Opinion
Crim. No. 04-45-B-W.
October 27, 2004
BRIAN GRANT (1), Defendant(s), represented by CHRISTOPHER R. LARGAY, BANGOR, ME.
USA, Plaintiff, represented by DANIEL J. PERRY, OFFICE OF THE U.S. ATTORNEY, DISTRICT OF MAINE, BANGOR, ME.
RECOMMENDED DECISION ON MOTION TO SUPPRESS
Defendant Brian Grant seeks to suppress evidence allegedly related to a marijuana cultivation operation. Law enforcement officers seized the evidence pursuant to a series of search warrants executed at separate times. The warrants authorized searches at three separate locations, a rudimentary structure in Edinburgh, Maine, a traditional residence in Old Town, Maine, and a storage unit at the Cold Stream Locker Storage Facility in Enfield, Maine. The Edinburgh search and the first search of the Old Town residence took place in May 2002. The search of the storage unit and a second search of the Old Town residence took place in October 2002. In an indictment issued by the Grand Jury on May 26, 2004, Grant is now charged with conspiracy to manufacture and possess with the intent to distribute marijuana in a quantity of more than 100 plants. There is also a criminal forfeiture charge lodged against Grant. I now recommend that the court DENY the motion to suppress. (Docket No. 17.)
Factual Background
The parties are essentially in agreement about the facts underlying each of these searches. It appears to me that the defendant is mounting two categories of challenges to the evidence: (1) facial challenges to the sufficiency of the affidavits in support of probable cause and (2) legal challenges to the scope of the seizures that the Government admittedly made. Neither party has requested an evidentiary hearing and I see no reason to hold one when the defendant is mounting facial challenges to the affidavits and other, purely legal, challenges.
There does appear to be one fact in dispute. In the affidavit in support of the Edinburgh search warrant Agent Ralph Bridges stated there "was also a clear path from the Marijuana grow site to the driveway of the Grant building." (Gov't Resp., Docket No. 18, Elec. Attach. # 1, Ex. A, ¶ 7(a).) In support of his motion Grant has filed an affidavit stating, "I did not see and deny there existed any paths, ways or other evidence of human or vehicular travel from my property to any of the three (3) alleged grow sites." (Def. Mot. Suppress, Docket No. 17, Elec. Attach. # 1, Aff. of Brian Grant, ¶ 7.) As I discuss later in this recommended decision, even if this fact were resolved in Grant's favor, the Government's affidavit supports a finding of probable cause. I have omitted any reference to the fact in my discussion of the affidavit.
On May 7, 2002, Special Agents Ralph Bridges and Brad Johnston conducted surveillance of a structure in Edinburgh, Maine, owned by the defendant, Brian Grant. The agents previously had obtained information from a concerned citizen suggesting that this house was being used as part of a marijuana manufacturing operation. They visited the vicinity of the structure on several occasions prior to May 2002. In December 2001, the Government agents viewed discarded marijuana stalks near the chained tote road leading to Grant's property. Their prior visits had also confirmed the existence of three separate marijuana grow sites in the general area but not directly on the Grant property. Through the winter and into the spring of 2002 the officers made various observations consistent with marijuana cultivation in the vicinity of Grant's Edinburgh residence. On one occasion in February 2002 they noticed Grant's pickup truck parked near a grow site.
During their May 7, 2002, surveillance, the agents feared that they were detected by the defendant while they were hidden in the woods. They decided to secure the defendant while a search warrant for the Edinburgh structure and the defendant's Old Town residence could be obtained. They asked the defendant if anyone else was inside the structure. The defendant responded, "I don't know." The agents then took the keys from the defendant and performed a brief sweep of the house to ensure no one else was inside.
Grant asserts in his affidavit that "the agents forcibly took a key to the camp from my pockets." (Aff. of Brian Grant, ¶ 11.) The Government does not suggest that Grant consented in any way to the removal of the keys from his person.
Subsequently, other agents secured the defendant's residence in Old Town. These agents contacted the defendant's wife, instructed her that a search warrant was being sought and that if she wanted to go back inside the residence she would be accompanied by an agent. Once the warrants were obtained, agents conducted searches of both locations. Inside the Edinburgh structure, agents recovered evidence of a substantial indoor marijuana grow, including, but not limited to, 111 marijuana plants, planting pots, several transformers, several grow lights, hoses, an electric motor for lighting, and other objects used to grow marijuana. Inside the defendant's residence, agents recovered additional evidence of drug trafficking, including substantial personal property well in excess of known income, approximately $12,000 in cash, and documentation showing many transactions using money orders.
On October 2, 2002, Deputy Sheriff Peter Stone of the Penobscot County Sheriff's Office responded to a reported burglary of numerous storage units located at the Cold Stream Storage facility located on Route 155, Enfield, Maine. Deputy Stone surveyed the facility and observed that 9 units had been compromised. One of the units that had been compromised was Unit 19 (A and B). As part of investigating this burglary, Deputy Stone entered unit 19(A and B). The front portion of the unit was empty. Deputy Stone continued to the rear part of the front unit where he observed three large garbage bags full of a plant material that he identified as harvested marijuana. Unit 19 (A and B) is one unit that is connected with the A and B parts of the unit joined at the back of both units. This unit is rented by Lionel Dube, Jr. Another unit at the facility, Unit 8A, is rented in the name of Brian Grant. Unit 8A was not compromised in the burglary. According to the owner of the storage facility, Lionel Dube was the last person to pay the rent on this unit. A specially trained narcotics dog that was brought to the storage facilities alerted to Unit 19 (A and B), but not to Unit 8A. While securing these storage units, agents observed Brian Grant drive by Dube's house and the Cold Stream Storage facility.
A search warrant for Unit 8 was obtained and executed. The agents observed the following items in Unit 8A:
a. Pallets of "Pro-Mix", which is a growing compound;
b. A generator;
c. A pallet of what is believed to be seed starter bricks, similar to rock wool; and
d. Other items such as rat poison and slug poison used in marijuana grows.
The agents were not able to seize the contents of Storage Unit 8A on October 2, 2002, because the volume of the evidence required the use of a truck which was unavailable. The unit was sealed by lock and secured for re-entry. On October 3, 2004, another search warrant was obtained because the agents now had a truck available to haul the evidence observed the previous day.
On October 4, agents obtained a search warrant to search defendant's residence a second time for evidence and instrumentalities of the offense of possession of a controlled substance with the intent to distribute and the offense of money laundering. During this search, they seized a computer and documentary evidence, including tax returns.
Discussion
I discuss each of the search warrant affidavits and related issues in the order raised in the defendant's motion.
1. The Search of the Edinburgh Property
Grant raises two challenges to the search of the Edinburgh property. First he argues that the officers seized the keys from Grant and conducted an illegal warrantless entry of the premises prior to leaving the scene to secure a search warrant. He also maintains that the affidavit submitted in support of the search warrant was insufficient to establish probable cause.
"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Clearly the first search of the Edinburgh structure prior to the issuance of the warrant would have to fall within one of those exceptions in order to pass constitutional muster. The Government relies on the "exigent circumstances" exception to the warrant requirement. (Gov't Resp., Docket No. 18, at 4.) The test to determine whether there is an exigency sufficient to justify a warrantless search and seizure is "whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." United States v. Bartelho, 71 F.3d 436, 442 (1st Cir. 1995) (quoting United States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980)). To address it, the court must consider the facts of the case, "including the gravity of the underlying offense, whether a delay would pose a threat to police or the public safety, and whether there is a great likelihood that evidence will be destroyed if the search is delayed until a warrant can be obtained." Id. The Government seeks to justify or excuse this initial warrantless entry into the structure on two grounds: (1) as a protective sweep following an arrest under the doctrine articulated in Maryland v. Buie, 494 U.S. 325 (1990); and (2) as a "quick visual search" while police secure a residence and obtain a search warrant, such as inSegura v. United States, 468 U.S. 796, 810 (1984).
A "protective sweep," by definition, is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Buie, 494 U.S. at 327. The Supreme Court has defined the parameters of such a search in terms of officer safety:
We . . . hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.Id. at 334. In Buie, the police were executing an arrest warrant and the evidence targeted in the motion to suppress was discovered after police had apprehended Buie outside the entrance to his basement, by an officer who "swept" the basement to see whether anyone else was there. Id. at 328. In the present case the officers "swept" the structure to make sure no one remained inside and then locked the building to secure it while they obtained a warrant. Their purpose at the time of the entry was not to look for specific evidence but rather to secure the premises and make sure that no one else who could harm them or destroy evidence remained inside the structure.
In this case Grant's arrest was not based upon an arrest warrant, but rather upon probable cause. Although the defendant challenges the probable cause for the issuance of the search warrant, he does not directly challenge the officer's probable cause to arrest the defendant. Even if he had done so, I am satisfied that for the same reasons that support probable cause for the search warrant there was also probable cause for the arrest of the defendant. That being said, this court has already determined Buie applicable to an arrest based on probable cause and therefore the search can be supported on that ground. United States v. Lawlor, 324 F. Supp. 2d 81, 89 (D. Me. 2004).
Turning to the Government's "quick visual search" justification for the warrantless entry, Chief Justice Burger demarcated the holding of Segura v. United States quite narrowly when he wrote:
[W]e hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures.468 U.S. at 798. The entire premise of the Segura case rested not only on the fact that the arrest was made inside the home, but also that even if the first warrantless entry were illegal, the evidence seized was in no way tainted by the illegal entry.Id. at 799 (involving evidence discovered during a premises search conducted the day after an illegal entry but "pursuant to [a] valid search warrant issued wholly on information known to the officers before the entry into the apartment," and concluding that such evidence is not the "`fruit' of the illegal entry because the warrant and the information on which it was based were unrelated to the entry"). Segura thus concerns the distinction between probable cause to seize property and probable cause to search a residence. In this case the officers made no seizure of property when they made the warrantless initial entry and they did not use any facts learned during that entry in support of probable cause when applying for the warrant, although they truthfully disclosed in the affidavit that the warrantless entry had been made. Thus even if the first warrantless entry was not authorized under the exigent circumstances exception, the subsequent search and seizure of evidence under the warrant would have had all of the earmarks of "reasonableness" necessary to pass Fourth Amendment scrutiny.
Thus in my view Grant's argument regarding suppression of the evidence seized from the Edinburgh property turns entirely upon the issue of whether the affidavit submitted in support of the warrant application supports the probable cause finding. "The task of the reviewing court is to determine whether a `substantial basis' existed for the magistrate's determination that probable cause existed. Factors to be considered in determining whether a search warrant should issue include `the value of corroboration of details of an informant's tips by independent police work.'" United States v. Keene, 341 F.3d 78, 81 (1st Cir. 2003) (quoting Illinois v. Gates, 462 U.S. 213, 238, 241 (1983)).
The magistrate's task is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . 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. In order to establish probable cause, the facts presented to the magistrate need only "warrant a man of reasonable caution" to believe that evidence of a crime will be found. Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion). The probable cause standard "does not demand any showing that such a belief be correct or more likely true than false." Id.
In the present case, the affidavit was based upon the personal observations of Special Agent Ralph Bridges, and information received from a Concerned Citizen (the Government's "CC"). Bridges stated he had observed three different outdoor marijuana grow sites near a "house" or structure belonging to Brian Grant. The three sites were not adjacent to each other; however, all three sites were similar in the way the plants were marked. All three sites had mounds with plastic utensils with similar markings on them. In addition to the three sites, Agent Bridges observed large piles of parts of marijuana plants a short distance from the driveway to this structure.
Agent Bridges described the structure as an unfinished house with an industrial size exhaust vent and open roof peaks. These features were consistent with a need for significant indoor air circulation which is needed for ideal indoor growing conditions. Agent Bridges's personal observations were bolstered by the information provided by CC. CC relayed, in part, that Grant goes to this house on a daily basis and that CC observed 19 marijuana plants just yards from the house the previous November.
The affidavit presented sufficient facts (along with Agent Bridges's experience and training) that allowed the judge to make a practical, common-sense decision that, given all the circumstances set forth in the affidavit before him there was a fair probability that contraband or evidence of a crime would be found inside the Edinburgh structure.
2. The Two Searches of the Old Town Residence
Grant challenges the May 2002 search of his Old Town residence on three grounds. First, he alleges that the warrant lacked probable cause. Second, he maintains the Government exceeded the scope of the warrant while executing it. Third, he maintains that the seizure of the residence prior to the issuance of the search warrant was unreasonable. Grant challenges the October 2002 search on two grounds. First, Grant maintains the Government once more exceeded the scope of the warrant by seizing tax returns. Second, Grant argues the October 2002 search warrant was tainted because evidence illegally seized from Unit 8A at the Cold Stream Facility was used in the supporting affidavit to establish probable cause.
Turning first to the May 2002 Old Town residence search, Grant's argument that the warrant for that search lacked probable cause consists entirely of the following paragraph:
The warrant for the search of Brian Grant's residence at 17 Bowdoin Street, Old Town, Maine was simply based upon the view of the property in Edinburgh and the fact that it was Brian Grant's residence. Sufficient reasons and evidence were not given for a probable cause determination to search Brian Grant's residence.
(Def.'s Mot. to Suppress, Docket No. 17, at 4.) In response to this argument the Government cites United States v. Feliz, wherein the First Circuit Court of Appeals recognized that "[i]t could reasonably be supposed that a regular trafficker . . . possesse[s] documents showing the names and telephone numbers of customers and suppliers as well as accounts showing the monies paid and collected" and "that he ke[eps] the money he collect[s] and use[s] in his business in some safe yet accessible place." 182 F.3d 82, 87 (1st Cir. 1999). Based on the natural suppositions, the Court of Appeals observed, "It follow[s] that a likely place to seek to find incriminating items would be [the drug dealer's] residence." Id. As the Court noted, "if he [the drug dealer] did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his residence, where else would he keep them?" Id. Grant's perfunctory argument accurately portrays the state of the record, in that the probable cause to search the residence builds entirely upon the events at the Edinburgh site. However, Grant does disregard the fact that Bridges observed a covered generator at the residence that matched the appearance of a generator at the Edinburgh site. Grant also disregards the common sense conclusion of the Feliz court. These factors satisfy the probable cause standard as to the Old Town search.
Grant challenges the seizure of tax returns during the search of his residence because the tax returns were not particularly described in either the May or October warrants relating to the searches of his residence. The Fourth Amendment of the United States Constitution provides, in pertinent part, that "no Warrants shall issue, but upon probable cause . . . and particularly describing . . . the . . . things to be seized." U.S. Const. Amend. IV. The "particularity requirement" of the Fourth Amendment is a prohibition against general warrants and searches. A warrant must describe the items to be seized with sufficient specificity to preclude the exercise of "unfettered discretion, or `rummaging,' by the executing officer." United States v. Dethlefs, 883 F. Supp. 766, 769 (D. Me. 1995) (citingUnited States v. Morris, 977 F.2d 677, 681 (1st Cir. 1992)). Whether a description in a warrant complies with the particularity requirement "depends upon the circumstances of each case, including the offense charged." Id. (citing Morris, 977 F.2d at 681-82)).
The warrant authorizing the May 2002 search of the defendant's residence described the items to be searched to include, "[r]ecords such as journals, ledgers, telephone and/or address lists and other books, papers, documents, and records, all as relate to the trafficking and furnishing of drugs." The warrant authorizing the October 2002 search of the defendant's residence described the items to be searched to include, "[b]usiness records, such as journals, ledgers, checks, receipts, telephone and/or address lists, mail or postal records; all of which are evidence of the offenses of cultivation, possession, distribution, and/or manufacturing of scheduled drugs or which are evidence of the offense of money laundering."
In Dethlefs, the court upheld a warrant containing similar broad language. 883 F. Supp. at 768. The court recognized that the nature of drug dealing permits "a far greater number of documents to be seized since evidence of drug trafficking can include a significant variety of documents, such as those that simply describe the manner in which Defendants paid for expenses and purchases on a day-to-day basis." Id. at 769. The Court concluded that when a warrant clearly identifies a document-intensive offense, the concern over language describing broad categories of documents is diminished. Id. at 769-70. Of course Dethlefs was an easier case than this one because the charges there included conspiracy to avoid payment of federal income taxes and thus the seizure of income tax returns appears a "no-brainer."
Nevertheless, even though Grant is not charged with income tax related charges, the present warrant described the items to be seized sufficiently to preclude the exercise of unfettered discretion, or rummaging, by the executing officer. The officers were limited to records related to the trafficking and furnishing of drugs. The tax returns at issue in the present case fit within the description of records that relate to drug trafficking because expenditures in excess of stated or declared income is recognized as evidence of drug trafficking. Grant's argument appears to be that because the warrant did not use the words "tax returns" it does not matter that tax returns could reasonably fit within the broad categories that were specified. He does not cite any case for the proposition that the omission of the phrase "tax returns" is fatal to the warrant's validity and my independent search has not uncovered any.
Grant also argues that the seizure of the Old Town residence prior to the issuance of the search warrant was unreasonable. Both sides agree that Illinois v. McArthur controls this aspect of the case. 531 U.S. 326 (2001) (allowing the seizure of a residence to provide the police sufficient time to seek a search warrant). Grant maintains that a six-hour delay between the seizure of his residence and the arrival of the signed warrant is unreasonable. During that six-hour period Grant's wife was informed that Grant had been arrested and that she could not re-enter the residence without a police officer accompanying her. The officers were concerned about the potential destruction of evidence inside the residence. They offer a variety of reasons for the six-hour delay including computer problems, the fact that they were drafting affidavits for two separate warrants, and the need to travel to the residence of the issuing magistrate. They characterize their conduct as the exercise of reasonable diligence in obtaining the warrant as expeditiously as possible. I know of no rule that would suggest that a six-hour delay is per se unreasonable. Grant points out that the delay in McArthur involved only a two-hour period, but offers no competing affidavit or argument to suggest that the officers in this case were not diligent in obtaining the warrant. I do not find that the seizure of defendant's residence pending the issuance of the warrant was unreasonable.
Grant's final point concerning the searches conducted at the Old Town residence relates to the October search. In the affidavit supporting that warrant the Government included information about evidence recovered from Unit 8A at the Cold Stream Facility. Grant contends, for a variety of reasons discussed below, that the evidence from Unit 8A was illegally seized and therefore its use "tainted" this October search of the Old Town residence. I discuss the Cold Stream Facility search warrants below, and since I have concluded that there was no illegality connected with either of those searches, my assessment is that this portion of Grant's motion fails as well.
3. The two search warrants directed at Unit 8A of the Cold Stream facility
The Government raises a preliminary issue claiming that the defendant has failed to establish that he possessed a privacy interest in storage Unit 8A at the Cold Stream facility. (Gov't Resp., Docket No. 18, at 11-12.) Toward that end the Government submits a letter from Grant's former counsel that appears to disavow, on behalf of Grant, any claim to any of the contents of the unit in question. Grant has not replied to this argument. Nevertheless I think that the better course here is to analyze the legality of these two searches and seizures since evidence seized from Unit 8A helped form the basis of the October search of the Old Town residence where Grant clearly held a protected Fourth Amendment interest.
The Government executed the warrant for Unit 8A in the early afternoon of October 2, 2002. After executing the warrant, the Government chose not to seize any property and placed a lock on the unit to which Brian Grant did not have the key. On October 3, 2002, the Government applied for a second warrant for Unit 8A and then seized the various property items therein. The Government contends that it took this somewhat unusual course of action because when it executed the first warrant on October 2 it realized the quantity of items and the size and shape of the items of evidentiary quality within the unit were too cumbersome for them to transport at that time. On October 3 they got a second warrant to specifically authorize the removal of the property they had already seized pursuant to the first warrant. I fail to see anything unreasonable, unconstitutional or inappropriate about that course of conduct given the circumstances. Furthermore, if ever there were a situation where the "good faith" exception should be applied it would appear applicable to this second warrant, signed by a United States Magistrate Judge who was apprised that Unit 8A had already been seized pursuant to a different warrant the prior day. (I admit that the warrant affidavit on October 3 does make some reference to Unit 7A as well, but that problem is not before me; the affidavit clearly explains that this will be a second seizure as to Unit 8A). Given these circumstances I see absolutely nothing improper about the second warrant. Other than defendant's counsel's ipse dixit that "the ongoing seizure was not reasonable and violated the Fourth Amendment" there is no authority that would call this conduct into question. For all intent and purposes the Government seized this property on October 2 when it executed the first warrant.
Grant's conclusory argument regarding the initial search of Unit 8A consists entirely of the following statement:
On October 2, 2002, the Coldstream Locker Storage Facility in Enfield, Maine was burgled. Based upon the discovery of alleged marijuana in lockers not owned or rented by Brian Grant, the government sought a search warrant. The search warrant for Locker 8A was not supported by probable cause. None of the lockers burgled belonged to Brian Grant. In applying for the search warrant, the agents neglected to mention the fact that a drug sniffing K9 unit had not alerted on storage locker 8A.
(Def.'s Mot. to Suppress, Docket No. 17, at 5-6.) To the extent Grant challenges the warrant for unit 8A, because the agents neglected to inform the magistrate that a drug sniffing dog had not alerted on storage Unit 8A, he is simply mistaken. Defense counsel apparently overlooked paragraph 24 of the application which states: "A specially trained narcotics dog was brought to the storage facilities. The dog alerted to Unit 19 (A and B) at Cold Stream Storage and Unit 51 at Rent-A-Space. It did not alert to the other units." (Docket No. 18, Elec. Attach. # 3, Ex. C, ¶ 24.)
A separate search at a Rent-A-Space facility occurred but the defendant has not pressed any objection to it in his motion.
A review of the facts recited in the October 2 affidavit reveals that Unit 8A had been rented by Grant but a man named Dube was the last person to pay rent on the unit. Dube's storage lockers were among those burglarized and the police detected the presence of illegal drug activities in connection with those units. The affidavit further provided the background information concerning Grant's May 2002 involvement with the indoor grow in Edinburgh and the concerned citizen's information about Grant's marijuana related activities. Taken in its entirety the affidavit supports the finding of probable cause.
Conclusion
Based upon the foregoing I recommend that the court DENY the motion to suppress.