Opinion
No. 03-40026-01-SAC.
June 16, 2003.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's pretrial motion to suppress weapons and other evidence seized on July 17, 2002, from the residences at 810 and 815 S.E. Chandler in Topeka, Kansas, and to dismiss the indictment. (Dk. 14). The government has filed its response opposing the motion. (Dk. 19). The court heard the parties' arguments and evidence on June 5, 2003, at 3:00 p.m. Having reviewed the matters submitted and researched the law relevant to the issues, the court is ready to rule.
INDICTMENT
On February 27, 2003, the grand jury returned an indictment against the defendant charging him with two counts of possession of a firearm after a misdemeanor conviction for domestic violence in violation of 18 U.S.C. § 922(g)(7).
FACTS
On July 17, 2002, around 5:02 p.m., Officer Doug Garman, an investigator with the Narcotics Unit of the Topeka Police Department (TPD), obtained two search warrants for 810 S.E. Chandler and 815 S.E. Chandler, two residences that are across the street from each other. The same affidavit supports both warrants, and the only difference between the two warrants is the address given for the subject property. The warrants authorized officers to search for certain listed items that included:
Documents used in the trafficking of illegal drugs, methamphetamine, items for the sale or use of methamphetamine. . . . Evidence of ownership, control and occupancy of the property, . . .; records of drug activities and confederates, . . .; records of pager and telephone contracts and billings; pagers, cellular telephones and electronic recording devices; records of drug proceeds, . . .; records of ownership of unusually expensive items of property; income tax returns and supporting documentation; weapons (guns).
(Govt. Exh. 1, pp. 1 and 3). In the supporting affidavit, Officer Garman averred:
"Narcotics traffickers commonly have in their possessions firearms and other weapons. Frequently, their guns of choice are high capacity, semi-automatic, compact weapons. These firearms are used to protect and secure the drug dealers property, drugs and money." (Govt. Exh. 1, p. 6). Officer Garman testified that he believed the warrant properly authorized him to search and seize any firearms found in either residence.
Officer Garman led the team executing the warrant at 815 S.E. Chandler. Receiving no answer to their knocking at the back door, officers forced their entry into the residence. A short time later, Officer Garman was informed that team members had found several weapons in the attic, including what officers believed was a rocket launching device. Officer Garman went to the bedroom that accessed the attic and climbed up a step ladder placed in the bedroom closet. While standing on the ladder and looking into the attic, Garman saw a green tube that appeared to be some kind of a military weapon used to launch explosives with additional ammunition and firearms nearby. Another TPD officer with the narcotics unit, Kris Souma, who had military training and experience, recognized the weapon as a rocket launcher that appeared to be operational. Because of the nature of this weapon and the possibility that the launcher might be considered an explosive rather than a weapon under the first set of warrants, the officers did not touch or move the launcher until they were able to secure a second set of warrants and they were told by the bomb squad that the area was safe to search.
Also seen in the attic at 815 S.E. Chandler was a weapon that resembled an Uzi with a silencer. Officer Garman testified that Kansas law prohibits silencers. Officer Garman heard radio traffic from the officers executing the warrant at 810 S.E. Chandler that they had found numerous hand grenades which are illegal in Kansas. Out of concerns for officer safety arising from the nature and location of the different explosives, Officer Garman had officers evacuate both premises and establish a perimeter while he requested assistance from the TPD bomb squad. Unsure if rocket launchers and grenades were weapons or explosives, Officer Garman prepared a second affidavit and obtained a second set of warrants that authorized the officers to seize "weapons, explosive devices and accessories." (Govt. Ex. 2).
The TPD bomb squad assessed the situation and determined it was safe for other officers to execute the second set of warrants. The officers subsequently learned that the rocket launcher and hand grenades were inert. During their search of 810 S.E. Chandler, officers found the two handguns which are the firearms described in counts one and two of the indictment.
ARGUMENTS
In his written filings with the court, the defendant confines his motion to arguing that the officers in executing the first search warrants exceeded the proper scope of the warrant in locating the weapons. When this tainted information is removed from the application and affidavit for the second round of search warrants, there is no probable cause for them to have been issued. The government responds that the defendant has not shown standing to contest the search of either residence. Assuming standing, the government defends that the officers did not exceed the scope of the first search warrant which authorized the seizure of weapons; that the officers' handling of the weapons during the first search warrant was not a search; that the officers' examination of the weapons was also justified under the plain view doctrine.
The defendant advanced several arguments for the first time at the hearing. The defendant challenged the reliability of the confidential informants mentioned in the supporting affidavit for the first set of warrants. The defendant made a general argument about the sufficiency of any evidence linking him to the guns found at the residences, but he did not tie this argument to any specific request for legal relief. Finally, the defense counsel also complained that the government had not responded to certain discovery requests. None of these arguments or requests was contained in the defendant's written filings with the court, and the defendant offered no cause for why such arguments could not have been timely advanced in those filings. In failing to do so, the defendant violated Rules 12 and 47 of the Federal Rules of Criminal Procedure, and the court summarily denies these arguments and request for that reason. Additionally, the court finds no merit to them even if the defendant's procedural default were overlooked.
The supporting affidavits for the first set of warrants are sufficient in setting forth the informant's credibility or reliability and basis of knowledge. At least four different informants are referenced in the affidavit, and two of them are described as having untested reliability. The reports from all four informants were consistent in critical respects and tended to validate each other. The Tenth Circuit has recognized that consistency between reports of two informants can help to validate both accounts. United States v. Le, 173 F.3d 1258 (10th Cir. 1999). In addition, the officers conducted surveillance and controlled buys that corroborated the informants' accounts. The affiant need not declare the informant's reliability when the informant's statements are corroborated by extrinsic information. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992); United States v. Reno, 196 F. Supp.2d 1150, 1159 (D. Kan. 2002). The court is satisfied that the magistrate judge was provided with probable cause for issuing the first set of warrants and that the executing officers relied in good faith on the warrants. For that matter, the affidavits sufficiently link the defendant to the residences to be searched, and it is a specious argument that the affidavit also must link each item found during the search specifically to the defendant. Finally, the court expects the government will abide by the terms of the omnibus report, and the defendant shall promptly file, if necessary, a written motion delineating any proper discovery requests to which the government has not responded and citing the legal authority in support of the defendant's discovery request.
GOVERNING LAW AND ANALYSIS
Standing
"The Fourth Amendment protects citizens from unreasonable searches and seizures by government actors." United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir. 1996) (citing Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). The protection from unreasonable searches and seizures afforded by the Fourth Amendment reaches only places and interests in which the defendant has a reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 140-45 (1978). "Fourth [A]mendment rights are personal and cannot be asserted vicariously." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990), cert. denied, 499 U.S. 924 (1991). Suppression of evidence is an appropriate remedy only when the search violates a person's constitutional rights.The proponent of a motion to suppress has the burden of proving standing and a prima facie Fourth Amendment violation. United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994) (The defendant "bears the burden of proving whether and when the Fourth Amendment was implicated.") The defendant has "the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." United States v. Skowronski, 827 F.2d 1414, 1417-18 (10th Cir. 1987) (footnote omitted). In this case, the defendant met his burden through the testimony of Officer Garman who related the facts appearing in the first search warrant affidavit that connected the defendant to the two residences. With respect to 810 S.E. Chandler, the affidavit is replete with references to the defendant residing at this address and selling methamphetamine from this residence. The TPD officers had seen the defendant come and go from this residence. When arrested on earlier drug charges in October of 2001, the defendant gave 810 S.E. Chandler as the address of his residence. This testimony about the defendant making and treating this location as his residence is sufficient to establish standing. Because the firearms charged in the indictment were seized at 810 S.E. Chandler, the defendant's standing relative to this location is all that he needs to pursue his motion.
Search Beyond the Scope of the Search Warrants
In interpreting warrants, courts employ a "standard of practical accuracy rather than technical precision." United States v. Ortega-Jiminez, 232 F.3d 1325, 1328 (10th Cir. 2000) (citation and quotation marks omitted). Under either standard, the court has no difficulty reading the first set of search warrants as expressly including firearms as an item that officers could search for and seize if found. "A search is `confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.'" United States v. Robertson, 21 F.3d 1030, 1033 (10th Cir. 1994) (quoting Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985)). The officers' conduct in executing a search warrant is governed by the Fourth Amendment's mandate of reasonableness. See Lawmaster v. Ward, 125 F.3d 1341, 1348-49 (10th Cir. 1997). "[S]o long as the officer's conduct remains within the boundaries of reasonableness, an officer has discretion over the details of how best to proceed with a search warrant's execution." Id. (citation omitted). The government has established that TPD officers did not disregard or exceed the scope of the first set of search warrants in locating the weapons and explosives and that the officers acted reasonably in securing these items and the premises while awaiting a second set of search warrants in order to complete their search and seizure of the weapons and explosives. Even assuming the first set of search warrants did not mention firearms, the officers were authorized to search the attic of the residence for the other drug trafficking items and the weapons and explosives which they then observed in plain view could be properly utilized to obtain the second set of search warrants. See Washington v. Chrisman, 455 U.S. 1, 5-6 (1982) (holding that the plain view doctrine "permits a law enforcement officer to seize what is clearly incriminating evidence or contraband when it is discovered in a place where the officer has a right to be"). The affidavit filed in support of the second set of search warrants did not contain tainted information from an unlawful execution of the first set of search warrants.
IT IS THEREFORE ORDERED that the defendant's Motion to suppress and dismiss (Dk. 14) is denied.