Opinion
No. 01-40087-01-SAC.
November 15, 2001
MEMORANDUM AND ORDER
This case comes before the court on two discovery motions and one suppression motion filed by the defendant. Defendant has been charged by indictment with one count of attempt to manufacture methamphetamine, and one count of possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine, both occurring on or about August 17, 2001.
FACTS
The facts in this case are few and uncontroverted. A confidential informant, working with an agent of the Kansas Bureau of Investigation ("KBI"), made one controlled purchase of methamphetamine from the defendant at his residence on July 11, 2001 and another on August 16, 2001. Based upon the two controlled buys, KBI Agent Mario Polite completed a search warrant affidavit, and obtained on August 17, 2001 a search warrant for defendant's residence and the surrounding area consisting of a quarter section of land, i.e., 160 acres. The warrant sought methamphetamine and items related to its manufacture.
On August 17, 2001, the search warrant was executed on the residence defendant rented in Belleville, Republic County, Kansas, and its surrounding area. While executing the search warrant in the residence, officers encountered the defendant and arrested him. In the residence, garage, shed, and vehicles on the property, officers found and inventoried 61 items related to the manufacture of methamphetamine, including glass jars with residue of lithium, plastic bags containing methamphetamine, coffee filters with residue of lithium and pseudoephedrine, hydrochloric acid, and assorted glassware. Defendant seeks to suppress the items seized at that time, based upon alleged overbreadth of the search warrant.
I. Defendant's motion for discovery (Dk. 27), and defendant's motion to compel discovery regarding informant (Dk. 28).
Defendant has moved for the production of certain discovery, most of which the government has agreed to produce. The government refuses to produce "copies of audio tapes of conversations between the accused and the informant," because doing so would reveal the identity of said informant. (Dk. 33, p. 16).
Defendant states that because it already knows the informant's identity, any privilege to withhold such information the government may have otherwise possessed has been waived. S ee Roviaro v. United States, 353 U.S. 53 (1957). Defendant asserts that the government has waived its privilege not to disclose the identity of the informant by revealing information from which that identity could be deduced, i.e., that the informant made controlled buys at defendant's residence on two specific dates. This information, coupled with defendant's representation to his counsel that only one person who did not reside with him was present at his residence on those dates, leads defendant to deduce that the informant can be only one person, whose name he knows. The government refuses to confirm or refute the name defendant asserts is the informant, dismissing defendant's conclusion as mere surmise.
"When the Government is a party, the preservation of these privileges is dependent upon nondisclosure of the privileged evidence to the defendant." Jencks v. United States, 353 U.S. 657, 676 (1957) (regarding Roviaro and other privileges). "Once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable," Roviaro, 353 U.S. at 60, as "the purpose of the privilege is to maintain the Government's channels of communication by shielding the identity of an informer from those who would have cause to resent his conduct." Id.
The government is not alleged to have revealed to the defendant the name of the informant. Although defendant's deduction about the identity of the informant may or may not be correct, that deduction is not based solely upon information provided to the defendant by the government from which only one conclusion may necessarily be drawn. Instead, it is based in substantial part upon defendant's knowledge of other facts, namely, who else was present at the same place on the dates alleged, as well as upon defendant's speculation that no person residing with him is the informant. Defendant has shown no cases in which the government has been found to have knowingly and voluntarily waived its privilege under similar circumstances. The court cannot conclude, based upon the facts, that effective waiver of the privilege has taken place.
Defendant's motion to compel asks the government to disclose, among other information, the following: "the name and address of the informant," "any prior record of the informant," "any promised immunities or agreements with the informant, and other evidence affecting the issues of bias or credibility of the informant," "any payments and other consideration made to the informant," "any recorded memorandum of communication between the informant and government agents," the results of any polygraph examination the informant took, and the extent of the informant's work in the investigation of other cases. (Dk. 28, p. 1-2).
Defendant alleges the informant "set up" two controlled buys which resulted in the issuance of a search warrant for the property where defendant rented a home, and that no law enforcement officers were present on either such occasion. Defendant further asserts that the information sought is both relevant and helpful to prepare for trial and prepare an effective cross-examination of the informant.
The Supreme Court in Roviaro, 353 U.S. at 59, recognized the compelling public interest in favor of effective law enforcement and created a privilege that permits the government to withhold the identity of informants. United States v. Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992). Though anonymity encourages and protects informants, the Supreme Court held that the privilege yields to fairness if the informant's identity "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro, 353 U.S. at 60-61.
"A defendant seeking to force disclosure of an informant's identity has the burden to show the informant's testimony is relevant or essential to the fair determination of defendant's case." United States v. Gordon, 173 F.3d 761, 767 (10th Cir.), cert. denied, 528 U.S. 886 (1999). The informant's "testimony must be shown to be valuable to a defendant; mere speculation is not enough." United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995) (citation omitted). "`The defendant must explain to the court as precisely as possible what testimony he thinks the informer could give and how this testimony would be relevant to a material issue of guilt or innocence.'" United States v. Blevins, 960 F.2d 1252, 1259 (4th Cir. 1992) (quoting 2 Jack B. Weinstein Margaret A. Berger, Weinstein's Evidence p. 510[06] (1991)); see also United States v. Ridley, 814 F. Supp. 992, 996 (D.Kan. 1993), on reconsideration, 831 F. Supp. 808 (D.Kan. 1993).
A decision on disclosure of identity entails "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, 353 U.S. at 62. Striking a proper balance depends on "the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id.; see United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997). Generally, "`[a] defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant's case and justice would best be served by disclosure.'" Leahy, 47 F.3d at 398 (quoting United States v. Reardon, 787 F.2d 512, 517 (10th Cir. 1986).
On the other hand, the court need not require disclosure when the confidential informant "did not participate in the illegal activity or when information sought is cumulative" Leahy, 47 F.3d at 398 (citation omitted), or when the informant is not a participant or witness to the crime, United States v. Brantley, 986 F.2d 379, 383 (10th Cir. 1993), or when the informant is a mere tipster, United States v. Wynne, 993 F.2d 760, 766 (10th Cir. 1993).
In opposing these discovery motions, the government responds specifically only to the request for the informant's identity. Presumably, if the identity cannot be disclosed, then the remaining information defendant seeks should not be disclosed, for it would reveal the protected identity. The government alleges that the informant was a mere tipster, was not an "active participant" in any criminal activity with which the defendant is charged, has limited information, was not present during the commission of the offense, did not observe the defendant's criminal acts, and cannot provide any evidence that is exculpatory or not cumulative.
Counsel for the government assured the court at the evidentiary hearing that the confidential informant will not be called as a witness at trial, was not a witness to the acts which form the basis for the counts in the indictment, and that the indictment is based solely on evidence found in the defendant's residence on August 17, 2001, about which the informant has no knowledge.
The role of the confidential informant was not well developed in testimony presented at the evidentiary hearing. Nonetheless, from the exhibits admitted at that hearing, it is clear that the informant made a controlled buy of methamphetamine from the defendant on July 11, 2001, and again on August 16, 2001. (Gvmt. Exh. 2). KBI agent Polite set forth information regarding the controlled buys in his affidavit in support of the search warrant. (Gvmt. Exh. 2). It is equally clear that the indictment does not charge the defendant with any acts which occurred on July 11th or August 16th. Instead, the indictment alleges solely that defendant attempted to manufacture methamphetamine on August 17, 2001, and on that same date possessed with intent to distribute a mixture or substance containing a detectable amount of methamphetamine.
Although the search warrant was based on two controlled purchases of methamphetamine made from the defendant by a confidential informant on two dates, the informant played no role in the offenses giving rise to the charges. Defendant has not alleged any testimony he thinks the informer could give or how such testimony might be relevant to a material issue of guilt or innocence. Because the informant merely participated in two controlled buys which precede the date of the offenses with which the defendant is charged, and did not participate in or witness the offenses with which the defendant is charged, and will not be called to testify at trial, defendant's motion to compel discovery regarding informant (Dk. 28) and defendant's motion for discovery (Dk. 27) of the audio tape will be denied.
II. Motion to Suppress (Dk. 29]
Defendant challenges the search of the residence he rents, which was conducted pursuant to a search warrant. Defendant alleges that the search warrant was overly broad in authorizing search of the quarter section (160 acres) of land on which his residence sat, and was not sufficiently particular to authorize a search of his residence. Specifically, defendant alleges: "the warrant did not authorize a search of the residence, but, rather, the 160 acres described in the warrant," (Dk. 29, p. 2), and that such a warrant "does not suffice to authorize a search of a residence located on the land," citing United States v. Dahlman, 13 F.3d 1391 (10th Cir. 1993), cert. denied, 511 U.S. 1045 (1994).
Defendant's counsel conceded at the evidentiary hearing that her factual assertion is in error, and that the search warrant does in fact specifically refer to defendant's "residence" among the area to be searched.
"Under the Fourth Amendment, every warrant must `particularly describ[e] the place to be searched, and the persons or things to be seized' — a requirement that prevents a `general exploratory rummaging in a persons belongings.'" United States v. Emmons, 24 F.3d 1210, 1216 (10th Cir. 1994).
The search warrant lists certain crimes that are being or have been committed, describes particular items as contraband of said crimes, then states:
The foregoing items are located at or on: Freedom Township S.W. 1/4 § 8 2-3, 2-South, Range 3W in Republic County, Kansas.
The area to be searched includes the residence/structure, curtilage, and all portions of the property in which methamphetamine and associated chemicals can be manufactured, processed, stored, or hidden, etc. (Gvmt's Exh. 3). To conclude that the search warrant does not authorize the search of defendant's residence, when its plain language expressly states that "the area to be searched includes the residence . . ." is not a reasonable construction of the search warrant.
Defendant does not challenge the search warrant for lack of probable cause, or allege that it was unreasonable for the state judge to infer from the fact that defendant had sold methamphetamine from his residence within the previous 24 hours that items such as those listed could reasonably be expected to be found on the premises.
Defendant additionally alleges that the warrant was insufficiently particular and overly broad in authorizing a search of the entire 160 acre tract, because law enforcement officers had no reason to believe that anything but the residence would contain the items authorized in the search warrant.
Defendant's counsel concedes that defendant had no control over anything but the residence, which he rented. Fourth Amendment rights are personal, and, therefore, "a defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises." United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989) (citations omitted). Based on this principle, the court finds that without a possessory or property interest in the acreage searched, defendant lacks standing to challenge that search. See United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984).
Further, the testimony from Agent Polite was both credible and unrebutted that no items were taken from the open fields, caves, or excavations on the property, and that all items seized were located in the residence, vehicles, shed, or trees surrounding the residence. Thus even if the defendant had standing to challenge the seizure, and it were illegal for some reason defendant has not articulated, no evidence exists to be suppressed.
Defendant does not allege that this is one of those unusual cases in which suppression of all the evidence seized is required because of officers' flagrant disregard for terms of the warrant. See United States v. Medlin, 842 F.2d 1194, 1198-99 (10th Cir. 1988).
Leon good faith exception
The government alleges that even if the warrant is facially deficient for lack of particularity, Leon's good faith exception applies. See United States v. Leon, 468 U.S. 897 (1984). It is well established that the good faith exception recognized in Leon may save a warrant deficient for lack of particularity . See Massachusetts v. Sheppard, 468 U.S. 981 (1984).
Defendant alleges Leon is inapplicable because the warrant is "facially deficient," citing United States v. Williamson, 1 F.3d 1134 (10th Cir. 1993) (holding Leon inapplicable where warrant described the place to be searched as a post office mail box.) Defendant does not support this allegation, which apparently relies upon defendant's erroneous contention that the search warrant did not authorize the search of the residence.
Because the search warrant issued in this case was valid, the court need not settle the issue whether the good faith exception found in Leon is applicable.
IT IS THEREFORE ORDERED that defendant's motion for discovery (Dk. 27), and defendant's motion to compel discovery regarding informant (Dk. 28), are denied.
IT IS FURTHER ORDERED that defendant's motion to suppress (Dk. 29) is denied.