Opinion
Case No. 2:04-CR-544 TS.
June 15, 2005
REPORT RECOMMENDATION Re: 11/18/04 Search
Defendant John Roman filed a Motion to Quash Search Warrant and Suppress Evidence discovered pursuant to a search on November 18, 2004. (Dkt. no. 55.) The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B).
On March 22, 2005, the Magistrate Judge held a hearing on the motion at which Mary Corporon represented Defendant, and Drew Yeates represented the government. At the hearing, counsel for Defendant stated that the motion to suppress was meant to include any statements made by Defendant during the course of the search. (Tr. 10.) Following the hearing, the parties submitted additional briefing which was complete on May 16, 2005.
I. FACTS
A. Michael Boyd
Michael Boyd, a Salt Lake City narcotics detective, testified that in November 2004, he obtained a search warrant for the premises known as 3487 W. 4700 South. (Tr. 16.) Prior to obtaining the search warrant, Detective Boyd conducted an investigation of the premises which he believed to be a single family red-brick house and attached garage in a residential community. In conducting the investigation, Detective Boyd did not want to get too close to the house so as to prevent its occupants from discovering his presence. As a result, he could not see into the yard. (Tr. 17.) Detective Boyd testified that when he conducted surveillance from the street, the house and garage appeared to be a typical middle class, single family dwelling with a normal yard. (Tr. 42-43.)
Detective Boyd stated that the warrant was considered to be a high hazard warrant because of the possible presence of firearms, and because Defendant, who was the main suspect in the investigation, had previously been charged with possession of a firearm by a user of controlled substances. A high hazard warrant must be served by the SWAT team. (Tr. 19-20.) The narcotics officers did not enter until the SWAT team secured the area. (Tr. 49.)
Before the warrant was served, SWAT team members scouted the area and obtained an aerial photograph. During a team leader briefing before the warrant was served, officers discovered from the aerial photo that there was a big piece of property behind the main house. (Tr. 17, 43.) There appeared to be a broken down motor home on the far south end of the property, a camper, a trailer, a big barn, and another barn-like structure. (Tr. 17.)
In serving the warrant, the SWAT team entered the house described in the warrant, secured the occupants in the living room with handcuffs or zip ties, and then the narcotics officers entered the residence. (Tr. 23-24, 26.) The SWAT team advised the narcotics officers that there was a common door that led to a separate part of the residence. The SWAT officers had breached that door and discovered that an "elderly grandmother" resided in that part of the residence. (Tr. 24.) They secured the area, but did not secure the elderly lady, and the narcotics officers did not search that area of the house. (Tr. 25.) Detective Boyd stated that two other individuals were found inside the red brick house. (Tr. 26.) The two individuals found in the house were Defendant's parents. (Tr. 50.)
Detective Boyd at first said that three individuals, excluding the elderly woman, were found in the house. (Tr. 26.) He later corrected the number to two individuals. (Tr. 27.)
On cross-examination Detective Boyd described the entry to the house and property in more detail. The warrant was served on November 18, 2004, at approximately 11:45 p.m. (Tr. 51.) The SWAT team was divided into two elements. One element made the entry into the house, and the other took control of the yard and outbuildings. (Tr. 44-45.) Forty officers were on the team that made the initial entry. (Tr. 45.) The front door was taken out by a battering ram. (Tr. 45.)
In making the entry, the officers used a "flash-bang" which is a device that makes a fiery flash and a very loud, explosive noise, and is used to cause a distraction. (Tr. 45-47.) In this case, the flash-bang was used when the officers discovered the second door leading to the elderly woman's apartment. (Tr. 46.) Detective Boyd was not sure whether the flash-bang was thrown through a window, breaking the window, or whether the officers opened a door and tossed it in. (Tr. 46.) However, the officers took photos of the damage caused by the flash-bang in the area where the flash-bang landed in the entrance to the elderly woman's apartment. (Tr. 46-47.)
The forty officers who made the initial entry were all dressed in SWAT uniforms, meaning they were all in black from head to toe. (Tr. 47.) They were all wearing bullet-proof vests which gave them a bulky appearance. They wore balaclavas on their heads, and Kevlar helmets. (Tr. 48.) Some of the officers had protective face shields on their helmets; others wore protective glasses. (Tr. 48-49.)
After the SWAT team made the initial entry, approximately twelve narcotics officers entered the property. (Tr. 49.) Thus, the total number of officers present immediately after the warrant was served was fifty-two. (Tr. 50.) The narcotics officers were wearing Levi's, black shirts with "Police" written on the front and back, and black balaclavas to protect their identities. (Tr. 50.) Some of them were wearing bullet-proof vests under their police shirts, and all of them had on long sleeves or jackets because it was cold. (Tr. 51-52.)
Detective Boyd clarified that once the premises are secure, the SWAT team leaves; it does not stay while the narcotics officers conduct the search. (50-51.)
At the same time the SWAT team entered the house, other SWAT team members secured the rest of the property. (Tr. 25.) Those other SWAT team members found Defendant, his wife Cheryl Roman, and another man, Michael Todd Lee, on the property. (Tr. 26-27, 49.) Defendant was in the back portion of the property to the south of the residence standing near his pickup which was parked next to a utility trailer and a camper. Michael Todd Lee was standing next to the truck. (Tr. 27, 49.) Detective Boyd did not know where Cheryl Roman was found. (Tr. 41.)
Detective Boyd drew a diagram of the residence and the surrounding area which contained an old building used to store horseshoes and ropes, and things of that nature, another big barn facility, two campers, a utility trailer, a white truck, a motor home, and some abandoned vehicles. (Tr. 28-30.) Detective Boyd indicated on the diagram where Defendant and Mr. Lee were found. (Tr. 30-31.) A chainlink fence separated the main house and the garage from the back pasture area where all of the outbuildings, campers, trailer, truck, motor home, and other vehicles were located. (Tr. 30, 39.) Detective Boyd estimated the size of the property to be one-half to a full acre. (Tr. 17, 65.) He estimated that the distance from the house to the barn to be about 50 or 60 yards, and about 110 yards from the house to the blue and white camper. (Tr. 666-7.) Detective Boyd testified that he checked to find out who was the actual owner of the property, but he could not recall who it was. However, he knew it was not John Roman, the defendant. (Tr. 39-40.)
The diagram of the property is attached as Plaintiff's Exhibit 2 to the minute entry for the hearing. (Dkt. no. 69.)
The narcotics squad, consisting of eleven or twelve officers, conducted a search of the property after the SWAT team secured the scene. The officers found a .22 caliber Derringer in the truck next to Defendant, where one of the team members said he had tossed it. (Tr. 31, 32.) In addition, they found a Remington 12-gauge shotgun in the closet of the blue and white camper. (Tr. 31-32.) Detective Boyd stated that even though guns were not listed in the warrant, the guns were seized because the officers knew that Defendant was a "restricted person." The shotgun was seized because it was found in the camper where Defendant was staying. (Tr. 33.)
Detective Boyd first said that the Derringer was found on Defendant's person (Tr. 31), but corrected himself to say that it was found in the truck. (Tr. 32.)
Detective Boyd later clarified that the camper in which Defendant was staying was the blue and white camper. (Tr. 36-37, 40.) This camper is also sometimes referred to in the transcript as the "RC camper" because Detective Boyd marked it on the diagram with a red "R" to denote that it was the Roman camper. (Tr. 36-37.)
Three packages, containing 30.2 grams of marijuana, were found on the north bench of the blue and white camper. A fourth package, containing 119. grams of marijuana was found in the closet.6 Three meth pipes were also found in the blue and white camper. (Tr. 32, 56.) In addition, the officers found residency documents for John Roman in that camper. (Tr. 56-57.) In the utility trailer (also called the white trailer), the truck, and the area around the truck, the officers found other items of paraphernalia, small amounts of drugs, prescription medications, some unidentified pills, and photo ID for John and Cheryl Roman. (Tr. 57-63.)
Detective Boyd clarified that the marijuana was weighed in the field, and the weights included the packaging and the evidence bag. (Tr. 57.)
Detective Boyd explained that most of the search was focused on the camper and utility trailer after officers realized that the house was occupied by Defendant's parents and that Defendant was actually staying in the back in the camper. Officers gained this information from speaking with Defendant's parents, and from finding residency documents in the camper. Once drugs were discovered in the camper, the search was concentrated there. The (Tr. 34.)
Detective Boyd acknowledged that when the officers entered the blue and white camper and the utility trailer, it was obvious that someone was staying there. (Tr. 40.) The camper and trailer were set up side-by-side about fifteen to twenty feet apart. The utility trailer had a mattress where someone had been sleeping and was essentially set up as a bedroom. (Tr. 40-41.) The blue and white camper had a little cooking area in it. (Tr. 41-42.) The whole area was cluttered and messy. (Tr. 42.) The officers found what they believed to be personal effects of John and Cheryl Roman in both the blue-and-white camper and the utility trailer. However, they did not find anything in the main house that they thought belonged to John and Cheryl Roman. (Tr. 42.)
All of the incriminating evidence was found in the blue and white camper, the white utility trailer, and Defendant's white pickup truck. (Tr. 37-39.) Nothing of interest was found in the other camper, the main house and garage, or the motor home. (Tr. 37-38.) On cross-examination, Detective Boyd acknowledged that Defendant was the target of the investigation, and that the warrant did not authorize the search of Defendant's person or vehicles. (Tr. 35.)
Detective Boyd explained the reasons why Defendant was targeted and how the search warrant was formulated. First, someone identifying himself as John Roman had taken a suspicious package to Greyhound Package Delivery Service for delivery. The return address on the package was 3487 W. 4700 South which was the same address as the property for which the search warrant was obtained. A Greyhound employee opened the package, found that it contained narcotics, and called police. (Tr. 53-54.) Subsequently, Detective Boyd conducted a "trash cover" at the residence where he found indications of marijuana use including marijuana ashes, seeds, and packaging in the trash. He also found a "tooter straw" which tested positive for methamphetamine. (Tr. 54.) No other evidence was found in the trash prior to obtaining the warrant. (Tr. 54-55.) Detective Boyd's investigation also revealed that Defendant had two prior arrests, although he had no convictions. (Tr. 53, 55.)
B. Douglas Teerlink
Detective Teerlink conducted interviews of the people found on the property. (Tr. 697-0.) He interviewed Defendant in the morning of November 19, 2004 at 1:34 a.m. in the living room of the main house. (Tr. 70.) During the interview, Detective Teerlink was wearing a black police T-shirt and Levi's, and a balaclava to conceal his identity. (Tr. 81.) About twelve or thirteen police officers were in the residence at the time. (Tr. 81-82.) All of the officers were wearing black police T-shirts, and most were wearing balaclavas. All of them, including Detective Teerlink, were armed. (Tr. 82.)
Detective Teerlink read Defendant his Miranda rights, and asked if he understood his rights. He said that he did. Detective Teerlink then asked Defendant if he would be willing to talk to him, and he said that he would. (Tr. 70-72.)
In answer to questioning, Defendant stated that he had been living in the trailer in back of the residence for about three months. When asked if he used drugs, he stated that he used Lortab and morphine for pain. (Tr. 72.) Detective Teerlink then asked him about the marijuana and methamphetamine that he had attempted to ship to St. George. Defendant responded that "some guys had forced him to send the package." (Tr. 72, 74.) Defendant stated that he could not tell Detective Teerlink who these guys were because they would come after him and his family. (Tr. 74.)
Detective Teerlink asked Defendant about the gun he had on his person when the SWAT team arrived. Defendant stated that he carried the gun for protection from "the guys," and when he saw the officers, he tossed the gun into the back of the truck. (Tr. 75.) Detective Teerlink asked Defendant about a gray bag containing narcotics that was found on the ground next to the pickup. Defendant stated that it was his, and that he had dropped it earlier that evening while carrying some groceries into the trailer. Defendant stated that the bag contained some pills that he traded with people, some cocaine for personal use, and some methamphetamine that was given to him by the guys for delivery. (Tr. 75.) In answer to a question about how he obtained his drugs, Defendant stated that when the guys gave him drugs for delivery, he sometimes would skim something off the top for himself. (Tr. 75-76.)
II. DISCUSSION
A. Standing
The government contends that Defendant does not have standing to challenge the search because the camper and utility trailer were located on his parents' property, and he presented no evidence that he had a legitimate possessory interest in them or that he was the owner of the items seized. Defendant responds that the camper and utility trailer constituted his home for Fourth Amendment purposes.
In order to have standing to contest a search, the defendant must have a subjective expectation of privacy in the area searched, and the expectation of privacy must be one that society is willing to recognize as objectively reasonable. United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000); United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989). The defendant has the burden to prove standing. Allen, 235 F.3d at 489; see Erwin, 875 F.2d at 270.
The courts have a "well-founded tradition of recognizing the sanctity of the home." United States v. Dahlman, 13 F.3d 1391, 1395 (10th Cir. 1993). As many courts have observed, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972). Although Defendant's residence might have been rude, it is well established that "the most frail cottage" is entitled to the same Fourth Amendment protection as "the most majestic mansion." See, e.g., United States v. Ross, 456 U.S. 798, 822 (1982). Courts have extended this protection to untraditional housing. See, e.g., United States v. Sandoval, 200 F.3d 659 (9th Cir. 2000) (defendant had expectation of privacy in tent); Kelley v. State, 245 S.E.2d 872 (Ga.App. 1978) ("tent-dweller is no less protected from unreasonable government intrusions merely because his dwelling has walls of canvas rather than walls of stone"). The court concludes that Defendant had a reasonable expectation of privacy in his living quarters. The fact that Defendant's residence was located on his parents' property does not alter this conclusion. See United States v. Rhiger, 315 F.3d 1283, 1285-87 (10th Cir. 2003) (social guest had standing to challenge search of host's home); Sandoval, 200 F.3d 659 (tent located on BLM land). Accordingly, Defendant has standing to challenge the search of his residence.
B. Particularity of the Warrant and Scope of the Search
The warrant at issue in this case was issued by a state court judge in the Third District Court, State of Utah. Defendant contends that the warrant was defective because it did not particularly describe the place to be searched.
The Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized. The purpose of the particularity requirement is to prevent general searches. Maryland v. Garrison, 480 U.S. 79, 84 (1987).
By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.Id.
The Tenth Circuit has stated that the description in a search warrant is sufficient if it will enable the officer to determine the place to be searched with reasonable effort. United States v. Dahlman, 13 F.3d 1391, 1394 (10th Cir. 1993); United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir. 1992);United States v. DePugh, 452 F.2d 915, 920 (10th Cir. 1971). In applying this standard, the court has held that a partially erroneous description in a warrant is not fatal where the officers nevertheless were able, through reasonable effort, to ascertain the area to be searched. Dahlman, 13 F.3d at 1394;DePugh, 452 F.2d at 920. In addition, the court has held that a warrant authorizing the search of certain premises that are otherwise adequately described, also allows the search of vehicles located on the curtilage, even though the warrant does not specifically authorize the search of vehicles. Dahlman, 13 F.3d at 1394-95.
In the instant case, the warrant particularly described the place to be searched as a single family dwelling located at 3487 W. 4700 South. The warrant further noted that the residence was constructed of red brick with white trim; its roof was asphalt shingles; the front door was made of wood and was located on the north side of the residence facing 4700 South; a mailbox in front of the residence had 3487 in black numbers stuck on it; there was a black wrought iron fence in front of the residence; and it was the sixth structure west of Simper Lane. The warrant also authorized the search of "the surrounding grounds and any garages, storage rooms, and outbuildings of any kind located upon the curtilage of the property." (Search Warrant, attached as Ex. A to Gov.'s Resp. to Def.'s Mot. to Quash Search Warrant Suppress Evid., Dkt. no. 64.)
The government argues that the warrant is valid because it describes the place to be searched with sufficient particularity that the officers could locate it with reasonable effort, and it eliminated the possibility that another premises might be searched by mistake. The court agrees that the warrant described the house at 3487 W. 4700 South with the requisite particularity. The problem is that the description refers to the house owned and occupied by Defendant's parents, not the property where Defendant's residence was located. At the time Detective Boyd applied for and obtained the warrant, he believed that the house at 3487 W. 4700 South was Defendant's residence. When the warrant was obtained, Detective Boyd was not even aware of the existence of the additional property behind the house where Defendant actually resided and where the incriminating evidence was found. The issue in this case is whether the warrant authorized the search of the property where Defendant's residence was actually located. The court concludes that it did not.
The warrant specifically authorized the search of buildings within the curtilage of the main house described in the warrant. However, Defendant's residence was located outside the curtilage of the house where his parents resided. The extent of the curtilage is determined by factors that bear on whether the resident of the house "reasonably may expect that the area in question should be treated as the home itself." United States v. Dunn, 480 U.S. 292, 300 (1987). The "central component of this inquiry [is] whether the area harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.'" Dunn, 480 U.S. at 300 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). Courts consider four factors in determining whether an area lies within the boundaries of the curtilage: (1) proximity to the house, (2) whether the area is included within an enclosure surrounding the house, (3) the nature of the use to which the area is put, and (4) attempts by the resident of the house to protect the area from observation by people passing by. Dunn, 480 U.S. at 301.
Considering the first factor, Defendant's residence was located a considerable distance from the main house. Detective Boyd estimated the distance to be 110 yards, or more than the length of a football field. (Tr. 67.) In Dunn, the area found to be outside the curtilage was only located 60 yards from the house.Dunn, 480 U.S. at 302.
Second, the area in question was not located within the enclosure surrounding the house. Rather, it was separated from the house by a fence. (Tr. 30, 39.) In Dunn, the Court noted that "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience." Dunn, 480 U.S. at 302 (quoting Oliver, 466 U.S. at 182 n. 12). Given the description of the property and the diagram drawn by Detective Boyd, it is clear that the fence served to delineate the "specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house." Dunn, 480 U.S. at 302. Conversely, the area where Defendant was residing "stands out as a distinct portion of [the land], quite separate from the residence." Id.
Third, nothing in the evidence suggests that the area in question was used for the intimate activities of life associated with the main home. Rather, Detective Boyd testified that the area contained abandoned vehicles, and old buildings that obviously were not being used.
Turning to the fourth and final factor, there was nothing to suggest that the residents of the house took any steps to protect the area from observation. Although it was fenced, the fence was a chain-link type which would not prevent anyone from looking into the property. Thus, a consideration of the four factors leads to the conclusion that the area in question, separated from the residence by a fence, was not part of the curtilage of the main house for which the officers obtained a search warrant. Rather, it more accurately would be described as the curtilage of Defendant's residence.
1. Practical Accuracy of the Description
The government contends that the search should be upheld because the description in the warrant was "practically accurate." The government relies upon the cases of United States v. Dorrough, 927 F.2d 498 (10th Cir. 1991), and United States v. Sturmoski, 971 F.2d 452 (10th Cir. 1992) to support its argument that the search of Defendant's residence was lawful. However, these cases are inapposite.
In Dorrough, the search warrant's description of the defendant's residence varied in some minor, technical details from the actual physical description. For example, the warrant stated that the house was a single-story wood frame dwelling, when in fact, it was only partially wood-framed. In addition, it misstated the number of outbuildings within the curtilage, and stated that the residence was a half mile from an intersection, when it was actually three-tenths to four-tenths of a mile from the intersection. In concluding that the warrant sufficiently described the area to be searched, the court stated that "practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched." Dorrough, 927 F.2d at 500. The court further noted that "the warrant stated that the turnoff to the defendant's home was marked by a red, white, and black mailbox in the shape of a house. This unique landmark enabled the officers to locate the residence with reasonable effort." Id. at 500-01. Further, the warrant described the house as located half a mile up a hill. At the sentencing hearing, the Defendant admitted that his house was the only one in the area on a hill. Id. at 501.
The government contends that the warrant in this case described the premises with "practical accuracy" even though it was not "technically precise," and the court should therefore find that the description was sufficient. However, unlike the warrant inDorrough, the issue in this case does not involve minor discrepancies in the description of the property. Instead, the area searched was not described in the warrant at all.
In Sturmoski, the defendant complained that the search warrant did not sufficiently identify his premises and completely omitted a horse trailer that was searched. The court noted that the warrant provided the defendant's name, described the buildings in detail, and contained the address of the premises. Further, an agent who participated in the search was familiar with the premises, providing additional reliability that the correct premises would be searched. With regard to the horse trailer, the court concluded that a warrant authorizing the search of the premises generally includes vehicles located within the curtilage. The court stated that the scope of the warrant includes vehicles actually owned or under the control of the owner of the premises or that appear, based upon reasonable indicia, to be so controlled. In that case, there was a path between Sturmoski's house and the trailer which provided reasonable indicia of Sturmoski's control over the trailer.Sturmoski, 971 F.2d at 458. The instant case is easily distinguishable from Sturmoski because the warrant in this case does not include the area searched which was outside the curtilage of the residence.
2. Officers' Knowledge
The government asserts that the officers who participated in the search were aware of the size and layout of the residential lot and knew of the campers and trailers located there because they had viewed the aerial photos of the property. (Gov.'s Mem. Opp'n to Def.'s Mot. to Suppress Evid. Obtained 11/18/04, at 8-9, Dkt. no. 79 (hereinafter "Gov.'s Mem.")) The government notes that the Tenth Circuit has recognized that an executing officer's knowledge may be a curing factor, citing United States v. Williamson, 1 F.3d 1134 (10th Cir. 1993). The government argues that the officers' knowledge in this case provided additional reliability that the correct property would be searched.
In Williamson, an IRS officer applied for a warrant to enter Williamson's business in an effort to seize assets to satisfy an outstanding tax liability. The warrant authorized IRS agents "to enter the premises at Star Route Box 302, Tijeras, New Mexico."Williamson, 1 F.3d at 1135. This description actually described a mailbox located some distance from the business to be searched. Even though the officers executing the warrant apparently searched the intended business, the Tenth Circuit upheld the suppression of the evidence. The Tenth Circuit acknowledged that "practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched." Id. at 1136. The court concluded, however, that "the warrant at issue did not describe the premises to be searched with sufficient particularity because it cannot be described as even `practically accurate.'" Id. The court rejected the government's argument that the executing officer's knowledge cured the "manifestly defective warrant." Id.
The court acknowledged that an executing officer's knowledge could be a curing factor. However, the court stated that the officer's knowledge in that case "was the sole source of information identifying the physical location of the business premises." Id. In concluding that the warrant was fatally defective, the court stated:
In effect, then, the government asks us to adopt a rule that an executing officer's knowledge alone is sufficient to satisfy the Fourth Amendment's particularity requirement. Because such a rule would be fundamentally inconsistent with the requirement of a written warrant, we conclude that the search warrant at issue was invalid.Id. In the instant case, the court likewise concludes that the officers' knowledge, gained only after the warrant was obtained, could not cure the defective warrant. In fact, the officers did not know that Defendant's residence was actually on the outlying property until after the warrant had been served, and after they learned from John Roman's parents and a search of the blue and white camper that Defendant was residing in the camper.
3. Authorization to Search Defendant's Residence
The government argues that the search warrant was intended to authorize a search of Defendant's residence. (Gov.'s Mem. at 9-11.) In the government's view, the fact that his residence was not where the officer thought it was when he obtained the warrant is a technicality which this court should ignore. The government analogizes the situation to cases in which the police obtained a warrant for a building, not knowing that it was divided into multiple housing units until they served the warrant. The government relies on United States v. Whitney, 633 F.2d 902 (9th Cir. 1980).
In Whitney, the court stated the general rule in such cases is that "a warrant which describes an entire building when cause is shown for searching only one apartment is void." Id. at 907. However, the court observed that there are exceptions to the rule where "the premises are occupied in common rather than individually, the defendant was in control of the whole premises,the entire premises are suspect, or the multiunit character of the premises is not known or apparent to the officers applying for and executing the warrant." Id. at 907 n. 3 (emphasis added by the government) (Gov.'s Mem. at 9). The government asserts that the situation here is comparable in that the residential lot turned out to have multiple dwellings. The government argues that the court should apply the logic set forth in Whitney and find that there was probable cause to search Defendant's residence because he was the intended subject of the search. In addition, based on the affidavit and warrant, the government contends the court should find that the entire premises was suspect. Finally, in applying for and executing the warrant, the government urges that the court should find that the officers did not know, and it was not immediately apparent, that the premises contained multiple dwellings.
The court rejects this argument, concluding that the circumstances of this case are not analogous to the situation in which officers obtain a warrant for an entire building. As previously discussed, the warrant in this case did not authorize the search of the entire property. By its own terms, it only applied to the main house and the surrounding curtilage. Further, Whitney is distinguishable because the court in that case found that even though the residence was divided into two apartments, the defendant had full control of the entire structure. Id. at 907-08. There is no evidence in this case to support a finding that Defendant had control of the property, or that the entire property was suspect. Moreover, the officers in this case learned of the additional property before executing the warrant, and could have tried to obtain another warrant.
In Dahlman, the Tenth Circuit rejected an argument similar to the one the government raises here. In that case, the government urged the Tenth Circuit to adopt the reasoning of another Ninth Circuit case, United States v. Alexander, 761 F.2d 1294 (9th Cir. 1985). In Alexander, the Ninth Circuit held that "a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect." Id. at 1301. The Tenth Circuit distinguished Alexander on the ground that "the warrant in Alexander specifically authorized the search of all buildings located at a particular street address." Dahlman, 13 F.3d at 1395. By contrast, the warrant in Dahlman merely described the location to be searched as two numbered subdivision lots. The court stated that such a description was ambiguous as to the scope of the area to be searched because it could refer to just the ground itself, or to the ground and buildings thereon, including residences. Id. The court concluded that the ambiguous warrant was inconsistent with the particularity requirements of the Fourth Amendment. Id. at 1396.
In Alexander, the warrant authorized the search of "all buildings, outbuildings, garages, yard areas, trash containers, storage areas and containers used in connection with or within the curtilage of said premises and buildings." Alexander, 761 F.2d at 1300. The issue was whether the warrant authorized a search of a trailer located on the premises.
Unlike the warrant in Dahlman, the warrant in the instant case is unambiguous. It authorizes the search of the main house and curtilage, and nothing more. Indeed, it could not authorize the search of additional property since the officer obtaining the warrant did not even know of the property's existence, and thus did not seek permission from the issuing judge to search it.
In support of its argument that the scope of the warrant included Defendant's residence, the government states that "the scope of the warrant to search is dependent upon the extent of the showing of probable cause. The command to search can never include more than is covered by the showing of probable cause to search." (Gov.'s Mem. at 10) (quoting United States v. Hinton, 219 F.2d 324, 325 (7th Cir. 1955). The government contends that because the probable cause for the warrant was based on Defendant's involvement in illegal drug distribution, there was probable cause to search Defendant's residence.
The court observes that the probable cause portion of the supporting affidavit erroneously stated that during the investigation of a possible clandestine lab at Defendant's previous residence on 2/10/04, officers "found numerous precursor chemicals indicative of methamphetamine production." (Affidavit for Search Warrant, third page.) In fact, in a hearing held before the Magistrate Judge on March 2, 2005, Detective Davis testified that he did not find any precursor chemicals at the residence. (Tr. 3/2/05, at 122). No arrests were made on that occasion, and the police left the chemicals in Defendant's carport where they were found. (Id. at 134-35.)
However, the warrant itself makes no mention of Defendant, although he is mentioned in the Affidavit for Search Warrant. Information in an affidavit may cure a defective warrant only when the affidavit and search warrant can reasonably be said to constitute one document. Dahlman, 13 F.3d at 1395. To reach that result, two requirements must be met: "[F]irst, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference." Williamson, 1 F.3d at 1136 n. 1 (quoting United States v. Leary, 846 F.2d 592, 603 (10th Cir. 1988)); 2 Wayne R. LaFave, Search and Seizure, § 4.5(a), at 566-67 (4th ed. 2004). See Groh v. Ramirez, 124 S. Ct. 1284, 1289 (2004) ("The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.").
In this case, Defendant's name does not appear at all in the warrant. While it is mentioned in the affidavit, no evidence was presented that the affidavit and warrant were physically attached at the time of execution. See Williamson, 1 F.3d at 1136 n. 1. Further, even if they were attached, the warrant does not meet the second requirement because it does not incorporate the affidavit by reference. Moreover, even if the two requirements were met, the court concludes that the fact that the affidavit refers to Defendant would not be sufficient to cure the defective warrant because the warrant so specifically describes premises other that the defendant's actual habitation. Accordingly, the court concludes that the warrant did not authorize the search of the property beyond the house and its curtilage.
C. Good Faith Exception
The government contends that even if the court finds that the warrant did not authorize the search at issue, the evidence should not be suppressed because it falls within the exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). Under Leon, "evidence seized under a warrant later found to be invalid may be admissible if the executing officers acted in good faith and with reasonable reliance on the warrant." Dahlman, 13 F.3d at 1397. In determining whether to apply the Leon exception, the "good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization." Dahlman, 13 F.3d at 1397 (quoting Leary, 846 F.2d at 607). In making this determination, the court assumes that the executing officers "have a reasonable knowledge of what the law prohibits." Leary, 846 F.2d at 607 (quoting Leon, 468 U.S. at 919 n. 20.)
As previously discussed, the Tenth Circuit in Williamson found the warrant at issue did not describe the area to be searched with sufficient particularity because it could not be described as even "practically accurate." Williamson, 1 F.3d at 1136. The court went on to hold that the government was not entitled to the "good faith" exception to the exclusionary rule. The court stated that "a warrant may be so facially deficient —i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid." Id. (quoting Leon, 468 U.S. at 923).
The court concludes that in the instant case, a reasonably well-trained officer would have known the search was illegal prior to entry of Defendant's residence. Detective Boyd testified that the officers learned of the additional property only when they viewed an aerial photograph after the warrant had already been obtained. At that point, the officers should have known that the warrant did not authorize the search of that property since the issuing judge was not even informed of its existence. When the officers learned of their mistake, assuming the existence of probable cause for the broader search, they could have obtained a warrant for the additional property. Instead, the officers did exactly what the Fourth Amendment was designed to prevent. They relied on their own discretion in deciding the area to be searched. Accordingly, the evidence should be suppressed.
D. Admissibility of the .22 Caliber Derringer
The government asserts that even if the court finds that the evidence seized should be suppressed, the .22 caliber derringer is admissible because it was found in plain view in the back of Defendant's pickup. Under the plain view doctrine, officers may seize an item if
(1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent — i.e., the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994);United States v. Corral, 970 F.2d 719, 723 (10th Cir. 1992); see Horton v. California, 496 U.S. 128, 136-37 (1990). In the instant case, the warrant did not authorize the officers to enter the property at issue. Thus, they were not lawfully in a position to view the derringer. Accordingly, the derringer was not subject to seizure under the plain view doctrine.
III. RECOMMENDATION
The search of Defendant's residence was outside the scope of the warrant. Accordingly, the motion to suppress should be granted. (Dkt. 55.)
It is further RECOMMENDED that pursuant to 18 U.S.C. § 3161(h)(1)(F) and (J), any order of the district judge regarding this Report and Recommendation should exclude from the computation of the Speedy Trial Act, the time from the filing of the Motion to Suppress through the date of entry of the order of the district judge.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.