Opinion
Case No. 2:04-CR-242 TC.
July 20, 2004
ORDER
The Grand Jury has indicted Defendant Dennis R. Daybell on charges of possession with intent to distribute methamphetamine ( 21 U.S.C. § 841(a)(1)), possession of a firearm in furtherance of a drug trafficking crime ( 18 U.S.C. § 924(c)(1)(A)), and possession of a firearm by a user of controlled substances or addict ( 18 U.S.C. § 922(g)(3)).
Before the court is Mr. Daybell's motion to suppress evidence seized on April 16, 2004, from Mr. Daybell's residence pursuant to execution of a search warrant. Mr. Daybell contends that the affidavit in support of the search warrant was not supported by probable cause and that the good faith exception set forth inUnited States v. Leon, 468 U.S. 897 (1984), is inapplicable because the warrant was so lacking in indicia of probable cause that the officer could not reasonably have relied upon it. Mr. Daybell also seeks suppression of evidence obtained pursuant to the warrantless use of an Ionscan 400B machine to test residue on Mr. Daybell's front door. For the reasons set forth below, the court DENIES Mr. Daybell's Motion.
BACKGROUND
The majority of facts are taken from the search warrant and the affidavit of Detective John Coyle, which are attached as exhibits to the United States' Initial Resp. to Def.'s Mot. to Suppress and Request for Briefing Schedule.
In his affidavit, seven-year veteran Detective Coyle set forth his training and experience in the investigation of illegal drugs (when he signed the affidavit, he had had fourteen months of experience investigating illegal drug activity). He also presented information received from a "Concerned Citizen," his own observations of the residence based on surveillance, the results of a February 25, 2004 search of the same residence, and the results of an Ionscan 400B test performed on residue swabbed from the outside of Mr. Daybell's front door (the test revealed the presence of marijuana).
A person identified in the affidavit by Detective Coyle as a concerned citizen ("CC") told him that the people who lived at the residence were distributing narcotics out of the residence. The CC told Detective Coyle that "multiple people frequent 9065 West Main Street to purchase and use methamphetamine and marijuana" and that Dennis Daybell was "getting one to two ounces of methamphetamine every other day from an unknown source in Murray City." The CC stated that Dennis Daybell was "working a normal job in the daytime hours and conduct[ing] the majority of his narcotics operation in the evening and night-time hours." Also, according to the CC, Mr. Daybell had a.25 automatic handgun, was using methamphetamine on a daily basis, had become "very paranoid," and had threatened other people associated with his drug trafficking organization. The CC told Detective Coyle that Mr. Daybell had barricaded the back door of his home because, according to Mr. Daybell, "the police always come in through that door." Finally, the CC said that Mr. Daybell had two large guard dogs to protect his home.
Detective Coyle stated that the CC acted independently, against personal interest, and provided the information without any consideration. The affidavit does not explain what negative consequences the CC potentially faced by providing the information. Nor does the affidavit explain how the CC got the information or when the CC gave the information to Detective Coyle.
Detective Coyle verified the CC's personal information (for example, date of birth, driver's license information, and criminal history) and stated that "[t]he CC has provided accurate information that your affiant has verified through prior investigations." In particular, the CC's information was corroborated with the following information gathered independently by Detective Coyle and other officers.
First, Detective Coyle related the results of a February 25, 2004 search of the residence (apparently, Mr. Daybell resided there at that time as well). That search produced 1.5 ounces of methamphetamine, 1.5 ounces of marijuana, drug packaging material, scales and drug-related paraphernalia.
Second, Detective Coyle and other narcotics officers watched the residence for ten days before applying for the warrant. During the surveillance, Detective Coyle personally observed numerous people coming and going from the house "at all hours of the night." Specifically, he observed "a large amount of short stay foot traffic and occasional vehicle traffic coming and going" from the house, the majority of which took place in the evening and nighttime hours. Detective Coyle noted in his affidavit that, based on his training and experience, "large amounts of short stay traffic are consistent with the distribution of illegal narcotics."
Third, the results of the Ionscan 400B test done on April 1, 2004, revealed the presence of marijuana on the front door of the residence. The front door faces the sidewalk and street, and the front of the residence is not enclosed by a fence or other enclosure or obscured from view. The Ionscan 400B machine is designed to detect the presence of drugs from a sample swab. Detective Coyle is trained and certified in the use of the Ionscan 400B machine. On the day he took the sample from Mr. Daybell's front door, Detective Coyle performed a maintenance check and found the Ionscan 400B machine to be operating properly. He also followed quality control guidelines and used a sterile swab to produce what he believed to be an accurate result.
Based on Detective Coyle's representations, Judge Burton issued a no-knock search warrant authorizing a search of Mr. Daybell's residence for evidence of the crime of distribution and possession of a controlled substance, including marijuana, methamphetamine, materials related to the possession or distribution of those controlled substances, and documentation of sales of a controlled substance.
ANALYSIS
Mr. Daybell challenges the search and contends that Detective Coyle's affidavit on its face did not provide probable cause for the warrant to be issued. He also contends that the Leon good faith exception does not salvage the search. In addition, he challenges the Ionscan test on the basis that it was a warrantless search conducted without probable cause.
1. Was Detective Coyle's Collection and Field Testing of Particles from the Exterior of Mr. Daybell's Front Door a Search Under the Fourth Amendment?
The Fourth Amendment protects the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A search within the meaning of the Fourth Amendment occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113 (1984).
Mr. Daybell contends that the warrantless Ionscan test of residue from the outside surface of his front door was an unconstitutional search for two reasons. First, he analogizes use of the Ionscan machine to use of a thermal imaging device, which the United States Supreme Court held to be unlawful in Kyllo v. United States, 533 U.S. 27 (2001). Second, he argues that the outside surface of the front door was within the house, or at least part of the curtilage of the house, and so Mr. Daybell had a reasonable expectation of privacy requiring a warrant to swab and test the residue on the outside of the front door.
Kyllo is not applicable in this case. The Ionscan test did not reveal any information about the inside of Mr. Daybell's house. See Kyllo, 533 U.S. at 34 ("[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search") (internal quotation marks and citation omitted) (emphasis added). Counsel for Mr. Daybell essentially conceded this during oral argument on the Motion to Suppress. Use of the Ionscan machine is not analogous to use of the thermal imaging device. Rather, use of the Ionscan machine is analogous to use of a trained dog to sniff and indicate the presence of narcotics.
Counsel for Mr. Daybell claimed, during oral argument, that because the affidavit did not explain what the Ionscan machine is designed to do, it could not have been clear to the judge issuing the warrant. Because the affidavit described the results of the test, the court finds that it sufficiently informed the warrant-issuing judge about the workings of the Ionscan machine.
In United States v. Jacobsen, 466 U.S. 109, 113 (1984), the United States Supreme Court held that a field test identifying a collected substance as cocaine was not a search because it revealed only whether the substance was contraband See Jacobsen, 466 U.S. at 123 ("A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy"). In support of its holding, the Jacobsen Court cited to United States v. Place, 462 U.S. 696 (1983), which held that a dog sniff of luggage was not a search. "Together, Jacobsen and Place make clear that there is no intrusion on legitimate privacy interests (and hence no `search') where the only information revealed is limited to contraband items." United States v. Morales-Zamora, 914 F.2d 200, 204-05 (10th Cir. 1990). Here, the Ionscan test only revealed the presence of marijuana on the door's surface.
The court also rejects Mr. Daybell's argument that Detective Coyle's touching of the exterior surface of the front door without a warrant somehow invaded Mr. Daybell's reasonable privacy interests in his home or the home's curtilage. Mr. Daybell did not have a reasonable expectation of privacy with respect to a person's touching and/or collecting of residue from the front door's exterior.
"[A] Fourth Amendment search does not occur — even when the explicitly protected location of a house is concerned — unless `the individual manifested a subjective expectation of privacy in the object of the challenged search,' and `society [is] willing to recognize that expectation as reasonable.'" Kyllo, 533 U.S. at 33 (quoting California v. Ciraolo, 476 U.S. 207, 211 (1986)) (emphasis in original). Nothing in the record suggests that Mr. Daybell "manifested a subjective expectation of privacy" in the exterior surface of his front door (for example, the door was not enclosed with a fence or gate and was not concealed from observation by persons walking past the front of the house). And such an expectation certainly is not something society would recognize as reasonable. As the United States notes, "[t]he unenclosed and unfenced door to [Mr. Daybell's] residence would be expected to be approached by any visitors to the house, both wanted and unwanted" (Gov't's Resp. to Def.'s Mot. to Suppress at 6), and those visitors could touch the door by knocking or leaving notes or solicitations on the door. See, e.g., United States v. Hogan, 122 F. Supp.2d 358, 361-62 (E.D.N.Y. 2000) (holding that "officers were still entitled to enter the driveway and the perimeter of the house to conduct a dog sniff" because area did not "harbor `intimate activities associated with domestic life and the privacies of the home'"); United States v. Brady, 734 F. Supp. 923, 928 (E.D. Wa. 1990) (holding that defendant, whose house had a fence but no "no trespassing" sign, had "only a limited expectation of privacy insufficient to preclude police officers from approaching the residence and knocking on the doors") (emphasis added); see also Jacobsen, 466 U.S. at 124 n. 24 (rejecting defendant's argument thatPlace did not apply because there was no physical invasion of Place's effects whereas there was physical touching of Jacobsen's property to collect the sample).
In this case, the collecting and testing of particles was not a search under the Fourth Amendment. Accordingly, there was no Fourth Amendment violation. And it was proper for Detective Coyle to include information regarding results of the field test in his affidavit seeking a search warrant of Mr. Daybell's residence.
2. Was the Warrant Supported by Probable Cause?
Mr. Daybell contends that the affidavit in support of the warrant did not establish probable cause. Specifically, he challenges the warrant on the basis that (a) the affidavit did not establish the required nexus between the place searched and the items to be seized, (b) that the information from the Concerned Citizen was not independently corroborated by Detective Coyle, (c) that the "tenuous facts [in the affidavit, including the results of the February 2004 search and the Ionscan test] fail to provide a sufficient basis for the inference that a search of Daybell's home would uncover evidence of criminal activity" (Def.'s Mem. in Supp. at 8-9), and (d) that exclusion of the evidence from the Ionscan test further weakens any basis for issuance of the warrant.
In assessing probable cause, an affidavit must be viewed under the "totality of circumstances" test adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). Specifically, a court must determine whether the issuing court made "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. The court must determine whether, under the totality of the circumstances presented in the affidavit, the judge had a "substantial basis for concluding that probable cause existed." Id. at 214. The judge's decision to issue a warrant is entitled to great deference. Id. at 236; United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997). Specifically, a reviewing court "should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).
Probable cause "requires a nexus between suspected criminal activity and the place to be searched." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (internal quotation marks and citation omitted). And "[a]n affidavit in support of a search warrant must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." Id.
Nexus
Mr. Daybell asserts that "the affidavit did not establish the required nexus between the place searched and the items to be seized." (Def.'s Mem. in Supp. at 7.) To the contrary, all of the information provided in the affidavit related not only to the residence but to activities occurring at the residence.
Much of Mr. Daybell's argument seems to focus on what he characterizes as the lack of corroboration of the information the CC provided to Detective Coyle. This is addressed below.
Also, Mr. Daybell incorrectly contends that "[t]he inference drawn by the affidavit that drug dealing is afoot because of the behavior of individuals coming and going to and from Daybell's residence fails to provide a nexus between the purpose of the individuals' visits to Daybell's home and illicit drugs." (Def.'s Mem. in Supp. at 8.) Mr. Daybell asks the court to isolate certain facts and disregard the reasonable inferences that Detective Coyle is allowed to make based on his training and experience, particularly with regard to the connection between short term traffic and drug dealing. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court is to give "due weight to inferences drawn from [historical] facts by . . . local law enforcement officers"); United States v. Glover, 104 F.3d 1570, 1578 (officer's training, experience and expert opinions are relevant to probable cause determination).
He also incorrectly suggests that the affidavit provided "observation of drug activity outside" the Daybell residence and that such activity did not create any inference that drug activity was going on inside the residence. (Def.'s Mem. in Supp. at 8.) First, Detective Coyle did not state that he observed actual drug activity outside the house, and so that is not what he relied upon to establish probable cause. Second, he is not required to provide evidence of actual drug transactions in order to establish probable cause to search for evidence of drug trafficking. See, e.g., United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980) (probable cause requires "more than mere suspicion but less evidence than is necessary to convict").
There was ample evidence in the affidavit providing a nexus between Mr. Daybell's residence and the alleged drug dealing. The CC specifically stated that Mr. Daybell was selling marijuana and methamphetamine from his residence at 9065 West Main Street, Magna, Utah. The February 2004 search revealed the presence of marijuana and methamphetamine at the residence along with scales and drug packaging materials. Short term traffic was observed at the house mostly in the evening and night time hours over a period of ten days. And the Ionscan test revealed the presence of marijuana on the exterior of the front door of Mr. Daybell's residence. All of this information combined, plus other information presented in the affidavit, provided a sufficient nexus between Mr. Daybell's house and the alleged drug trafficking.
Even if the court were to disregard the Ionscan evidence, a sufficient nexus would still be established by the other information in the affidavit.
Corroboration of the Concerned Citizen's Information
Mr. Daybell argues that the CC's information was not corroborated because, at least in part, the "CC is never represented in the affidavit as witnessing these activities as a participant or even as an observer." (Def.'s Mem. in Supp. at 7.) Although Detective Coyle did not expressly state that the CC had personally observed or participated in the alleged activities, the substance and detail of the information clearly suggests that the CC personally witnessed the alleged activities (for example, the CC related a conversation he had with Mr. Daybell about the barricaded back door, and the CC characterized Mr. Daybell as "very paranoid"). Moreover, many of the details in the CC's information were corroborated by information independently obtained by Detective Coyle (including the results of the February 2004 search and the surveillance). Also, Detective Coyle stated in his affidavit that other information provided by the CC in other investigations had proved reliable, that the CC was providing the information without any consideration and against the CC's personal interest, and that the CC's personal information was verified. All of this supports the government's assertion that the CC's information was indeed corroborated.See, e.g., United States v. Jenkins, 313 F.3d 549, 553-54 (10th Cir. 2002) (holding that "the informant's [allegedly uncorroborated] allegations in this case bore sufficient indicia of reliability such that, when considered with the other information supplied by the officer, the affidavit was sufficient to permit a finding of probable cause") (emphasis added); United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (holding that search warrant was supported by probable cause because "reliability of first-time information provided by a `concerned citizen'" was sufficiently corroborated by specificity and detail of information provided by citizen-informant); see also United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) ("When there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant.").
Inferences to be Drawn From Facts Set Forth in Affidavit
Mr. Daybell isolates certain facts and claims that inferences drawn by Detective Coyle and the judge issuing the warrant were unreasonable because those facts, upon which the inferences were allegedly solely based, were "tenuous." The court disagrees.
The standard for determining whether probable cause existed requires the court to consider the totality of the circumstances.Illinois v. Gates, 462 U.S. 213 (1983). Even if the court were not to consider the results of the Ionscan test, the court nevertheless finds that the corroborated information from the CC, Detective Coyle's reasonable inferences based on his training and experience, the observations made by Detective Coyle and other officers who were watching the residence at night, and the results of the February 2004 search combine to create probable cause based on all the circumstances.
3. Does the Leon Good Faith Exception Apply?
Although the court has concluded that there was probable cause to issue the warrant, the court will briefly address Mr. Daybell's argument that the Leon good faith exception does not apply.
The good faith exception to the warrant requirement, as articulated in United States v. Leon, 468 U.S. 897 (1984), requires that evidence not be suppressed when the officer conducting the search "act[s] in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." Leon, 468 U.S. at 900, 920-21. The Supreme Court has stated that "[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id. at 919.
In assessing the good faith exception, a 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." United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989) (quotingLeon, 468 U.S. at 922 n. 23). The court considers "all of the circumstances" when making this determination. Leon, 468 U.S. at 922 n. 23. The government "bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable." United States v. Cook, 854 F.2d 371, 373 (10th Cir. 1988) (quoting United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986)). Still, "[t]he first notion to be remembered in considering the good faith principle is the presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith." United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985).
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. The Tenth Circuit has articulated these four situations as follows:
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 to be false if not for his "reckless disregard of the truth." . . . Second, the exception does not apply when the "issuing magistrate wholly abandon[s 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.United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (quoting Leon). In this case, Mr. Daybell contends that the good faith exception in Leon does not apply because the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." (Def.'s Mem. in Supp. at 10 (quoting Leon at 923).)
Mr. Daybell relies on the same arguments that probable cause did not exist to support his argument that Detective Coyle's reliance on the warrant was entirely unreasonable. For the same reasons stated above, the court finds that there is nothing in the record to indicate that the officers who executed the warrant did not act with an objective good faith belief that the warrant was properly issued by a neutral magistrate. The search warrant and supporting affidavit were not devoid of factual support.See United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) ("[W]hen reviewing an officer's reliance upon a warrant, we must determine whether the underlying documents are `devoid of factual support, not merely whether the facts they contain are legally sufficient'") (emphasis added; internal citation omitted).
Considering all of the circumstances, the warrant was not so lacking in indicia of probable cause that the officer did not reasonably rely on it, particularly when it was approved by a neutral magistrate. See, e.g., Leon, 468 U.S. at 921 ("an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient"). Hence, even if the warrant was not supported by probable cause (a finding the court rejects), the Leon good faith exception applies in this case. Suppression of the evidence is not appropriate. See id. at 918 ("[S]uppression of evidence obtained pursuant to a warrant should be ordered . . . only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.") (emphasis added).
ORDER
For the foregoing reasons, Defendant Dennis R. Daybell's Motion to Suppress is DENIED.