Opinion
Case No. 2:00-CR-590C
May 9, 2001
ORDER
Defendants Jeffrey Wayne Winters and Janiece Winters seek suppression of evidence found during a search of their residence. The search was executed pursuant to a warrant. Although the court concludes that the search was not supported by probable cause, Defendants' motions to suppress are denied on the ground that the good-faith exception to the exclusionary rule applies.
FINDINGS OF FACT
On October 19, 2000, Detective Jimmie A. Fowers of the Summit County Sheriff's Department was contacted by another officer from the Summit County Sheriff's Department, Sergeant Kyle Lewis. Lewis told Fowers that the day before, he had received information from two individuals about suspicious activity at a residence at 9281 Cottonwood Trail Road, Park City, Utah. (This is the residence where the Winters were residing and was the residence which was searched. It will hereinafter be referred to as the "Winters' residence.")
The next day, October 20, 2000, Fowers and another officer from the Summit County Sheriff's Department, Detective Brad Wilde, met the two individuals at their residence. The two individuals asked Fowers not to reveal their names. Consequently, throughout the affidavit filed in support of the search warrant, Fowers referred to the two individuals as "confidential informants." There is no evidence, however, that these confidential informants were engaged in criminal activity, and would more properly have been described as "concerned citizens."
During the meeting, the two confidential informants gave Fowers information about the Winters' residence and activity that they had witnessed there. Fowers also took three photographs of the Winters' residence. (These were attached to the affidavit filed in support of the search warrant.) Several days later, Fowers again spoke to one of the confidential informants by telephone to clarify some of the information.
Based on the information given him by the confidential informants, Fowers, with the assistance of Deputy County Attorney Mary Wolsey, prepared an affidavit and a proposed search warrant for the Winters' residence. Wolsey took part in both the drafting and review of the affidavit.
In the affidavit, Fowers recited that the following established grounds for the issuance of the warrant:
1. On the 19th day of October, 2000, your affiant was contacted by Sgt. Kyle Lewis of the Summit County Sheriff Office. Sgt. Lewis advised your affiant he had received information through Confidential Informant #1 [hereinafter "CI#1"] that there was suspicious activity at the Cottonwood Trail residence. In addition, CI#1 identified the subjects living within the Cottonwood Trail residence as Jeffrey and Janiece Winters.
2. Based on that information, your affiant contacted CI#1, who advised your affiant that on October 19, 2000, (s)he had been in the detached garage at the Cottonwood Trail residence and noticed a strange odor emanating from that building. In a subsequent interview with your affiant, CI#1 described this odor as having a "chemical" smell. CI#1 also advised that (s)he has observed a lot of vehicle traffic at the Cottonwood Trail residence. In particular, CI#1 has seen cars traveling to the Cottonwood Trail residence late at night and remaining parked there until the early morning hours. CI#1 has also noticed that both interior and exterior lights at the Cottonwood Trail residence remain on until approximately 0500 hours.
3. CI#1 also advised your affiant that (s)he was outside the Cottonwood Trail residence during the evening of October 17, 2000. At that time CI#1 could see that the Cottonwood Trail garage door was open, and was able to observe activity both inside and outside that garage.
4. On another occasion, CI#2 heard a loud "boom" come from within the Cottonwood Trail residence, whereupon five (5) males ran from inside the home to the detached garage.
5. Your affiant would assert that I have been a law enforcement officer for approximately ten (10) years. During that time, your affiant has investigated numerous cases involving narcotics, including the manufacture and distribution of the controlled substance methamphetamine. In addition, your affiant has attended numerous trainings relating to the investigation of controlled substances, including the controlled substance methamphetamine, and have attended a clandestine methamphetamine laboratory training. Based upon that training and experience, your affiant is aware that the chemicals used in the manufacture of methamphetamine are of a combustible and hazardous nature, the combination of which may result in explosion.
6. In addition, your affiant would assert that the production of methamphetamine typically requires more than one individual to complete the "cooking" process, and that methamphetamine "cooks" often produce methamphetamine at unusual hours, particularly in the evening. Moreover, your affiant is aware that the production of methamphetamine generally creates a distinct odor which is of a chemical nature.
7. Your affiant considers the information from the confidential informants to be reliable because your affiant has conducted a background check on the residents of the Cottonwood Trail residence, said names having been given to me by CI#1. After checking these criminal histories, your affiant discovered that on June 24, 1999, both Jeffery and Janiece Winters were arrested by the South Salt Lake Police Department for Possession of Clandestine Lab and Possession of Controlled Substances, those being Heroin, Cocaine, Methamphetamine, and Marijuana, as well as a Drug Paraphernalia charge, and that these cases are still pending in the Salt Lake County Third District Court. Your affiant would assert that, given the suspects' alleged prior involvement with methamphetamine production, and the fact that the activity and odors described by CI#1 and CI#2 are consistent with the production of methamphetamine, that said informants are reliable.
8. Your affiant asserts that it is necessary to serve said warrant in the nighttime, without the necessity of announcing the officers' presence or intentions, inasmuch as evidence relating to the production of methamphetamine is of a hazardous nature, and also due to the ease with which said evidence may be concealed, destroyed, damaged, or otherwise altered. Moreover, at the time suspects Jeffery and Janiece Winters were arrested in the aforementioned South Salt Lake felony case, numerous firearms and surveillance equipment, including night-vision equipment, were located among the evidence seized. Your affiant would assert that, on the Cottonwood Trail residence, a telescope is presently located on the front deck of said residence, which might alert the Cottonwood Trail residents of the officers' approach.
9. Moreover, your affiant was advised by CI#1 that two Rottweiler dogs live at the Cottonwood Trail residence, and that one of these dogs has attacked CI#1 on one occasion.
(Aff. for Search Warrant.)
On October 24, 2000, Fowers took the affidavit and proposed search warrant to Judge Robert K. Hilder of the District Court, Summit County, State of Utah. Judge Hilder reviewed the materials for approximately ten minutes and then signed the proposed search warrant. The warrant authorized a search of the Winters' residence for controlled substances, including methamphetamine, and equipment and chemicals used to manufacture methamphetamine. The warrant was a "No-Knock Warrant," that is, it permitted the search to occur "at anytime, day or night, without notice of authority or purpose." (Search warrant, enclosed with letter of January 4, 2001, to court.)
CONCLUSIONS OF LAW
The Winters make a number of arguments in support of their contention that the search of their residence violated the Fourth Amendment: First, that Fowers made false statements and knowingly omitted information in the affidavit for the search warrant; Second, that the affidavit does not establish probable cause; Third, that in light of Fowers' false statements and omissions, the good-faith exception described in United States vs. Leon, 468 U.S. 897 (1984), does not apply; and finally, the issuance of a "No-Knock Warrant" was improper.
I. False Information
Defendants contend that Officer Fowers made misrepresentations and omitted information in the affidavit filed in support of the search warrant. According to Defendants, these misstatements and omissions were knowingly or recklessly made, and if the affidavit were purged of the false statements and included the correct information, the affidavit would not support a finding of probable cause.
Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant must make
a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.___
Id. at 155-156. "The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." United States v. Tisdale, No. 99-3379, 2001 WL 378263, at *6 (10th Cir. Apr. 16, 2001); United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). "Allegations of negligence or innocent mistake are insufficient" to give rise to a Franks violation. United States v. Owens, 882 F.2d 1493 (10th Cir. 1989). A defendant must demonstrate that the police officer who drafted the affidavit in support of a search warrant request "in fact entertained serious doubts as to the truth of his allegations." Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991). Additionally, if a defendant succeeds in showing the willfullness or recklessness of an omission, the "omission must . . . be 'necessary to the finding of probable cause' in order for the fruits of the search to be suppressed." Tisdale, 2001 WL 378263, at *6, quoting Franks, 438 U.S. at 155.
Jeffery Winters has submitted an affidavit in support of his argument that a hearing should be held to challenge the veracity of the affidavit. In the affidavit, Mr. Winters makes a number of conclusory allegations. For example, Mr. Winters states "I believe that specific facts were known to law enforcement that my wife [and] I were in the process of moving into the residence." (Aff. of Winters at 4, attached to Def.'s Supplemental Pretrial Mem.) Winters contends that the move was still ongoing at the time of the events described in Fowers's affidavit, and it was the fact of the move that caused the traffic, late hours, and lights referred to in the affidavit in support of the warrant. (See id.) Other than an initial statement that he has reviewed the police reports in the case (see id. at 3), Winters does not point to what "specific facts" give rise to his belief that Fowers knew this information and purposefully excluded it from the affidavit.
In his affidavit, Winters disputes that a confidential informant was close enough to his garage to smell an unusual odor there and further contends that "the smell was more likely a gasoline smell." (Id. at 5.) Similarly, Winters explains that the large "boom" referred to in the affidavit was caused by "persons inside the garage dealing with gasoline . . ." (Id. at 6.) Again, other than stating his personal belief and opinion, Winters points to no evidence or facts that would show that the statements in the affidavit concerning the smell in the garage or the loud "boom" were incorrect, much less known to be false. Winters is simply giving another explanation for the events recounted in the affidavit.
Finally, Winters claims that there were "important facts known to law enforcement" which should have been disclosed to the issuing magistrate, and that the confidential informant had a personal interest to give false testimony, "including a potential monetary gain if the informant was the landlord of the property." (Id. at 7-8.) Winters provides no facts in support of this claim.
Fowers testified at the Hearing on the Motion to Suppress and was cross-examined by defense counsel about the accuracy of various statements in the affidavit. When questioned about the "chemical" smell coming from the Winters' garage reported by one of the confidential informants — a smell which, as discussed above, Winters stated was "a gasoline smell" — Fowers described what the confidential informants told him about the smell: "The way it was described to me is it wasn't consistent with what normally would be in a garage." (Tr. at 28.) Fowers also testified that he was not told that the generator in the garage was gasoline-powered. (Id.) With regards to the activity observed inside and outside the garage during the evening of October 17, 2000, Fowers denied that the confidential informant had told him that the residents of the Winters' residence had been working on vehicles in the garage area. (Id. at 32.) Finally, Fowers testified that he was told that the Winters had moved in on approximately October 1, 2000, and that he had no information that the process was still on-going when he spoke to the confidential informants on October 20. (Id. at 25-26.)
Although this was not a hearing contemplated under Franks to challenge the veracity of the affidavit once a defendant has made the necessary preliminary showing, the government did not object to defense counsels' questioning of Fowers.
Much of the Defendants' argument focused on the statements concerning vehicle traffic at the residence. According to the Defendants, use of the word "traffic" was misleading and was placed in the affidavit because of the association of the word with drug activities. During his testimony, Fowers seemed to concede that the vehicle traffic may have taken place on only one occasion: "On more than one occasion-and I believe this was specifically referring to one occasion, there were several vehicles there at one time." (Id. at 39.) Fowers also admitted that, as regards his statement in the affidavit that two rottweiler dogs at the Winters' residence had "attacked" one of the confidential informants, the confidential informant had actually told him that one of the dogs had barked at him and he was afraid that the dog would bite him. (Id. at 33.)
Based on the above, the court concludes that any mistakes in the affidavit in support of the warrant were insubstantial and that the Winters has failed to demonstrate that Fowers intentionally or recklessly disregarded the truth. Winters has not shown that Fowers "in fact entertained serious doubts as to the truth of his allegations," Bruning, 949 F.2d at 357, or that any errors or omissions were the result of anything greater than negligence.
II. Probable cause
The Fourth Amendment prohibits the issuance of a warrant except upon probable cause. See United States v. Brown, 984 F.2d 1074, 1076 (10th Cir. 1993). Probable cause requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). A judge's task in determining whether probable cause exists to search a search warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983), quoted in United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001). A judge's decision to issue a warrant is "entitled to 'great deference' from the reviewing court." Id.; United States v. Le, 173 F.3d 1258, 1265 (10th Cir. 1999). The reviewing court must only ask "whether, under the totality of the circumstances presented in the affidavit, the [judge] had a substantial basis for determining that probable cause existed." Tuter, 240 F.3d at 1295 (internal quotations omitted).
When a confidential informant is the source of the information presented in an affidavit, the affidavit must contain information supporting the veracity, reliability, or basis of knowledge of the informant, or must provide corroboration of the informant's allegations. See id.; Brown, 984 F.2d at 1077. Here, of course, the confidential informants were not involved in criminal activity, but still, were unnamed. The affidavit does make clear that the basis of the confidential informants' information was personal observation. For example, the affidavit recites that the confidential informants had been in the detached garage, had seen vehicle traffic (although, as described above, this description should be narrowed to several cars on one occasion), had smelled the chemical odor, and had heard the "loud boom." Therefore, it is reasonable to infer that the confidential informants had firsthand knowledge about the activity recited in the affidavit. "[E]xplicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [a confidential informant's] tip to greater weight than might otherwise be the case." See Gates, 462 U.S. at 234.
Here, however, the information received from the informants was not "explicit and detailed," nor does it necessarily describe "wrongdoing." When the statement concerning "a lot of traffic" is edited, as described, from the affidavit, what is left is, essentially, a description of a chemical smell coming from the garage, activity inside and outside the garage, and, on another occasion (with no time specified), a loud boom coming from the garage and five men running towards the garage. In addition, Fowers stated in the affidavit that the Defendants had been arrested on June 24, 1999, on drug charges, including possession of a clandestine laboratory. Further, Fowers stated that in his expertise, which he detailed, chemical odors, explosions, and the late hours were consistent with methamphetamine production.
When all the evidence in the affidavit is considered, the court must conclude that the affidavit was not sufficient to establish probable cause that the items subject to the search warrant would be found at the Winters' residence. See United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000) (finding that the affidavit did not establish probable cause between the alleged criminal activity, methamphetamine production, and the defendants' residence).
III. Application of the Leon Good-Faith Exception
Even though the search warrant in this case is not supported by probable cause, the good-faith exception enunciated in United States v. Leon, 468 U.S. 897 (1984), might still permit introduction of the evidence discovered in the Winters' residence. Evidence seized under an invalid search warrant "need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral [judge]." Danhauer, 229 F.3d at 1006. In assessing the good-faith exception, the court's "inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n. 23, quoted in United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989). "This determination is to be made taking into account 'all of the circumstances,' . . . and assuming that the executing agents 'have a reasonable knowledge of what the law prohibits.' Id., quoting Leon, 468 U.S. at 920 n. 20.
The Supreme Court has identified four situations in which the good-faith exception to the exclusionary rule does not apply. See id. at 922-23.
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth. . . . Second, the exception does not apply when the issuing magistrate wholly abandons her judicial role. . . . Third, the good-faith exception does not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. . . . Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
Danhauer, 229 F.3d at 1007 (internal citations and quotations omitted).
As to the first situation, as discussed above, the Defendants have not demonstrated that Fowers willfully or recklessly included or omitted pertinent information from his affidavit. As to the second situation, the Defendants have not demonstrated that Judge Hilder "wholly abandoned his judicial role." To the contrary, the evidence indicates that Judge Hilder reviewed the information presented to him, including Fowers' affidavit, for ten minutes, and did not simply act as a "rubber stamp" for the warrant request. Finally, as to the third and fourth situations, Defendants have failed to demonstrate that Fowers's affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in the existence of probably cause completely unreasonable. The information from the two witnesses described suspicious sounds, smells, and activity at the Winters' residence. Although insufficient to establish probable cause, the activity described by the witnesses was, in Fowers's experience, consistent with the activity that might occur at a methamphetamine laboratory. (See Aff. for Search Warrant at ¶¶ 5-6.) Moreover, the fact that a county attorney helped Fowers prepare and review the affidavit most likely suggested to Fowers that the affidavit contained sufficient allegations to properly establish probable cause. Defendants have failed to demonstrate that a reasonable officer could not possibly have believed that the warrant authorized by Judge Hilder was valid.
Fowers took his affidavit in support of his warrant request to a neutral state court judge for review and issuance of the warrant. Fowers was entitled to rely on the probable cause determination made by the judge. As explained by the Supreme Court:
In the ordinary case, an officer cannot be expected to question the magistrate's probable cause determination. . . . Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.
Leon, 468 U.S. at 921 (quotations, citations and internal brackets omitted). The court concludes that Fowers and the other executing officers validly relied on the search warrant in good faith.
IV. Execution of the search warrant
Finally, the Defendants challenge the issuance and execution of a no-knock search warrant. The Fourth Amendment generally requires that police officers entering a home must knock on the door and announce their identity and purpose before attempting forcible entry. See Richards v. Wisconsin, 520 U.S. 385, 387 (1997). The presumption in favor of announcement, however, gives way when exigent circumstances exist. See United States v. Gay, 240 F.3d 1222, 1228 (10th Cir. 2001). "In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394 (1997), quoted in Gay, 240 F.3d at 1228. "This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Richards, 520 U.S. at 394. Similarly, where a judge issues a no-knock search warrant, that judge must determine whether the affidavit supporting the warrant request sufficiently describes exigent circumstances that would justify a no-knock warrant. See United States v. Thigpen, No. 91-1128, 1992 WL 252453, at *3 (10th Cir. Sept. 29, 1992); accord Richards, 520 U.S. at 396 n. 7 (stating in dicta that "[t]he practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time."). Utah statute permits issuance of a no-knock warrant if there is proof "that the object of the search may be quickly destroyed, disposed of, or secreted, or that physical harm may result to any person if notice were given." Utah Code Ann. § 77-23-210(2) (1953).
Applying these principles to the facts of this case, the court concludes that the issuance of a no-knock search warrant for the Winters' residence did not violate the Fourth Amendment. As grounds for his request for a no-knock warrant, Fowers indicated that officers' safety might be compromised if they announced their presence prior to entering the Winters' residence. In support of this allegation, Fowers noted (1) the presence of the two rottweiler dogs that (as changed to correspond to the facts) had barked at one of the confidential informants, (2) evidence relating to the production of methamphetamine which might be encountered by police is potentially "combustible," "hazardous," and explosive, and (3) the fact that when the Winters had been previously arrested, firearms and surveillance equipment, including night-vision equipment, had been discovered.
As an additional grounds for a no-knock warrant, Detective Fowers stated in his affidavit that an unannounced entry was required in order to prevent the destruction of evidence. In support of this allegation, Fowers noted (1) the presence of a telescope on the front deck of the residence, (2) the previous discovery of surveillance equipment belonging to the Winters, and (3) in Fowers' experience, "the ease with which said evidence [relating to the production of methamphetamine] may be concealed, destroyed, damaged, or otherwise altered." (Aff. for Search Warrant ¶ 8.) The fact that drugs can often be easily destroyed by persons who suspect the approach of police can justify the issuance of a no-knock warrant. See Thigpen, 1992 WL 252453, at *3 (concluding that "the County Court judge was entitled to authorize an unannounced entry to preserve such easily destroyed evidence" of drugs); accord Richards, 520 U.S. at 395 (noting "disposable nature" of drugs in finding sufficient justification for unannounced entry).
Although the affidavit did not establish probable cause that methamphetamine was being manufactured at the Winters' residence, the other circumstances cited in the affidavit are sufficient to establish that harm might befall the officers carrying out the search and that evidence might be destroyed. Accordingly, the court concludes that the issuance and execution of a no-knock warrant did not violate the Fourth Amendment.
Order
For the foregoing reasons, Defendants Jeffrey Wayne Winters's and Janiece Winters's motions to suppress are DENIED.