Opinion
Case No. 2:04-CR-251DAK.
June 30, 2005
AMENDED ORDER
This matter is before the court on Defendant's motion to suppress the results from an Ionscan test of a doorknob swab taken at Defendant's home that were included in an Affidavit in Support of Search Warrant and evidence from a search of his home pursuant to a warrant issued on April 13, 2004. The court held an evidentiary hearing and oral arguments on this motion on May 9, 2005. Defendant was present at the hearing and represented by Jon D. Williams. Plaintiff was represented by Vernon G. Stejskal. The court has carefully reviewed the parties' memoranda as well as the law and facts relating to this Motion. Now, being fully advised, the court enters the following Amended Order.
This Amended Order replaces and vacates the Order entered by this court on May 24, 2005.
FINDINGS OF FACT
On April 13, 2004, Detective Marcelo Rapela, a detective with Midvale City Police Department, Investigations Division who is also assigned to the Drug Enforcement Administration Metro Narcotics Task Force, obtained a search warrant for Defendant's residence at 833 East White Maple Way based on his Affidavit for Search Warrant. In Rapela's Affidavit, he stated that a concerned citizen had contacted him July of 2003, about persons manufacturing and distributing methamphetamine at 623 West Fern Drive, in Midvale, Utah. The Affidavit states that the concerned citizen told Rapela that Brandon Jones, Troy Miller, Scott Deising, Troy Vega, and Jason Naisbitt were all involved in this illegal activity. However, at the evidentiary hearing in this matter, Rapela admitted that Defendant Troy Miller was not identified in July of 2003. In fact, he was not identified as a person engaging in illegal activity until February of 2004. And, then, he was identified as only "Potsy." Rapela did not learn that "Potsy" was Troy Miller until March 2004.Rapela's Affidavit also states that he was familiar with all of the named men and that he knew they had a history of manufacturing and distributing methamphetamine. Although the Affidavit reads as though Rapela was aware of these individuals in July of 2003 when the concerned citizen provided him with the information, Rapela did not know of Troy Miller at that time and did not know his criminal history until March of 2004. Again, although the Affidavit states that Rapela confirmed the criminal history of the individuals and implies that such confirmation occurred when he received the information, he randomly checked the criminal history on the parties between July 2003 and the time he prepared the affidavit for the search warrant. Rapela did not conduct a criminal history check of Troy Miller until March of 2004. Therefore, the investigation relating to Troy Miller was only one to two months rather than the nine months represented in the Affidavit.
Sometime at the end of February 2004, a confidential informant, referred to as CI#1 in the Affidavit, told Rapela that Brandon Jones and someone named Potsy (Miller) had a clandestine methamphetamine lab at Miller's residence at 833 East White Maple Way. CI#1 told Rapela that he/she had purchased methamphetamine from Jones and Miller at the residence. The Affidavit states that CI#1 has provided information in the past that has proven reliable and has assisted law enforcement in several narcotics-related investigations. The Affidavit further states that Rapela had verified some of the information provided by CI#1 through independent investigations and that the information proved reliable.
After receiving the information from CI#1 in February 2004, Rapela spoke to a detective with South Salt Lake Narcotics about Miller's residence. The detective told Rapela that he was familiar with the residence and with the names Brandon Jones and Troy Miller. He also told Rapela that he and other detectives had been contacted within the past 45 days by a separate confidential informant, referred to as CI#2 in the Affidavit, about a clandestine methamphetamine laboratory at Miller's address. CI#2 also told the detective that Troy Miller and Brandon Jones were selling and manufacturing large quantities of methamphetamine at this residence and that he/she had observed components to a methamphetamine laboratory inside the residence. However, the Affidavit did not contain any information regarding the credibility or reliability of CI#2.
On March 12, 2004, Rapela and other detectives conducted surveillance at Miller's residence. Rapela observed "short stay" traffic consistent with persons purchasing controlled substances at the residence. Rapela also observed Miller and Jones carrying boxes and ice chests into and out of the residence, which Rapela believes is consistent with persons intending to manufacture methamphetamine.
On March 14, 2004, Rapela requested Detective Tom Mitchell to swab the doorknob of Miller's residence and conduct a test using the Ionscan 400B. The Ionscan 400B analyzes microscopic particles of controlled substances. Rapela's Affidavit states that Mitchell knows through his training and experience that individuals involved in the use and/or sales of controlled substances get microscopic particles of the controlled substances on their hands, or other items present, when handling these substances, and these particles are then transferred to items handled or touched by the individuals.
Mitchell is trained in the usage of the Ionscan 400B, and he performed preliminary tests on the machine to ensure that it was working properly. When Mitchell and Rapela arrived at Miller's residence, Rapela stayed in the vehicle but could see the front door from his vantage point. At Miller's residence the yard has a fence around it with a gate stating "please keep door closed." Mitchell entered the yard through the gate and went to the front door. Mitchell did not knock on the front door or attempt to contact anyone at the residence. He immediately proceeded to swab the doorknob. Mitchell used a sterile swab to perform a check on the outside doorknob of the front door of the residence. When Mitchell later performed the Ionscan 400B test on the swabs from Miller's residence, he received an indication for the presence of methamphetamine.
Rapela's Affidavit also recounts that within thirty days of preparing the Affidavit he was contacted by Utah Highway Patrol Trooper S. Salas, who stated that he had stopped a vehicle near Price, Utah. Rapela's Affidavit states that the vehicle was occupied by John Paul Fazzio, Brandon Jones, and Troy Miller, and that 6 ounces of methamphetamine was located in the vehicle. However, at the evidentiary hearing in this case, Rapela admitted that Troy Miller was not in the vehicle. Rather, he was driving a separate motorcycle. In addition, Rapela was unsure of the amount of methamphetamine involved. In any event, only Fazzio was arrested and charged in that case.
On April 13, 2004, the day that Rapela prepared his Affidavit, Rapela states that he was contacted by CI#1 about Brandon Jones and Troy Miller. CI#1 told Rapela that he/she had spoken to a criminal associate of Jones and Miller, who had told her/him that Jones and Miller were preparing to cook some methamphetamine at Miller's residence. There is no information in the Affidavit stating the credibility or reliability of the criminal associate. And, at the evidentiary hearing there was testimony that CI#1 told Rapela that Jones and Miller were planning a trip to Mesquite to purchase a large quantity of iodine, which is used in the manufacturing of methamphetamine. Although Rapela conducted surveillance at Miller's residence for ten hours, Miller never left and the surveillance was terminated.
Nonetheless, CI#1 also told Rapela that Jones and Miller's methamphetamine lab was sometimes transported to and from Miller's residence in either Jones' or Miller's vehicle. CI#1 also told Rapela that Miller and Jones sometimes kept components of the methamphetamine laboratory inside their vehicles in order to avoid being detected by law enforcement.
Rapela states that he had conducted surveillance with other officers at the residence that day and that Sergeant K. Worlton observed Jones and Miller enter the residence. Jones carried a large back pack from the vehicle into the residence. Based on Rapela's Affidavit, the search warrant was issued later that day by a state court judge.
CONCLUSIONS OF LAW
Defendant contends that the Affidavit in Support of Search Warrant did not establish the probable cause necessary for issuance of a warrant. Therefore, Defendant seeks to suppress all evidence found as a result of the search. Specifically, Defendant attacks several portions of the Affidavit. The first such attack is against the detective's reliance on the results from an Ionscan test done on a swab from the doorknob of Defendant's residence. Defendant claims that the doorknob swab was an unconstitutional warrantless search of his home's protected curtilage.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31 (2001). However, "whether or not a Fourth Amendment `search' has occurred is not so simple under [Supreme Court] precedent." Id. "[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Id. at 33.
"`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Id. at 31 (citation omitted). "At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes." Oliver v. United States, 466 U.S. 170, 180 (1984). In United States v. Dunn, 480 U.S. 294 (1987), the court explained that "curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Id. at 301.
The doorknob on the main entry of a home is clearly a part of the home's curtilage. Under the Dunn factors, the doorknob is not only near the home, it is a part of the home. Although the front door is somewhat public in nature because it is used to greet visitors, it is also at times a part of the homes interior and is closely associated with the interior of the home. A visitor may leave something hanging on the doorknob, but it would only be as a result of a failure to contact the occupants of the home. A doorknob is not public in the sense that it is used by any members of the general public. A visitor could not turn the doorknob without invading the privacy of the home's occupants — the only purpose for turning the doorknob is to gain access to the privacy of the home. Therefore, although the doorknob is in a place frequented by visitors, it is used only by those given access to the interior of the home. A doorknob is not something that is transitory that could be borrowed, taken, or moved to another location. It is a component part of the home. In this case, the house does not have a screen door in front of the actual door, but it has a fence around the entire home. In any event, this court would afford the same privacy protection to the doorknob of any home's main entry door regardless of its location to the street or the presence of a screen door or fence based on the fact that the doorknob is a component part of the home itself and is closely associated with the private details of the home's interior. Furthermore, although the doorknob on the front door of a typical house may be observable from the road, the microscopic particles on the doorknob that are detected by an Ionscan are obviously not observable regardless of someone's proximity to the door. Therefore, the court concludes that the doorknob of Defendant's home is within the protected curtilage of the house. See United States v. Mora, Case No. 1:04CR18TS, at 7-8 (D. Utah Aug. 20, 2004) (also finding doorknob within the curtilage of the home).
The constitutionality of an Ionscan of a doorknob swab has been addressed by only three other district courts and no circuit courts. See Mora, No. 1:04CR18TS (D. Utah Aug. 20, 2004); United States v. Daybell, No. 2:04CR242TC (D. Utah July 20, 2004); United States v. Charles, 290 F. Supp. 610 (D.V.I. 1999). In Mora, Judge Stewart framed the issue as "whether the detectives could go to the main entry door of the home without a warrant and take a swab from that door for the sole purpose of gathering evidence to support probable cause for the search of the interior of the home." Mora, 1:04CR18TS at 8. Two of the courts addressing this issue concluded that the warrantless doorknob swab was an unconstitutional search. See id. at 10; Charles, 290 F. Supp. at 615.
While the Supreme Court has not addressed the issue, it has addressed a search involving a similar sense-enhancing technology. In Kyllo v. United States, 533 U.S. 27 (2001), the court held that "obtaining 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 — at least where (as here) the technology in question is not in general public use." Id. at 34. The court explained that "`[t]he Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.'" Id. at 40 (citation omitted). "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a `search' and is presumptively unreasonable without a warrant." Id.
In Kyllo, the sense-enhancing technology was thermal imaging which measured the amount of heat emanating from the home. Although the government argued that the thermal imaging should be upheld because it detected "only heat from the external surface of the house," the court rejected such a mechanical interpretation of the Fourth Amendment. The court stated that the distinction between "off-the-wall" and "through-the-wall" observation inaccurately defined the issue as one of detecting intimate activities whereas the focus was on "otherwise-imperceptibility." See id. at 37-38 n. 5.
In this case, the Ionscan is a sense-enhancing technology that allows the government to obtain details about the home that cannot otherwise be discovered without physical intrusion into a constitutionally protected area. This court has concluded that the doorknob is a part of the home's constitutionally protected curtilage. While the detective taking the doorknob swab did not enter any impermissible area, he did not approach the door to make contact with anyone at the residence as would a regular visitor. The officer's actions were entirely inconsistent with those of a visitor. The officers specifically performed the doorknob swab and Ionscan test to gain information regarding the home or the occupants that they could not otherwise discover in order to support a finding of probable cause for a warrant to search the interior of the home. The particles on the doorknob were not in plain view and imperceptible absent the technology employed by the officers.
The government relies on Daybell, in which Judge Campbell upheld the door swab based on the grounds that the test did not reveal anything regarding the interior of the house and the presence or absence of drugs on the doorknob is analogous to the use of a trained dog. However, the inclusion of the Ionscan results in Rapela's Affidavit in Support of Search Warrant demonstrates that the officer believed the Ionscan results were relevant to the contents and activities occurring inside the home. If the information from the doorknob was not related to the activities or contents of the interior of the home, the results would not have been included to support probable cause for a search warrant. And, had the officers had probable cause that drugs were in the home, the Ionscan would not have been conducted. In addition, the "dog sniff" cases involve luggage rather than a house. Luggage is entitled to less protection under the Fourth Amendment than is a house. Moreover, there is no evidence that a trained dog could alert on the presence of the microscopic particles detected by the Ionscan. Based on this lack of evidence, the court must conclude that the information regarding drug particles provided by the Ionscan of the doorknob swab is imperceptible without the Ionscan.
Because the officer's sole purpose in doing the doorknob swab was to gain information to support a search of the interior of the home, the court concludes that the doorknob swab was a search subject to the Fourth Amendment. Accordingly, a warrant was required before the officer intruded on the privacy rights Defendant had with respect to the curtilage of his home. Therefore, the court suppresses the results of the Ionscan and strikes it from the Affidavit in Support of Search Warrant.
Without the results of the Ionscan in the Affidavit In Support of Search Warrant, the court must determine whether there was still sufficient probable cause for issuance of a search warrant. "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 231 (1983). 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).
To determine whether probable cause exists, the court must make a commonsense determination from the totality of the circumstances presented whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 236. The court gives "considerable deference to a magistrate's determination of probable cause; a reviewing court's only duty is `to ensure that the magistrate had a substantial basis for concluding that probable cause existed.'" United States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004) (quoting Gates, 462 U.S. at 236).
Defendant challenges several portions of the Affidavit in Support of Search Warrant. The court held a Franks hearing based on Defendant's evidence of inaccuracies contained in the Affidavit. As discussed in the findings of fact above, there are several statements in Rapela's Affidavit that were not accurately portrayed to the judge issuing the search warrant. For instance, the length of the investigation with respect to Troy Miller and the length of time Rapela had known of Troy Miller are inappropriately exaggerated in the Affidavit. The length of the investigation was either intentionally or recklessly misstated by several months to gain credibility with the judge reviewing the Affidavit. As such, this court will only consider the appropriate time frame in determining whether the Affidavit provides probable cause to issue a search warrant.
Also, the information provided by CI#2 and the "criminal associate" who provided information to CI#1 should be stricken from the Affidavit because there is no basis or foundation for their credibility and reliability. Although an affidavit may be based on hearsay information, "[i]f an informant's tip is the source of information, the affidavit must recite `some of the underlying circumstances from which the informant concluded' that relevant evidence might be discovered, and `some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was `credible' or his information `reliable.'" Franks, 438 U.S. at 165 (citations omitted). The Affidavit completely lacks any information as to credibility or reliability of CI #2. In addition, although there is some information as to CI #1's credibility and reliability, there is no information as to the reliability of the information CI #1 received from the "criminal associate." There is nothing in the Affidavit to suggest that Rapela investigated or knew of the criminal associate's veracity or basis of knowledge. Because the Affidavit fails to provide the underlying circumstances demonstrating that CI #2 and the criminal associate were credible or that their information was reliable, the information contained in the affidavit that was provided by CI #2 and the "criminal associate" cannot be a basis for finding probable cause.
The court believes it is also necessary to strike the statements in the Affidavit regarding the traffic stop and arrest near Price, Utah. The statements inaccurately portray Miller as a passenger in a vehicle where drugs were found. Although Miller was associating with the individuals in the car, he was on a separate motorcycle. Therefore, the court does not believe that the statements in the Affidavit relating to the traffic stop can be used to support a finding of probable cause.
Miller argues that although the affidavit states that CI#1 had provided information in the past that had proven reliable and that he had assisted law enforcement in several narcotics investigations, Rapela failed to include in the Affidavit that CI#1 had provided him with information regarding an alleged trip to Mesquite to purchase iodine which proved to be inaccurate. Although Rapela indicated that he had ceased surveillance of Miller's residence when he failed to leave on the alleged trip, given all of the evidence at the hearing regarding this information, the court cannot conclude that is was so unreliable to undermine the veracity of CI#1 to a point that the court disregard the rest of the information CI#1 provided to Rapela. Given the nature of the information — a planned trip — it would not be uncommon or suspicious that plans were changed between the time CI#1 spoke to Rapela and Rapela conducted his surveillance. The court could not expect this type of information from an informant to be correct in every instance. Therefore, the omission of this information from the Affidavit is not so significant that it would have altered the magistrate's finding of probable cause, especially given the other information contained in the Affidavit.
Considering the remaining portions of the Affidavit, the court concludes that there was adequate probable cause for the issuance of a search warrant. The Affidavit states that CI#1 purchased methamphetamine from Miller and Jones at the residence and it gives a foundation for CI#1's credibility and reliability. CI#1 also informed Rapela that Miller and Jones kept parts of their laboratory in their cars, and the officers observed Jones taking a large backpack from the car to the home on the day the warrant was issued. The Affidavit also states that the officers had previously conducted surveillance of the residence and witnessed "short stay" traffic consistent with a drug operation.
These facts establish more than a mere suspicion. These facts also provide a nexus between the alleged information and the place sought to be searched. Therefore, the Affidavit contains enough evidence to establish a fair probability that illegal substances would be found in Defendant's home. Although the court has serious concerns regarding the police work involved in this case and the credibility of Detective Rapela, the court concludes that there was probable cause to support the issuance of the search warrant for Defendant's home. Accordingly, the court denies Defendant's motion to suppress evidence found through the execution of the search warrant at his residence.
CONCLUSION
For the reasons stated above, the court GRANTS Defendant's Motion to Suppress the Ionscan results. The court concludes that the doorknob swab and Ionscan test of Defendant's front door was an impermissible warrantless search of the home's protected curtilage. The court also suppresses certain portions of the Affidavit in Support of Search Warrant, as described above, for being inaccurate and unreliable. However, the court concludes that there was probable cause to issue the search warrant and, therefore, DENIES Defendant's Motion to Suppress evidence obtained through execution of the search warrant at his residence.
This Amended Order replaces and vacates the court's May 24, 2005 Order on Defendant's Motion to Suppress.