Opinion
No. 4:01-cr-044.
November 20, 2001
MEMORANDUM
The defendant's motion to suppress [Court File No. 15] contests the validity of a search conducted at 2865 Decherd Boulevard, Franklin County, Tennessee, on May 2, 1999.
Facts
The affidavit for the warrant was prepared by Officer Tommy Brazelton, who at the time was an officer with the Winchester, Tennessee Police Department. The operable part of the warrant affidavit read as follows:
I, Affiant, received information from a confidential informant who has proved him/herself reliable by giving Affiant information in the past that has resulted in the arrest and convictions of one (1) person for the possession of methamphetamine. The informant has been present at 2865 Decherd Boulevard on several occasions within the past thirty (30) days and has observed glassware commonly associated with the manufacture of methamphetamine, i.e., triple neck flask and condensers. The informant also stated that they have seen methamphetamine being manufactured using this glassware in a white building behind the residence.
Although Officer Brazelton stated in the affidavit only that the informant had been at the target residence "on several occasions within the past thirty (30) days," he had information that the informant had been in the residence approximately four hours before calling Brazelton late in the afternoon of May 2, 1999. This additional information was not, however, placed in the affidavit. In addition, Sergeant Danny Mantooth, also with the Winchester Police Department, received a call from another informant, whom he knew to be reliable, who had seen a methamphetamine laboratory in a shed outside the target residence in the last several weeks, and had seen two people that very day, May 2nd, "separating ephedrin" at the residence. Inexplicable, the officers neglected to put this supplemental information in the affidavit.
When the affidavit prepared by Brazelton was submitted to a state judge, the judge signed it at 6:05 p.m. on May 2nd without asking any questions. The warrant was executed shortly thereafter. Officers found defendant and equipment comprising a methamphetamine lab at 2865 Decherd Boulevard. 2865 Decherd Boulevard was a residence belonging to one Anne Claire Brooks. Defendant Smith had occasionally stayed there overnight during the last several months. He had also stayed overnight at two other locations. Defendant had a key to the house for awhile. After that, he had a garage opener which gave him access to the house. He kept some clothes at the Brooks residence. He had not stayed there overnight for the six or seven days prior to the date of his arrest. Defendant and Brooks had no sexual relationship. They were just good friends. Defendant was permitted access to the house because he could manufacture and supply methamphetamine to Brooks. Both defendant and Brooks were addicts. At the time of the arrest on May 2, 1999, defendant was making methamphetamine. Doubtless some of the product would go to Brooks.
Analysis
There is an issue here whether the defendant has standing. An overnight guest has an expectation of privacy. Minnesota v. Olsen, 495 U.S. 91, 99-100 (1990). Defendant was an occasional overnight guest, but not on May 2, 1999, the day of the search. He was, however, a daytime guest on the day of his arrest. Furthermore, the defendant was not using the Brooks residence purely for commercial purposes along the lines of Minnesota v. Carter, 525 U.S. 83 (1998). True, he was making methamphetamine to share with Brooks — and perhaps others. However, his purpose for being in the residence was a mutual addiction more than just a brief trip to manufacture methamphetamine for commercial purposes. The Court, therefore, concludes that the defendant did have an expectation of privacy in 2865 Decherd Road, and may properly claim the protection of the Fourth Amendment.
The question, therefore, becomes whether there was probable cause for issuance of the warrant; and if not, should the defendant's motion nonetheless be denied because the officers acted in objective good faith under United States v. Leon, 468 U.S. 897 (1984).
In United States v. Allen, 211 F.3d 970 (6th Cir. 2000), the Sixth Circuit Court of Appeals said that:
We hold that where a known person, named to the magistrate, to whose reliability and officer attests with some detail, states that he has seen a particular crime and particular evidence, in the recent past, a neutral and detached magistrate may believe that evidence of a crime will be found.
Id. at 976 (emphasis in original).
The problem with Officer Brazelton's affidavit is that it does not on its face present information that he had seen a particular crime and particular evidence in the recent past. That the informant had seen equipment used to make meth "on several occasions within the past thirty (30) days" is not timely information, especially given the undisputed fact that methamphetamine laboratories are very mobile. The Court must reach the conclusion that Officer Brazelton's affidavit does not amount to probable cause for the issuance of the warrant. This is true even though there are some cases where evidence is not nomadic and therefore does not require immediately fresh information. See United States v. Green, 250 F.2d 471, 480 (6th Cir. 1001); United States v. Spikes, 158 F.3d 913, 923-24 (6th Cir. 1998). If one looks at the warrant itself, the information could have been as much as thirty days old.
The issue then becomes whether the Leon good faith exception applies here. This is a close question. The officers had timely information which they could have placed in the affidavit. This information, if it had been concluded, would clearly have provided probable cause for the issuance of the warrant. For some unknown reason, however, the officers failed to put this information in the warrant.
The Leon good faith exception clearly focuses on the contents of a search warrant. Pursuant to Leon, law enforcement officers may rely on warrants issued by judges if the probable cause determination is objectively reasonable. 468 U.S. at 922. However, according to Leon:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
Leon, 468 U.S. at 926.
There is no contention here that the state judge was not detached and neutral, although he could have asked, and probably should have asked, some questions about the facts when Officer Brazelton presented him with the affidavit. However, here the officers were reckless in omitting from the affidavit much of what they knew. Because of this recklessness and because the affidavit clearly on its face does not objectively amount to probable cause, the Court finds that Leon does not apply here.
The motion to suppress will be GRANTED. A separate order shall enter.
ORDER
For the reasons expressed by the Court in its memorandum filed herewith, the defendant's motion to suppress [Court File No. 15] contesting the validity of a search conducted at 2865 Decherd Boulevard, Franklin County, Tennessee, on May 2, 1999, is GRANTED.
SO ORDERED.
ORDER
By agreement of the parties, the defendant's motion to suppress [Court File No. 17 regarding the fruits of a search conducted at Room 26, Rolling Acres Motel, Cowan, Tennessee, on July 13, 1998, is hereby GRANTED.