorraine, Kansas. The court determined that the search warrants for those residences provided probable cause for the searches even with the deletion of the information concerning the traffic stop.
Following the issuance of the October 20th order, the government filed a motion to reconsider. The government sought reconsideration of the court's order concerning the traffic stop. On December 22, 2000, the court denied the government's motion.
The defendant now seeks reconsideration of the court's order of October 20th. The defendant, relying upon the fruit of the poisonous tree argument, contends that the evidence of the searches of the residences should have been suppressed by the court. He contends that officers would not have pursued the applications for the search warrants if the traffic stop had not occurred. The defendant argues that the traffic stop triggered the search warrant application because the other events noted in the application occurred prior to March 26, 2000 (December 17, 1999; March 5, 2000; and March 24, 2000), and no action had been taken to seek a search warrant.
The government contends that the defendant's motion should be denied, asserting five reasons in support of its position. The government further argues that the court should reconsider its rulings concerning the suppression of the evidence seized during the traffic stop of March 26, 2000.
The court has undertaken a careful study of the arguments made by the parties. In doing that, the court has revisited the prior rulings made by the court on the defendant's original motion to suppress. This review was completed in order to properly consider the pending motions. A careful, detailed inspection of the record, in addition to a further review of the law, has led the court to the conclusion that an error was made in the original decision. We now believe that Deputy Schneider had reasonable suspicion to detain the defendant after the traffic stop on March 26, 2000. Accordingly, we find that the search of the defendant's van on that date was proper, and that the evidence seized from it is admissible.
The court recognizes the unusual nature of this order. We are very aware that we considered this issue in our order of October 20, 2000, and in our subsequent order of December 22, 2000. In each of those orders, we rejected the position that we now take. The court can only say that further review of the record has convinced us that we earlier reached an incorrect decision. We certainly regret this turn of events. Nevertheless, we believe that it is necessary to reach the correct result, even if the path to that decision is rocky. With that said, the court hereby vacates the orders of October 20, 2000 and December 22, 2000 on the defendant's motion to suppress. The following findings of fact and conclusions of law shall constitute the court's rulings on the defendant's motion to suppress.
Findings of Fact
1. Kelly Schneider is a sergeant with the Russell County Sheriff's Department. His duties consist of criminal investigations, particularly narcotics interdiction. He is usually charged with patrolling Interstate 70, conducting traffic stops and making further investigation if necessary.
2. 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.
3. 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.
4. 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.
5. 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, Denise Freeman, 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.
6. Prior to requesting consent to search, Deputy Schneider did not observe any suspicious activity or conduct. He noted that Mr. Lloyd did not appear nervous and was cooperative during the encounter.
7. 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 also found a blue bag containing money. He than placed Mr. Lloyd and Ms. Freeman under arrest.
8. Deputy Schneider decided to run the drug dog around the van because he had been involved in an investigation of Mr. Lloyd prior to March 26, 2000, and had learned from several sources that Mr. Lloyd was actively engaged in the methamphetamine business. Deputy Schneider had received the following information: (1) a telephone call from the Ellsworth County Sheriff on December 17, 1999 indicating that a confidential informant had told him that Steve Shute was going to Mr. Lloyd's house in Russell, Kansas and purchasing methamphetamine; (2) a telephone call from Fred Deibes who worked with the Kansas Department of Corrections indicating that a confidential informant had told him that Mr. Lloyd manufactured methamphetamine and had a large quantity of ephedrine and money in his house as well as a quantity of ephedrine stored in Oklahoma; (3) information from Steve Shute on March 5, 2000 that Mr. Lloyd (a) manufactures methamphetamine, (b) purchases ephedrine in Oklahoma, (c) recently purchased a house in Lorraine, (d) drives two Ford vans, a blue one and a white one, (e) owns a business called the Last Chance Barbeque in Russell, and (f) has two people who distribute one ounce of methamphetamine weekly for him; and (4) information from Kenneth Peterson on March 24, 2000 that Mr. Lloyd (a) manufactured methamphetamine in his barbeque trailer, (b) traveled with Peterson to Oklahoma three months ago to purchase $6,000 of ephedrine, (c) recently purchased a house in Lorraine, (d) drives his vans out in the country and to the house in Lorraine and cooks the methamphetamine, and (e) often transports methamphetamine and cash in a blue money bag. Deputy Schneider also knew, based upon his training and experience, that drug dealers carry concealed weapons, drug money and contraband on their persons and in their vehicles.
9. 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 one 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.
10. 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 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). Reasonable suspicion to support an investigatory stop is something less than probable cause and more than a hunch. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). Law enforcement officers are permitted to draw "inferences and deductions that might well elude an untrained person." United States v. Cortez, 449 U.S. 411, 418 (1981). 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 concludes that they are sufficient to support a finding that reasonable suspicion existed for the continued detention of the defendant. Prior to the stop, Deputy Schneider had substantial information about the defendant's current, on-going activities involving the manufacture and distribution of methamphetamine. This information was very specific concerning where he obtained materials for the production of methamphetamine, where he performed the cooking process, how he transported the materials, the methamphetamine and the money he received from its distribution. The information had come from individuals who were closely associated with the defendant. Moreover, the information was timely, with most of it received in the prior three months and some of it, perhaps the most important, received just two days prior to the stop. The information possessed by Deputy Schneider provided much more than a hunch that the defendant might be engaged in methamphetamine activities on March 26, 2000. The totality of the information justified a reasonable inference that the defendant was involved in narcotics activity. The information further justified a reasonable inference that the blue van the defendant was driving contained methamphetamine or methamphetamine materials and paraphernalia.
8. The court notes that Deputy Schneider testified that he did not know what was in the van at the time of the detention of Mr. Lloyd. The court is not persuaded that this testimony has little, if any, impact on the decision whether reasonable suspicion existed for the brief detention of Mr. Lloyd. "Whether a Fourth Amendment violation has occurred `turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' Scott v. United States, 436 U.S. 128, 136 (1978), and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71 (1985). "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott, 436 U.S. at 138. The court is now persuaded that the circumstances here, viewed objectively, justified the actions taken by Deputy Schneider.
9. The Tenth Circuit has made clear that knowledge of a defendant's "prior criminal involvement alone is insufficient to give rise to the necessary reasonable suspicion to justify shifting the focus of an investigative detention from a traffic stop to a narcotics or weapons investigation." United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997); see also United States v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996); United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994). Deputy Schneider, however, did not rely upon the defendant's past criminal history. He relied only upon information concerning the defendant's current, on-going narcotics activities. The reliance upon this information differs significantly from reliance upon an individual's prior criminal activity as support for reasonable suspicion.
10. In sum, the court finds that Deputy Schneider had sufficient specific and articulable facts to reasonably warrant shifting the focus of his intrusion from the traffic stop to a search for illegal drugs.
11. Following the alert by the drug dog, Deputy Schneider had probable cause to search the defendant's van. United States v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1993) (canine alert without more provides probable cause to search vehicle).
12. Accordingly, because the defendant was detained with reasonable suspicion, the evidence discovered in the van will not be suppressed.
13. With this decision, we turn to the searches of the defendant's residences. The defendant contends that the search warrants for the residences lacked probable cause because (1) the information provided by the informants was stale; (2) the veracity and reliability of the informants are not stated; (3) the information provided by the informants was not verified or corroborated; (4) the information provided by the informants does not state a source of knowledge; (5) the information provided by the informants does not establish a nexus to either of the defendant's residences; and (6) the fruits and facts of the traffic stop must be excised from the warrant because they were illegally obtained. The government contends that the affidavits as submitted 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 ofUnited States v. Leon, 468 U.S. 897 (1984) would apply.
14. 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).
15. 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.
16. 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.
17. 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.
18. 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.").
19. 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).
20. In sum, the court finds that the information contained in the affidavits was sufficient to support a finding of probable cause to search the residences in Lorraine and Russell. Moreover, 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.
21. Accordingly, the court shall deny the defendant's motion to suppress.
22. With this decision, the court shall also deny defendant's motion to reconsider filed on April 17, 2001 as moot.
MOTION TO PRODUCE
In this motion, the defendant seeks all fingerprint results and all other test results conducted by any law enforcement agency including, but not limited to, the Kansas Bureau of Investigation. The government responds that all reports relating to fingerprint analysis have been turned over to the defendant.
With the government's response, this motion can be denied as moot.
GOVERNMENT'S MOTION FOR ADMISSION OF 404(B) EVIDENCE/SUPPLEMENT TO MOTION FOR ADMISSION OF 404(B) EVIDENCE
DEFENDANT'S MOTION IN LIMINE
The government seeks an order allowing the introduction of the following evidence pursuant to Fed.R.Evid. 404(b): (1) the defendant's two prior convictions from 1994 for the sale of methamphetamine; (2) testimony of Steve Shutes relating to defendant's methamphetamine manufacturing and distribution activities; (3) testimony of Kenneth Peterson relating to defendant's methamphetamine manufacturing and distribution activities; (4) 7 photographs of Kenneth Peterson found during the search of defendant's residence in Russell, Kansas; (5) testimony of Edward Pacey relating to the defendant's methamphetamine trafficking and manufacturing activities; (6) evidence that the defendant has a reputation of being a methamphetamine cook and/or distributor in the community; and (7) testimony of Jed Blankenship, which will include statements made by the defendant that he is a methamphetamine user or addict. The government alleges that it offers this evidence to show: (1) that the defendant had knowledge of the methamphetamine lab that was found at his alleged residence in Lorraine, Kansas; (2) that the lab was an instrumentality in a greater scheme or plan to distribute methamphetamine; and (3) that the defendant's scheme to distribute methamphetamine is relevant to show his state of mind and purpose for committing the crimes charged in the indictment.
The defendant has filed a motion in limine concerning the following evidence: (1) defendant's prior convictions; (2) the testimony of Steve Shutes; and (3) the testimony of Kenneth Peterson. At the hearing on this motion, the defendant asked to extend his motion to other evidence sought to be introduced under Rule 404(b). The defendant makes a variety of specific arguments why this evidence should not be introduced, but in general argues that its probative value is outweighed by its prejudicial effect.
Under Fed.R.Evid. 404(b), courts may not admit evidence of "other crimes, wrongs or acts . . . to prove the character of a person in order to show action in conformity therewith." However, such evidence is admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
To determine if admission under Rule 404(b) is proper, the following four-part test is applied: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must outweigh its prejudicial value; and (4) a limiting instruction should be given upon request. Huddleston v. United States, 485 U.S. 681, 691-92 (1988); United States v. Rackstraw, 7 F.3d 1476, 1479 (10th Cir. 1993). The government must precisely articulate a proper purpose for the evidence, and the trial court must specifically identify the proper purpose for which it is admitted. United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986).
The Tenth Circuit has repeatedly held that "the use of prior drug involvement to show plan, motive or intent in a drug trafficking offense is appropriate." United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992); see also United States v. Record, 873 F.2d 1363, 1375 (10th Cir. 1989); United States v. Mora, 845 F.2d 233, 237 (10th Cir.), cert. denied, 488 U.S. 995 (1988). The Tenth Circuit, however, has recently emphasized that prior narcotics activity must be "close in time" and similar to the activity with which the defendant is charged. United States v. Wilson, 107 F.3d 774, 785 (10th Cir. 1997).
The government's motion and supplement were filed prior to the filing of the second superseding indictment. This indictment added the conspiracy charge. As indicated by the government at the hearing on this motion, the addition of this new charge has changed much of the argument on the instant motions. With the addition of the conspiracy charge, much of the evidence that the government sought to introduce under Rule 404(b) can now be introduced as intrinsic evidence. Accordingly, the court will hold the instant motion as well as most of the motion in limine filed by the defendant in abeyance until trial. At that time, the court can consider the evidence in the context of the trial before ruling on its admissibility.
The court, however, shall consider the admissibility of the defendant's prior convictions under Rule 404(b). While the government has stated a proper purpose under Rule 404(b) for the introduction of this evidence, and thus fulfilled the first prong of the Huddleston test, it has failed to satisfy the second prong, namely that the evidence is relevant. The court does not find that the prior convictions meet the time and similarity requirements. We note initially that the convictions are almost four years prior to the commencement date of the conspiracy charge, January 1, 1998, and six years prior to the dates of the other charges, March 26 and 27, 2000. The Tenth Circuit has indicated that "[f]our to six years transcends our conception of `close in time'" for the purposes of relevance under Rule 404(b). United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000). We next note that the prior convictions are not factually similar to the activity for which the defendant is currently charged. The prior convictions were for distribution of methamphetamine. Although both prior convictions involved methamphetamine, this is where the similarity ends. In this case, the defendant is charged with activities involving the manufacture of methamphetamine. Some mention is made of distribution and intent to distribute in the indictment, but the crux of the charges involves the manufacturing of methamphetamine. Given the lack of similarity and the lack of temporal proximity, the court shall not allow the introduction of the defendant's prior convictions under Rule 404(b). On this issue, the court shall grant the defendant's motion in limine and deny the government's motion for admissibility under Rule 404(b).
IT IS THEREFORE ORDERED that the defendant's motion to suppress (Doc. # 13) be hereby denied.
IT IS FURTHER ORDERED that the government's motion to reconsider the court's order of December 22, 2000 (Doc. # 85) be hereby granted. The court hereby vacates its rulings on the defendant's motion to suppress contained in the orders of October 20, 2000 and December 22, 2000.
IT IS FURTHER ORDERED that the defendant's motion for reconsideration of the court's order of October 20, 2000 (Doc. # 84) be hereby denied as moot.
IT IS FURTHER ORDERED that the defendant's motion to produce (Doc. # 47) be hereby denied as moot.
IT IS FURTHER ORDERED that the government's motion for admission of Rule 404(b) evidence (Doc. # 48) be hereby denied in part with the remainder held in abeyance pending trial.
IT IS FURTHER ORDERED that the defendant's motion in limine (Doc. # 58) be hereby granted in part with the remainder held in abeyance pending trial.
IT IS SO ORDERED.