Opinion
Case No. 5:05CR0438.
November 28, 2005
REPORT AND RECOMMENDED DECISION
Given the time constraints arising from the trial date of December 12, 2005 this Court has concluded that erudition must give way to expedience. Therefore, this decision will be quite abbreviated.
Having received the file on November 22nd this Court held the motion until this date to give the movant a week to submit a reply. In the event an objection is filed by defendant this Court suggests that in lieu of briefing, which could not be completed prior to December 12th, oral argument be held at the start of the trial proceedings and a bench ruling issued.
Defendant Perez Williams has moved to suppress "any evidence obtained during a search of the residence located at 1007 Hoover Place, N.W. by law enforcement officials on September 9, 2005," specifically identifying "two plastic bags containing a total of 7.92 grams of marijuana, one plastic bag containing five tablets of methylenedioxyamphetemine (MDA) in the total amount of 1.49 grams, and five plastic bags containing a total of 65.91 grams of cocaine base" as items to be suppressed.
The basis of this motion is two-fold — "the warrant was obtained despite a lack of probable cause supporting the issuance of the warrant, as the information contained in the supporting affidavit was stale" and that "the warrant failed to state the location to be searched with sufficient particularity."
The second of these contentions is based upon the fact that "Attachment A" to the warrant application and to the warrant itself, which on its face identified "1107 Hoover Place, N.W. Canton, Ohio" as the premises to be searched, reads:
The residence and any unattached buildings at 1107 Hoover Place NW, Canto, Ohio. This residence is described as a three story single family home with tan siding, white trim, and a brown shingled roof. The property has a driveway running along the East side of the residence. The residence has concrete walkway leading to four steps up to a front porch. The numbers "1104" are clearly affixed to the house to the right of the front door above the mailbox.
(Underscoring as in original.) Defendant maintains that the reference to the numbers "1104" in Attachment A is obviously a typographical error which does not render the warrant invalid, pointing out that the application on its face identified 1107 Hoover Place as the premises to be searched and that the supporting affidavit contained six references to the actual address (and none to 1104) in seeking authority to search, citing to "¶ 5, 9, 11, 12 and twice in ¶ 25."
In fact, there is a seventh such reference, the additional one appearing in ¶ 6 in which 1107 Hoover Place is shown as the address of the subject Perez Williams.
This Court finds the government's position to be sound, particularly in light of the clear physical description of the house in question, in both the application and the warrant, except for the erroneous identification of the house number affixed thereto, and does not believe that this subject warrants further discussion.
At first blush the defendant's contention as to "staleness" might appear to have some merit, in that the time frame of the events set out in the "Probable Cause" portion of the affidavit outlines: events occurring in March 2003 (¶¶ 10 and 11); information obtained from a confidential informant in September 2004 regarding events in "the spring of 2003" and March 2003 (¶¶ 16 and 17); information obtained from a second informant in June 2005 regarding a February 2005 drug deal (¶ 18); information obtained from a third informant in July 2003 regarding events around that time period (¶ 20); and information obtained from a fourth informant in September 2004 regarding events at that time (¶ 22) and again in May 2005 as to ongoing drug sales (¶ 23). Considering that the latest of those was some four months prior to the warrant application and that the earliest dated back about two and a half years one might be tempted to give credence to the defendant's position that the information was stale.
That temptation, however, vanishes in the face of the government's cogent argument that the application was not to search the Hoover Avenue property for drugs, unsupported by evidence that drugs might then be found on the premises. The application was, in fact, for authority to search for evidence of a "conspiracy with the intent to distribute cocaine," and described the evidence to be searched for/seized as tangible items reflective of such a conspiracy, rather than seeking authority to search for/seize any controlled substances.
In this Court's opinion, the fact that the events set out in the affidavit covered the time period in question established probable cause to search for evidence of an on-going drug operation, and does not undermine that probable cause on the ground of staleness.
Indeed, the seizure in question was not authorized under the warrant and, as articulated in the government's brief, the justification for that seizure is that during the execution of the warrant the controlled substances "were discovered in plain view in areas where officers had a right to be."
The defendant has not challenged this representation, and cannot deny the horn book proposition that law enforcement authorities may properly seize as evidence contraband in plain view in premises at which they have lawful authority to be present.
As this Court finds that the warrant rested upon probable cause and, therefore, lawfully authorized the officers to enter the premises at 1107 Hoover Avenue, it follows that this Court recommends that the motion to suppress be denied.
If in objecting to this recommendation movant raises an issue as to the circumstances under which the challenged evidence was seized the only option will be for a hearing thereon to be held at the outset of the trial proceedings.
OBJECTIONS
Any objections to this Report and Recommended Decision must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See, also, Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).