Opinion
Case No. 8:01CR168
January 31, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendant Jamie Eugene Tuggle's ("Tuggle") objection, Filing No. 19, to the report and recommendation of Magistrate Judge Kathleen Jaudzemis, Filing No. 18. In her report and recommendation, Magistrate Judge Jaudzemis recommends that this court deny Tuggle's motion to suppress, Filing No. 10. Pursuant to 28 U.S.C. § 636(b)(1)(c), this court has conducted an independent and de novo review of the record, including the transcript of the evidentiary hearing held on October 3, 2001, Filing No. 17.
BACKGROUND
On May 5, 2001, at approximately 3:24 p.m., Kearney Police Officer Derek Luke was dispatched to a house located at 2806 Avenue N, Kearney, Nebraska, to investigate a report of stolen property. When Officer Luke arrived at approximately 3:30 p.m., he was greeted by Ann Gintzler, the landlord/owner of the house and the alleged victim of the theft. The front door of the house was open and four or five individuals were in and around the house.
Ms. Gintzler gave Officer Luke a copy of a lease signed April 27, 2001, by defendant Tuggle, Bessie Timmerman, and Mike Gintzler. Ms. Gintzler informed Officer Luke that the tenants had paid a damage deposit but had not paid any rent. She also advised the officer that the tenants moved in on May 1, 2001. Ms. Gintzler then informed Officer Luke that on May 3, 2001, she asked Timmerman to move out of the house.
Mike Gintzler is the ex-husband of Ann Gintzler.
According to the terms of the lease, rent is payable in advance on the first day of each month. The payments "MUST be made no later than the 5th day of each month." Any late or partial payments "will be considered TENANT'S notice to vacate premises within 3 days." Filing No. 16, Ex. 1 (emphasis in original).
Ms. Gintzler reported that she arrived to show the house to prospective tenants and the locks had been changed. In an effort to gain entry, Ms. Gintzler had a friend force open the doors. Once in the house, Ms. Gintzler noticed property that belonged to her. According to Ms. Gintzler, the property had been stored in a locked garage located behind the house. She went through the house, gathered up all the allegedly stolen property and placed it in boxes by the door. According to Officer Luke, Ms. Gintzler indicated that she had gone through "the entire house." Filing No. 17 at 36:2. However, Ms. Gintzler did not specifically indicate where in the house she had located the items.
Ms. Gintzler also informed Officer Luke that she noticed a substantial number of drug-related items in the house. Ms. Gintzler requested that Officer Luke remove all the drug paraphernalia. Officer Luke stated that there were several items visible from the main door of the house. Officer Luke testified that he placed drug paraphernalia that he could see in plain sight in a box.
While Officer Luke collected items of drug paraphernalia, Corporal Shanafer, Officer Dowling, and Officer Young arrived at the house. Corporal Shanafer discussed getting a search warrant with Officer Luke. Officer Luke decided to put all the confiscated items back in the house. After a conversation with a county attorney, however, the officers again collected the items and continued to look through the house. Filing No. 17 at 19:2-11.
Officer Greg Urbanek, the shift supervisor, arrived at the house around 5:30 p.m., nearly two hours after Officer Luke's arrival. According to Officer Urbanek, when he arrived the handyman, Anthony Cooper, informed him that he should "make sure [to] get all of the stuff out that's upstairs and to check the closets upstairs." Filing No. 17 at 52. Because the officers thought that all the visible paraphernalia represented only misdemeanor infractions, they decided to proceed without securing a search warrant.
Officers Luke and Urbanek went upstairs and joined other officers in the attic to collect drug-related items. Officer Urbanek noticed several bongs, a scale, and a glass dish containing a white powdery substance. Officer Urbanek decided to search the closets in the room. When he opened one of the closet doors, he found a blue duffle bag on the floor. He took the duffle bag out of the closet and noticed some plastic tubing through a two-inch opening in the bag. Officer Urbanek opened the bag four inches more and confirmed that the bag contained dirty plastic tubing.
At around 6:20 p.m., Officer Luke conducted a field test on the white powdery substance. The residue tested positive for methamphetamine. Officer Urbanek testified that because of propane canisters found by another officer and dirty tubing, he was concerned that chemicals were present in the house. For this reason, he evacuated the house. The warrantless search lasted nearly three hours.
At that point, Officer Urbanek told Officer Luke to draft an affidavit and application for a search warrant. Ex. 13. In the affidavit, Officer Luke noted that he "was told to go upstairs and look at the drug items." Based on the application and affidavit, a search warrant was issued. The officer found more than twenty items of chemistry glassware in the duffle bag. The officers completed the search sometime after 10:00 p.m. on May 5, 2001. All suspected methamphetamine was sent to the Nebraska State Patrol Laboratory. An arrest warrant was issued for James Tuggle. Tuggle was arrested in Utah and extradited to Buffalo County on June 18, 2001. Investigator Cordova interviewed Tuggle on June 18, 2001, at the Buffalo County Detention Center.
During the evidentiary hearing before Magistrate Judge Jaudzemis, Tuggle testified that he moved into the house at 2806 Avenue N on May 1. He also stated that Ms. Gintzler did not inform him that he was evicted. Instead, Tuggle claims she told him and his co-tenants that she would be in town on May 5, 2001. Tuggle did admit to changing the locks on the door to the house.
In his motion to suppress, Tuggle argues that the search of the house by the officers exceeded in scope the private search of Ms. Gintzler and/or her handyman. Further, Tuggle contends that his subsequent statements should be suppressed as fruit of the poisonous tree. In response, the government argues that Ms. Gintzler had apparent authority to consent to the search and that the search by law enforcement did not exceed the scope of the private search. Magistrate Judge Jaudzemis recommends to this court that the motion to suppress be denied. Magistrate Judge Jaudzemis found that the inspection of the attic closet did not exceed the scope of the private search. She further found Officer Urbanek's belief that harmful chemicals were present created exigent circumstances that justified him opening the bag.
DISCUSSION
Implicating the Fourth Amendment
Initially, a determination must be made whether the Fourth Amendment was implicated during the search of the residence. The government argues that the officers did not extend their search beyond the private search of Ms. Gintzler and Mr. Cooper. Tuggle contends that the officers' search extended beyond the scope of the private search and therefore implicated the Fourth Amendment. Magistrate Judge Jaudzemis found that the search of the house, including the upstairs closet, was within the scope of the private search and the subsequent search of the duffle bag was necessary due to exigent circumstances.
The "Fourth Amendment's protection against unreasonable searches and seizures is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." United States v. Mithun, 933 F.2d 631, 633 (8th Cir. 1991) (citations omitted). To be a Fourth Amendment search, the government must intrude on an individual's legitimate expectation of privacy. See United States v. Miller, 152 F.3d 813, 814 (8th Cir. 1998). When a private search occurs, an individual's expectation of privacy is not frustrated. Therefore "an ensuing police intrusion that stays within the limits of the private search is not a search for Fourth Amendment purposes." Id. (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus, the inquiry "must be whether the government undertakes any new or different searches when they make a separate inspection" and by the degree to which the government agent "exceeded the scope of the private search." United States v. Haes, 551 F.2d 767, 770 (8th Cir. 1977) ; United States v. Rouse, 148 F.3d 1040, 1041 (8th Cir. 1998).
Here, the record establishes that Ms. Gintzler and Anthony Cooper's search included the open areas of plain view inside the house. Thus, the officers' seizure of drug-related items in these areas of the house, including the upstairs, did not implicate the Fourth Amendment. According to Officer Luke, Ms. Gintzler informed him that she had "gone through the entire house" looking for stolen items and noticed drug-related items throughout the house. Filing No. 17 at 36:2. Ms. Gintzler placed the alleged stolen items in boxes by both the front and back doors of the house. As indicated by the testimony of Officer Luke and the photographs of the residence, an individual must walk by each room on the main floor to get from the front door to the back door. Also, Officer Urbanek testified that the handyman, Anthony Cooper, instructed him to "make sure [you] get the stuff out that's upstairs and [to] check the closets upstairs." Filing No. 17 at 52. Finally, Officer Luke stated in the affidavit in support of the search warrant that he was told "to go upstairs and look at the drug items." Filing No. 16, Ex. 13. These statements indicate that Ms. Gintzler and Mr. Cooper had walked through the open areas of the house in search of stolen items.
The government argues that the search of the closets and bag did not implicate the Fourth Amendment because it was in the parameters of the private search. However, it is not apparent from the record that the contours of the private search included any areas beyond the open areas of the house in plain view. In United States v. Miller, a staff member at a mental health facility entered a resident's room during his absence and saw drug-related items in plain view. Miller, 152 F.3d at 814. When the officers arrived at the facility, they confiscated the items in the room. The Miller court denied the motion to suppress, specifically noting that "the officers saw what [the staff] had seen, and nothing more" while in Miller's room. Id. The Miller decision supports the conclusion that there must be evidence that the specific area or item searched by the officers was first searched by a private individual.
In United States v. Miller , the court noted that in United States v. Paige , 135 F.3d 1012 (5th Cir. 1998), the Fifth Circuit declined to extend the private search rule to searches involving private residences. 152 F.3d at 816. In Paige , the Fifth Circuit held that an officer's search in the scope of a prior private search is lawful only when the private individual's intrusion was reasonably foreseeable. Miller, 135 F.3d at 816 (citing Paige , 135 F.3d at 1020). In Miller , the Eighth Circuit stated that it would "neither adopt nor reject the Fifth Circuit's rule because the police search in this case would pass muster" under Paige . Miller , 152 F.3d at 816.
According to the record, Mr. Cooper's reminder to the officer to search the closets is the only reference to the closets by the individuals involved in the private search. His statements are insufficient to support a finding that he, or Ms. Gintzler, in fact searched all the closets prior to the officers' arrival. Moreover, during the evidentiary hearing, Officer Luke testified that Ms. Gintzler "did not tell me where she found each [stolen] item." Filing No. 17 at 36-37. When asked whether Ms. Gintzler had indicated "whether she found the item in, for example, a closet or a duffle bag or anything like that," Officer Luke responded, "[s]he did not tell me that." Id. Moreover, the alleged stolen items confiscated by Ms. Gintzler included a chair, fan, table and a lamp. Ex. 4. These items are routinely found in open areas of a house, not the closets, drawers, cabinets or locked areas of the house.
Based on the record, this court finds the private search did not extend to areas beyond the open areas in the house. Thus, Tuggle retained an expectation of privacy in his closets and bags and the officers' search and/or seizure of any item in this area of the house implicated the Fourth Amendment. See Walter v. United States, 447 U.S. 649, 656 (1980) (the Fourth Amendment "requires that the scope of every authorized search be particularly described"). Accordingly, Tuggle's motion to suppress is granted as to all items found by law enforcement (i.e. excluding items found by the landlord or her staff) from the upstairs closets.
Landlord Consent
Next, this court must determine whether any exceptions justified the warrantless independent search of Tuggle's closets and bag. The government argues that Ms. Gintzler had actual or apparent authority to consent to the search of the house, because Tuggle had abandoned the property when he violated the lease agreement. Tuggle contends that Ms. Gintzler lacked authority to consent.
This court agrees with Magistrate Judge Jaudzemis that Tuggle did not abandon the property. According to the record, the rent was not due until May 5, 2001, the day of the search. Tuggle had a sufficient amount of personal property in the home, especially considering that Tuggle had resided at that address for only one week. Thus, because Tuggle did not abandon the residence, Ms. Gintzler did not have the authority to consent to the search. See United States v. Kelly, 551 F.2d 760 (8th Cir. 1977) (discussing specific limitations to a landlord's ability to consent to search of leased premises).
Further, Officer Luke did not have sufficient information that to conclude that Ms. Gintzler could consent to the search of the home. The relevant inquiry is "whether the facts available would have justified a reasonable officer in the belief that the consenting party had authority over the premises." United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997). Here, Ms. Gintzler provided Officer Luke with a copy of the lease. According to the lease, Tuggle entered into an agreement to lease the property on April 27, 2001. Although the lease stated that Tuggle could not change the locks without permission, it does not indicate that such a violation constitutes a basis for immediate eviction which would provide a reasonable claim that the landlord had the right to consent to a search of Tuggle's premises. The lease provides that any violation of its terms constitutes a default thereby allowing the landlord to give the defendant a three-day notice to evict. Here the landlord called the police the day she noted the alleged violation of the lease. Thus, these facts, along with the facts noted above, are insufficient to establish a belief that Ms. Gintzler had authority over the premises. See Chapman v. United States, 365 U.S. 610, 616 (1961). Inevitable Discovery
The government argues that because the drug-related items in plain view were sufficient to establish probable cause to secure a warrant, the evidence found in the bag would have inevitably been discovered. This court disagrees.
The inevitable discovery doctrine is applicable when the government can prove by a preponderance of the evidence that
(1) there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police conduct; and (2) that the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation.United States v. Madrid, 152 F.3d 1034, 1036 (8th Cir. 1998). When, at the time of the illegal discovery, the police have not yet started to pursue an alternative procedure that would have also uncovered the evidence, the government must prove that they would have in fact pursued the procedure regardless of the illegal discovery. Murray v. United States, 487 U.S. 533 (1988) (the decision to seek a warrant must not be prompted by what had been seen during the illegal search).
Here, the officers did not decide to secure a warrant until after they found the evidence in the duffle bag located in the closet. Officer Urbanek testified that finding the blue bag "changed everything" and that the result of the discovery of paraphernalia was only an infraction and did not provide incentive to secure the warrant. Filing No. at 73-74. This testimony is evidence that the officers would not have secured the warrant if they did not discover the tubing in the blue duffle bag located in the closet. See Murray, 487 U.S. at 533. Further, the testimony suggests that the officers were not attempting an alternative legal avenue to search and/or seize evidence in the house. Thus, the government failed to prove by a preponderance of the evidence that the evidence in the closet would have inevitably been discovered by an alternative means.
Subsequent Statements
Tuggle argues that any statements made should be suppressed as "fruit of the poisonous tree." In response, the government contends that there is a sufficient lapse of time between the search and the statements.
Tuggle's statements to law enforcement were sufficiently attenuated as to purge the taint of the illegal search of the closet. Under the "attenuated connection doctrine, the challenged evidence is admissible if the causal connection between the constitutional violation and the discovery of the evidence is so attenuated as to rid the taint." United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001). Here, the record reflects that there was ample evidence of illegal substance abuse exclusive of the evidence found in the upstairs closet to warrant the defendant's arrest. In the upstairs living area in the open areas, officers found, among other things, a scale, propane torch, a white powdery residue on a glass dish, and a small glass tubing connector. All of these items indicate that Tuggle was using illegal controlled substances and were a sufficient basis for Tuggle's arrest. Further, the defendant was arrested some forty-five days later whereupon he made voluntary statements concerning his use and manufacture of methamphetamine.
Moreover, the record is clear that the defendant does not dispute that his statements were voluntary and that his Miranda rights were given prior to his statements. Filing No. 17 at 4. The causal chain between an illegal search and a subsequent statement is broken "if the statement is sufficiently an act of free will to purge the primary taint." Wong Sun v. United States, 371 U.S. 471, 486 (1963). There is no per se rule that Miranda warnings "always . . . break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." Brown v. Illinois, 422 U.S. 590, 603 (1975). A Miranda warning, however, is one important factor to consider in determining whether a confession is obtained by exploitation of an illegal arrest. United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994).
Thus, the court finds that there was a sufficient lapse of time between the search and the defendant's statements, as well as significant untainted evidence to find that the defendant's statements are not "fruit of the poisonous tree."
IT IS THEREFORE ORDERED:
1. The defendant's objections, Filing No. 19, to the magistrate's report and recommendation are sustained in part and overruled in part;
2. The magistrate's report and recommendation, Filing No. 18, is rejected insofar as it found the scope of the private search extended to items found in the upstairs closet;
3. The magistrate's report and recommendation is otherwise accepted; and,
4. The defendant's motion to suppress physical evidence, Filing No. 10, is granted in part as outlined in this order.
January, 2002. Joseph F. Bataillon, United States District Judge