Opinion
CAUSE NO. NA 02-27-CR H/N
August 12, 2003
ENTRY ON DEFENDANT'S MOTIONS TO SUPPRESS
Defendant Travis A. Green has been indicted on three federal drug charges for violations of 21 U.S.C. § 841(a)(1): distribution of cocaine base, possession of more than 50 grams of cocaine base with intent to distribute, and possession of marijuana with intent to distribute. Green has moved to suppress physical evidence seized in a search of his residence pursuant to a state search warrant, as well as evidence of statements he made to law enforcement officers in the course of the search. The court heard evidence on July 11, 2003. Defendant submitted post-hearing supplemental briefs and an affidavit from defendant himself. The belated affidavit is stricken as evidence because it was submitted after the hearing, and without being subject to cross-examination. The government advised court staff it did not intend to file a supplemental brief. The court now states its findings of fact and conclusions of law pursuant to Federal Rule of Criminal Procedure 12(d). For the reasons explained below, the court denies defendant's motion to suppress physical evidence but grants his motion to suppress statements he made during custodial interrogation because the evidence shows that the Miranda warnings given to him omitted one essential element.
Factual Background
In the course of investigating drug distribution in southern Indiana, state and local police officers arrested a person who subsequently agreed to help them. This cooperating witness told them that the source of his/her cocaine was Travis Green, and he/she agreed to carry out a controlled purchase of cocaine base (also known as crack cocaine) from Green. On October 29, 2002, Indiana State Police troopers prepared the cooperating witness for the controlled purchase of three grams of crack cocaine for $100 using recorded currency. The troopers kept the cooperating witness under surveillance, and the controlled buy was completed at Green's residence in Jeffersonville, Indiana.
Indiana State Police Sergeant Myron Wilkerson then prepared an affidavit requesting a search warrant for Green's residence and a second location where, according to the cooperating witness, Green had also sold cocaine. The affidavit summarized the information provided by the cooperating witness. It also provided some corroboration of the witness's story by police investigation and especially by the controlled buy earlier in the evening. Sergeant Wilkerson faxed the affidavit and a draft warrant to Judge Cecile Blau of the Clark Superior Court at her home shortly before 11 p.m. on October 29, 2002. Judge Blau reviewed the affidavit and signed the search warrant, authorizing the troopers and other officers to search Green's residence for cocaine and related items. The search warrant also authorized searches of the second residence and of any vehicles found at either location registered to "the offenders or potential offender located on the premises." Judge Blau faxed the search warrant back to Sergeant Wilkerson.
Sergeant Wilkerson and other police officers carried out the search warrant at Green's home at approximately 11:45 p.m. on October 29, 2002. State Police Detective Shaun Hannon knocked on the door and announced that he was a police officer and had a search warrant. Green saw and heard him, then disappeared from view. Detective Hannon and the other officers quickly entered the residence. Green, who was found in the kitchen, was seized and handcuffed for officer safety during the search. Green's girlfriend and her children were kept in the living room.
In the course of the search, Sergeant Wilkerson found a camera bag, as described by the cooperating witness, that contained a quantity of crack cocaine. The camera bag also held more than $1,500 in cash, including $90 of the $100 in recorded bills that had been used for the controlled buy. Sergeant Wilkerson and Detective Hannon found approximately fourteen packages of marijuana in the kitchen freezer. Detective Hannon found a rock of crack cocaine on a kitchen counter. He also searched Green himself and found $163 in cash in his pocket, which the officers also seized. Additional facts are noted below as relevant to particular issues.
Discussion
Green has raised a host of challenges to the seizure of evidence from his home and person. The court addresses the major theories in this entry and has considered all the issues raised. Issues not addressed explicitly have been found to be without merit or immaterial to the admissibility of the evidence in question.
I. Facial Validity of the Warrant
Judge Blau swore the affiant, Sergeant Wilkerson, by telephone. After Judge Blau signed the search warrant, she faxed it back to Sergeant Wilkerson. Such use of telephone and facsimile transmission of search warrants and applications is authorized by Indiana statute. Ind. Code § 35-33-5-8.
Defendant Green points out that the facsimile "headers" on the pages Judge Blau's transmission indicate 11:59 p.m on October 29 and 12:00 a.m. on October 30, which was about fifteen minutes after the search warrant was actually executed. Green suggests that this discrepancy shows that the warrant was facially invalid and even shifts the burden of proof to the government. The court disagrees. Judge Blau wrote on the search warrant that she was signing it at 11:00 p.m. on October 29, 2002. That handwritten time is a more reliable indicator of the time than the automatic time-stamp from Judge Blau's facsimile machine. The evidence at the hearing showed that Judge Blau had never set the time on her facsimile machine, and that evidence has not been rebutted. There is no evidence that she paid any attention to that time and date stamp. Accordingly, the court is satisfied that the search warrant was issued before it was executed.
II. Knock and Announce
Green argues that the officers violated the knock and announce rule when entering his apartment. The court disagrees. The evidence at the hearing was undisputed. The officers knocked and announced their presence and their purpose. When they arrived, the outer door (probably glass but possibly a screen door) was closed, but the inner door was open, which allowed those inside and outside to see one another. Defendant Green apparently saw and heard the officers and then disappeared from view. His disappearance gave the officers reasonable grounds for concern about both their safety and the possibility that evidence might be destroyed. Under those circumstances, it was reasonable for officers to enter the house immediately. United States v. McGee, 280 F.3d 803, 806 (7th Cir. 2002). There was no violation of the knock and announce principle.
Green argues at page 4 of his supplemental brief that "Hannon did not fear Green would destroy evidence or that Green may possess a weapon," citing Tr. 96. Hannon actually testified to the opposite, that because Green disappeared after seeing the officers at the door and hearing they had a search warrant, he was concerned that Green might try to destroy evidence or obtain a weapon.
Even if there had been a violation, controlling Seventh Circuit precedent holds that violations of the principle in executing a search warrant do not require suppression of evidence seized in the course of an otherwise lawful search. See United States v. Sutton, ___ F.3d ___, ___, 2003 WL 21639137, *2 (7th Cir. July 14, 2003) ("suppression of evidence obtained as a result of a search subsequent to a knock-and-announce violation is not available as a remedy"); United States v. Langford, 314 F.3d 892, 894 (7th Cir. 2002); United States v. Brown, 333 F.3d 850 (7th Cir. 2003). While the issue is now before the Supreme Court, see United States v. Banks, 282 F.3d 699 (9th Cir. 2002), cert. granted, 123 S.Ct. 1252 (2003), the court does not rest its denial of Green's motion only on that basis.
III. Probable Cause for the Search
Green argues that the officers did not have probable cause for their search because the information from the cooperating witness was not sufficient. The court disagrees. After the witness carried out the controlled buy, as reflected in the affidavit for probable cause, there was sufficient probable cause and corroboration of the witness's story.
The officers were keenly aware that the cooperating witness had no track record that would support his or her credibility. See generally Illinois v. Gates, 462 U.S. 213 (1983) (adopting totality of circumstances test for reliability of information from confidential sources used to obtain search warrants). They did not seek a search warrant based only on the story of the cooperating witness. Rather, the controlled buy provided ample confirmation of the cooperating witness's story. That transaction allowed Judge Blau to find a fair probability that cocaine and related items would be found at Green's residence. See United States v. Taylor, 154 F.3d 675, 679 (7th Cir. 1998); United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991). The fact that the cooperating witness's story was also against his own penal interest added to its reliability. See United States v. Johnson, 289 F.3d 1034, 1039 (7th Cir. 2002); United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000). Also, the court finds that the search warrant was sufficiently "fresh." See Lamon, 930 F.2d at 1188.
IV. Credibility Issues and Franks v. Delaware
Green argues that the court should discount the credibility of the three officers who testified at the hearing on the motion to suppress. The court finds no good reason to do so. Before looking at Green's specific complaints, it must be noted that neither Green nor any independent witness testified to offer a different account of the facts.
Green argues that there are discrepancies between the descriptions of his response to the knock and announcement of the search, resulting in a loss of credibility. Detective Hannon wrote that Green moved out of sight "as if to possibly flee." Tr. 79. When a DEA officer later wrote up his second-hand account of the search, he described Green's movement "as if to hide." Tr. 14. The court sees no material discrepancy and no reason to discount credibility.
The testimony was also in conflict as to whether Sergeant Wilkerson was physically present when the cooperating witness was prepared for the controlled purchase from Green. Sergeant Wilkerson testified, both to this court and in his affidavit for the search warrant, that he was present. Detective Hannon identified in his report several officers who were present, but he did not mention Wilkerson. On this point, the court is inclined to believe Wilkerson, but the discrepancy is not material here. A successful Franks challenge requires that the allegedly false information be necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 156 (1978). The officer applying for a search warrant is entitled to rely on information provided to him by other officers. For purposes of defendant's argument under Franks, whether Wilkerson was present or relied on the other officers to prepare the witness and told him what they had done is immaterial to the finding of probable cause and the issuance of the search warrant.
Green argues that the search warrant application contained two other false statements: that Green had an arrest for aggravated battery on June 19, 2002, and that the cooperating witness had bought cocaine from Green's residence for "several months." There is evidence that Green actually had an arrest for aggravated battery on June 19, 1997, five years earlier when he was a juvenile. Tr. 53. Even if that detail had been deliberately misrepresented by Sergeant Wilkerson, and the court makes no such finding, that point also fails the Franks materiality standard. After the reported controlled buy, the existence, let alone the date of the arrest (not conviction) for aggravated battery, was not necessary for the finding of probable cause.
Regarding the "several months" comment, Green relies on Defendant's Exhibit 110, which is a copy of his lease for the residence beginning on October 1, 2002. This challenge fails for three reasons. First, a Franks challenge must be based on deliberate or reckless falsity only by the affiant, not by "any nongovernmental informant." Franks, 438 U.S. at 171. Second, the lease by itself, without explanation by any testimony from Green or others, does not show that the cooperating witness was even wrong about the length of time he or she had been buying cocaine from Green at the same residence. The lease indicates the start date. It does not indicate clearly whether it is an initial lease or a renewal, or who lived in the residence before October 1, 2002. Third, after the controlled buy from Green, the length of time in question was not essential to the finding of probable cause. See, e.g., United States v. Souffront, ___ F.3d. ___, ___, 2003 WL 21803155, *6-7 (7th Cir. Aug. 6, 2003) ("If the material that is allegedly false is set aside, and `there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.'"), citing Franks, 438 U.S. at 171-72.
V. Search of Green's Person
After entering the residence, Detective Hannon handcuffed Green and patted him down for weapons. This search turned up $163 in cash, which was seized as evidence. In the course of executing the search warrant, the officers were entitled to detain Green. Michigan v. Summers, 452 U.S. 692, 703-04 (1981). Because they were entitled to detain him, and because of both the nature of the case and his initial attempt to flee, the officers were also entitled to conduct a "pat-down" search of Green to ensure that he was not carrying any weapons. See United States v. Rivers, 121 F.3d 1043, 1046-47 (7th Cir. 1997).The seizure of the currency during the pat-down for weapons cannot be justified, as the United States suggests, under the "plain feel" doctrine. See Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context."). Dickerson affirmed the suppression of crack cocaine found in such a search because the incriminating nature of the item was not immediately apparent while the officer was still checking for weapons, but required further manipulation beyond the scope of the permissible search for weapons. Id. at 378. In this case, Detective Hannon testified that he was searching for evidence when he came across the currency. Tr. 96-97. There is no suggestion that Detective Hannon thought the currency was a weapon or that he could tell by feel immediately that it was contraband.
Although the seizure of the currency from Green's pocket involved expansion of the initial pat-down search beyond its permissible limits, the currency is still admissible under the inevitable discovery doctrine. Green was arrested based on what was found in the house. He would have been searched incident to that arrest, and the currency would have been discovered then. See United States v. Cotnam, 88 F.3d 487, 495-96 (7th Cir. 1996); United States v. Jones, 72 F.3d 1324, 1330 (7th Cir. 1995). The inevitable discovery doctrine puts the burden of proof on the government. Jones, 72 F.3d at 1334. On this record, there is no doubt that Green was going to be arrested based on the cocaine and marijuana that were found in the house. He would have been searched incident to that arrest, and the currency in his pocket would have been seized.
The court expresses no view at this point on how probative the presence of $163 in cash in Green's pocket might be. The evidence indicates that the recorded bills used in the controlled buy were found in the camera bag that contained the cocaine.
VI. Procedural Errors
Green argues that the officers violated Rule 41(f)(3) of the Federal Rules of Criminal Procedure by failing to give a copy of the search warrant and a receipt to Green and by failing to leave a copy of the search warrant and receipt at the residence. The obvious problem with this argument is that those provisions of Rule 41 do not apply to state law enforcement officers executing state search warrants. See Fed.R.Crim.P. 1 and 41. Green has not developed any similar argument under the Indiana procedures that applied here.Green also argues that the officers failed to properly return the search warrant by failing to bring the seized items before Judge Blau, as instructed in the language of the search warrant. Physical delivery of drugs and cash to the issuing judge is rare, and Judge Blau received a reasonably prompt written return that told her what had been seized and put the seized items under her legal control. The court sees no error on this point that would justify suppression of any physical evidence here.
VII. Defendant's Statements
The burden of proof is on the government to show by a preponderance of the evidence that any statements that Green made while in custodial interrogation were made after a knowing and voluntary waiver of his right against self-incrimination and his right to counsel. United States v. Gillespie, 974 F.2d 796, 799-800 (7th Cir. 1992) ("In . . . contexts involving motions to suppress in which the government bears the burden of proof, the Supreme Court has held that a preponderance of the evidence standard applies."), citing Colorado v. Connelly, 479 U.S. 157, 168 (1986) (government must prove waiver of Miranda rights by preponderance of the evidence); Nix v. Williams, 467 U.S. 431, 444-45 n. 5 (1984) (government must prove inevitable discovery of evidence obtained by unlawful means by preponderance of the evidence); United States v. Matlock, 415 U.S. 164, 177-78 n. 14 (1974) (government must prove voluntariness of consent to search by preponderance of the evidence); and Lego v. Twomey, 404 U.S. 477, 489 (1972) (government must prove voluntariness of confession by preponderance of evidence).
The evidence at the hearing was uncontradicted. Before defendant Green made any statements to officers, such as why he kept marijuana in the freezer ("to keep it fresh"), he was orally advised of at least some version of his Miranda rights at least once and probably twice. He indicated his understanding of those rights to Sergeant Wilkerson and Detective Hannon.
According to the testimony of both Sergeant Wilkerson and Detective Hannon, however, they both left out of the Miranda warnings the essential element that if the suspect wanted an attorney but could not afford an attorney, an attorney would be appointed for him prior to any questioning. See Tr. 70, 98. In Miranda itself, the Supreme Court made clear that the right to an appointed attorney was essential: the warning must include "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." 384 U.S. at 479. Miranda also cautioned that the omission of any essential element of the warning could render statements inadmissible. Id. at 476 ("The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.").
After Miranda, the Supreme Court tolerated some minor variations in the language concerning the right to appointed counsel. See Duckworth v. Eagan, 492 U.S. 195, 203-04 (1989) (finding no Miranda violation where suspect was told an attorney would be appointed upon request "if and when you go to court"); California v. Prysock, 453 U.S. 355, 361 (1981) (finding no Miranda violation where suspect was told an attorney would be appointed upon request but was not told explicitly that an attorney would be appointed before any further questioning occurred); see also United States v. Connell, 869 F.2d 1349, 1353 (9th Cir. 1989) (holding that Miranda warnings were defective when they stated that attorney might be appointed if defendant was too poor to afford one); see generally Dickerson v. United States, 530 U.S. 428, 432 (2000) (holding that Miranda was constitutional decision that could not be overruled by Congress). Nothing in Duckworth or Prysock suggests that the Supreme Court would have tolerated a complete failure to advise the suspect that an attorney would be appointed if he could not afford an attorney. Nor has the government offered any authority that would allow the court to overlook the omission in this case.
When Green made the statements in question, he was in handcuffs after the execution of a search warrant. He was alone with the officers who were executing the search. He obviously was not free to go anywhere at that time, whether or not he had been placed formally under arrest. These circumstances add up to custody for purposes of Miranda. See Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (defendant was in custody for purposes of Miranda when he was detained in his home for several hours, his "ability to communicate with the outside world" was curtailed, and he was "guarded" by an armed, uniformed police officer while a search warrant was executed); cf. United States v. Salyers, 160 F.3d 1152, 1159-60 (7th Cir. 1998) (defendant not "in custody" during execution of search warrant at home when he was not restrained and was not told he could not leave); United States v. Fazio, 914 F.2d 950, 955 (7th Cir. 1990) (defendant was not in custody when officers asked him to sit in a particular office in his own restaurant while they executed a search warrant in an adjacent room; defendant was not locked in the room, physically restrained, or threatened with weapons). The statements here were not simply volunteered statements by Green. They were instead responses to questioning by the officers, so the exclusionary rule of Miranda applies. Defendant's motion to suppress any statements that Green made in the course of the execution of the search warrant is hereby granted.
Defendant Green has tried to argue, but did not testify to try to prove, that the officers promised him that he would not be charged with the cocaine if he talked to them. Such promises were plainly beyond the authority of the officers, and the court finds that no such promises were made. With his post-hearing brief, Green has submitted an affidavit claiming that Sergeant Wilkerson and Detective Kavanaugh told him that if he cooperated and identified his source of cocaine, he would not be charged with dealing in cocaine. See Docket No. 45, Exhibit 1. Green was present at the hearing. He chose not to testify when he would have been subject to cross-examination. His belated affidavit is an improper attempt to supplement the record without being subject to cross-examination, and it is hereby stricken from the record.
So ordered.