Opinion
CASE NO. 8:99CR4
November 1999.
MEMORANDUM AND ORDER
I. INTRODUCTION
The matters before the Court are 1) defendant Reinholz's motion to suppress and request for evidentiary hearing (Filing 33); 2) defendant Chevalier's motion to suppress evidence (1990 Toyota Camry) and request for evidentiary hearing (Filings 25); 3) defendant Chevalier's motion to suppress statements and request for evidentiary hearing (Filing 26); 4) defendant Chevalier's motion to suppress evidence (1985 Honda Prelude) and request for evidentiary hearing (Filing 27); 5) defendant Chevalier's motion to suppress evidence (residence) and request for evidentiary hearing (Filing 28); 6) defendant Chevalier's motion to suppress evidence ( Franks v. Delaware) and request for evidentiary hearing (Filing 45); 7) the magistrate judge's report and recommendation (Filing 70) denying in part and granting in part the defendants' motions to suppress; 8) the government's appeal of the magistrate judge's report and recommendation (Filing 74); 9) defendant Chevalier's response to plaintiff's objections to the magistrate judge's report and recommendation (Filing 75); 10) defendant Chevalier's statement of objections to the magistrate's report and recommendation (Filing 76); and 11) defendant Reinholz's statement of objection to the magistrate's report and recommendation (Filing 78).
The indictment charges that the defendants 1) conspired to manufacture methamphetamine in violation of 21 U.S.C. § 846; 2) manufactured methamphetamine within a thousand feet of a public elementary school in violation of 21 U.S.C. § 860(a); 3) possessed equipment, products, and chemicals used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6); and 4) maintained a place for the purpose of manufacturing methamphetamine in violation of 21 U.S.C. § 856.
Having reviewed the record, including the defendants' motions (Filings 25, 26, 27, 28, 33 and 45), the parties' briefs, the transcript (TR) (Filing 52) of the hearing on the motions, the report and recommendation of the magistrate judge (Filing 70), the government's appeal from the report and recommendation (Filing 74), and the defendants' objections to the report and recommendation (Filings 76 and 78), the Court will modify the magistrate judge's report and recommendation and grant all of the defendants' motions to suppress.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Court may also receive further evidence or remand the matter to the magistrate judge with instructions.
III. STATEMENT OF FACTS
Having reviewed the defendants' objections, the Court finds that the defendant does not object to any of the factual findings contained in the magistrate judge's report and recommendation (Filing 70). Accordingly, because the defendant does not dispute the validity of any specific finding as recorded in the report and recommendation, the Court shall adopt the factual findings of the magistrate judge in their entirety.
IV. DISCUSSION
A. SEARCH WARRANT
On November 20, 1998, law enforcement officials conducted a search of the defendants' residence at 6729 North 63rd Street in Omaha, Nebraska, pursuant to a search warrant issued by Judge Stephen M. Swartz of Douglas County, Nebraska. The defendants assert that the affidavit in support of this search warrant did not contain sufficient facts to constitute probable cause for the issuance of the warrant. Moreover, the defendants argue that reckless omissions and misrepresentations of material fact make the search warrant invalid. The defendants contend that no reasonable law enforcement official could have relied in good faith on the issuance of the search warrant based upon the affidavit in support of the search warrant.
The government asserts that the application and affidavit for the search warrant contained sufficient probable cause to search the defendants' residence. Although the government admits that the officer charged with drafting the affidavit omitted information regarding a confidential informant and defendant Reinholz's lack of a criminal record, the government contends that these omissions were neither material nor reckless and that they did not mislead the issuing judge. Furthermore, the government asserts that even if the paragraph regarding the confidential informant were to be excised, the affidavit would still establish sufficient probable cause based on evidence recovered through the collection of the defendants' garbage by law enforcement officials.
A presumption of validity exists with respect to the affidavit supporting a search warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). The application and affidavits which support a request for a search warrant should be examined under a common sense approach and not in a hypertechnical sense. United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). However, the factual information providing probable cause for issuance of a search warrant must also be truthful in the sense that the information is believed or appropriately accepted as true by the person submitting the information. Franks, 438 U.S. at 165. A warrant which is based upon an affidavit containing deliberate falsehood or reckless disregard for the truth violates the Fourth Amendment. Id.
The Court agrees with the magistrate judge's conclusion that Officer Podany misled the issuing county judge when he omitted information concerning a confidential informant from the application and affidavit for search warrant for defendant Reinholz's person and residence. The officer used the terms "confidential" and "reliable" in a manner that implied the informant had personal knowledge of defendant Reinholz's use of methamphetamine or his involvement in the distribution of methamphetamine. In fact, the informant was a pharmacist who had knowledge only of defendant Reinholz's purchase of iodine crystals from his pharmacy. Officer Podany was reckless in his disregard of the truth in not fully informing the issuing judge of the nature and extent of the information received from the "confidential and reliable" source. Accordingly, the paragraph concerning this information (i.e., paragraph five) should be excised. However, the question remains as to whether the remainder of the affidavit and application sets forth sufficient probable cause for the issuance of a search warrant for the person of Reinholz and his residence.
Probable cause is determined under the totality of the circumstances test. Illinois v. Gates, 462 U.S. 213, 238 (1983). In the issuance of a search warrant, the Fourth Amendment dictates that an impartial, neutral, and detached judicial officer will assess the underlying factual circumstances so as to ascertain whether probable cause exists to conduct a search or to seize incriminating evidence, the instrumentalities or fruits of a crime, or contraband. United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995). Probable 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. Gates, 462 U.S. at 232. In order to find probable cause, it must be demonstrated that, in light of all the circumstances set forth in the supporting affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular, designated place. United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995).
The Court finds that probable cause does not exist after the excision of paragraph five from the affidavit and application for search warrant for the person of Reinholz and his residence. In his report and recommendation, the magistrate judge determined that even with paragraph five excised, the only substantial basis for the issuance of the warrant for defendant Reinholz's residence would be the information obtained from the trash pick-up, wherein Omaha Police officers found syringes with methamphetamine residue and a brass pipe with cocaine residue. Supported by the holdings in three cases, see United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir. 1982); United States v. Reicherter, 647 F.2d 397, 398 (3rd Cir. 1981); Magda v. Benson, 536 F.2d 111, 112 (6th Cir. 1976), the magistrate judge concluded that affidavits for search warrants based entirely upon evidence garnered from garbage may be sufficient for the issuance of a search warrant for the premises. However, the Court finds that all three of those cases are distinguishable from the facts of the present case.
In Sumpter, a Minneapolis Police Department officer filed an affidavit and application for search warrant for a residence suspected of harboring illegal drug activities. The officer supported his request with information he had collected from two confidential reliable informants over the course of a year. Both informants independently advised the officer that the defendant was selling cocaine out of his residence. Moreover, the officer also had information from several of the defendant's neighbors concerning the large amount of short term traffic entering and leaving the residence, the defendant's prior arrest at the same residence for heroin trafficking, and a trash pickup that contained traces of marijuana. Therefore, it is indisputable that the officers established sufficient evidence to demonstrate probable cause for a search warrant. The officers had two reliable confidential informants, several neighborhood witnesses who could corroborate the amount of short term traffic, the defendant's prior arrest record, and a trash pickup that showed traces of illegal narcotics. In the present case, the police officer had evidence from one trash pickup, no reliable confidential informants, no witnesses to any illegal drug activity, and the defendant did not have a prior criminal record.
In Reicherter, officers of the Philadelphia Police Department collected the defendant's trash on three separate occasions. The trash was found to contain methamphetamine on each occasion, and this fact formed the basis for a probable cause affidavit for a search warrant of the defendant's home. Furthermore, at the subsequent trial, it was revealed that prior to the trash pickup the police officers conducted several controlled buys of methamphetamine from a co-defendant at the defendant's residence through a Drug Enforcement Agency informer. This informer, along with another confidential informant, had also individually purchased methamphetamine from the defendant, and in fact directly observed the defendant manufacturing methamphetamine, several months prior to the controlled buys. Therefore, it is apparent that the police officers in Reicherter established a stronger pattern of evidence than the officers did in the present case. Through three separate trash pickups consistently showing evidence of methamphetamine and the information garnered from reliable informants, the police were able to concretely show probable cause for a search warrant. In the present case, the officers obtained evidence from a single trash pickup several days before the execution of the search warrant. Moreover, they did not establish any other existing sources of information regarding the defendant's alleged illegal drug activities.
In Magda, law enforcement officials suspected the defendant as the individual who burglarized a post office and stole government property. Postal inspectors placed the defendant under surveillance, and later retrieved a garbage bag from the defendant's treelawn next to the street adjacent to his residence. The postal inspector found evidence that tended to incriminate the defendant in the burglary, and based on this discovery, a search warrant was issued by a magistrate judge. The issue in this case, however, was whether the garbage search invaded his reasonable expectation of privacy and whether evidence so obtained can be used for the basis of a valid search warrant under the Fourth Amendment. The court never stated the items discovered by postal inspectors in the garbage. Therefore, the Court finds that although this case addresses the broader issue of the validity of trash pickups in the issuance of search warrants, it does not have any actual factual applicability in justifying the existence of probable cause in the present case.
The amount of evidence collected by law enforcement officials from the trash pickup at the defendants' residence does not provide a basis for probable cause. On a single occasion, police officers retrieved trash containing syringes and a pipe with cocaine residue. This Court is without knowledge of any case where a court upheld the issue of probable cause based solely on evidence garnered from a single trash pickup. To the contrary, this Court has found a case that supports a conclusion that the discovery of a minimal quantity of drug paraphernalia in a suspect's trash does not, standing alone, establish probable cause for a search warrant. See United States v. Elliot, 576 F. Supp. 1579 (S.D.Ohio 1984). In Elliot, the court concluded that the discovery of discarded contraband (i.e., a quantity of partially smoked marijuana cigarettes and several stems from marijuana stalks) was insufficient to support the determination of probable cause. Id. at 1581. The Court stated that the waste products of marijuana use do not, of themselves, indicate any continuing presence of contraband in the home. Id. Accordingly, this Court finds that the articles and amount of drug paraphernalia found in the defendants' trash are similar to those found in Elliot. The warrant in the instant case was executed approximately one week after the contraband was found, there was no evidence of continued drug activity in the house, and there was no evidence that the contraband in the trash container actually came from the suspect house as opposed to some passerby or neighbor. Consequently, this singular event cannot be categorized as evidence that would lead a reasonable police officer to believe that there was probable presence of contraband on the day of the search.
Furthermore, the search warrant for defendant Reinholz's person is invalid because law enforcement officials did not have any additional evidence other than described above that would constitute sufficient probable cause to believe that on or about the defendant's person there would be found controlled substances. Accordingly, the Court finds that the affidavit and application for search warrant for the defendant's residence at 6729 North 63rd Street and his person lacked probable cause. Therefore, the Court will grant the defendants' motion to suppress for the residence and defendant Reinholz's person.
B. SEARCH OF THE HONDA PRELUDE AND TOYOTA CAMRY
The defendants assert that the Court should suppress all evidence and statements obtained by law enforcement officers as a result of the search of the Honda Prelude registered to Cody Bruckner of 6707 S. 139th Ave. Cir. located in the driveway of the defendants' residence. The defendants contend that neither the affidavit and application for the search warrant nor the search warrant itself included any reference to any vehicles. Furthermore, the defendants argue that the officers violated their Fourth Amendment rights by conducting the search of the Honda Prelude without probable cause and without consent of the person authorized to consent to the search.
The defendants also assert that evidence and statements obtained by law enforcement officials as a result of the search of the Toyota Camry registered to defendant Reinholz and located at his place of employment should be suppressed. The defendants contend that officers violated the defendant's Fourth and Fifth Amendment rights, most specifically his expectation of privacy right, because defendant Reinholz did not voluntarily consent to a search of his vehicle. Moreover, the defendants argue that the Toyota Camry was not described in the affidavit and application for search warrant, and that there was no probable cause to execute the search warrant on the vehicle. Furthermore, the defendants argue that this search was tainted by the unlawful arrest of defendant Reinholz at his place of employment, and that as a fruit of that poisonous tree, any evidence obtained from the vehicle should be suppressed.
The government asserts that the officers' search of the Honda Prelude was proper because it was within the curtilage of the residence, and therefore within the reach of the search warrant issued for the residence. Moreover, the government argues that the plain-view doctrine validates the officers' search of the vehicle since an officer looking through untinted windows recognized items contained within the vehicle as materials used in the manufacture of methamphetamine. Therefore, under the plain-view doctrine, the plaintiff contends that the defendants had no expectation of privacy in the vehicle, and that law enforcement officials were authorized to search the vehicle.
The government also argues that the evidence relating to defendant Reinholz's statements to officers establishes that he voluntarily consented to the search of the Toyota Camry. The government contends that law enforcement officials advised defendant Reinholz of his Miranda rights prior to this voluntary consent on two occasions. Moreover, the government asserts that by applying the test of personal and environmental factors found in United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990), it is clear that defendant Reinholz clearly and completely understood the situation and his rights and protections. Therefore, the government contends that defendant Reinholz voluntarily consented to the search of his Toyota Camry.
The issue concerning the Honda Prelude is whether drugs and/or other drug paraphernalia not observed during the initial entry and first discovered by law enforcement officials the day of the entry in a vehicle located in the residence's driveway should be suppressed. Under the Supreme Court's holdings, the suppression or exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search and seizure but also evidence later discovered and found to be derivative of an illegality or fruit of the poisonous tree. Segura v. United States, 468 U.S. 796, 804 (1984) ( citing Weeks v. United States, 232 U.S. 383 (1914) ; Nardone v. United States, 308 U.S. 338, 341 (1939)). This doctrine extends as well to the indirect as the direct products of unconstitutional conduct. Id. ( citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). Therefore, evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. Id.
This Court has already determined the invalidity of the initial search warrant for the defendants' residence. The Court finds that even though the Honda Prelude was within the curtilage of the residence, the evidence contained within the vehicle is the fruit of an illegal search of the residence. Law enforcement officers were in a position to observe the paraphernalia contained inside the Honda Prelude that was within plain-view only because of their illegal search of the defendants' residence. Similarly, even if defendant Reinholz did consent to the search of the Toyota Camry located at his place of employment, his consent was made as a result of an unlawful search warrant and seizure of his person. Therefore, the exclusionary rule requires the suppression of any consent given by defendant Reinholz because it was obtained through illegal government conduct that was not "purged of its primary taint." Wong Sun 371 U.S. at 484-488. Defendant Reinholz's consent and the subsequent search of the Toyota Camry by law enforcement officers are fruits of the poisonous tree. Nardone, 308 U.S. at 341. Accordingly, the Court will grant the defendants' motions to suppress the evidence found in the Honda Prelude and Toyota Camry.
C. STATEMENTS BY REINHOLZ
Defendant Reinholz contends that statements he made while officers transported him to his residence and before he was advised of his Miranda rights should be suppressed because they were not voluntary and were a result of his illegal arrest. The defendant argues that officers advised him of his Miranda rights only after he had made certain involuntary and incriminating statements against his interests, and that these statements were induced by the officers' promises. Therefore, the defendant asserts that his statements made to law enforcement officials, before and after he was advised of his Miranda rights, must be suppressed because they not only violate his Fourth and Fifth Amendment rights, but also are fruits of both his illegal arrest and the illegal search of his residence.
The government argues that the defendant's statements made before and after the officers advised him of his Miranda rights were voluntary and should not be suppressed. The government observes that officers testified that they did not initiate any questioning, and that if they did make promises of leniency, those promises were not sufficient to overbear the free will of the defendant. Moreover, the government asserts that the defendant's waiver of his Miranda rights was voluntary and the product of a free and deliberate choice, and that therefore his statements made after this waiver were voluntary and admissible. Furthermore, the government contends that the defendant's initial detention at his place of work was reasonable and lawful, and did not violate his Fourth Amendment rights.
The Court agrees with the magistrate judge's conclusion that defendant Reinholz was unlawfully seized at his place of employment. Not only did the officers lack the authority to execute the arrest, but as this Court has already determined, the affidavit and application for the search of Reinholz's person had no probable cause basis. The exclusionary rule requires the suppression of evidence obtained through illegal government conduct unless the evidence has been "purged of its primary taint." Wong Sun, 371 U.S. at 484-488. In order for a statement given to police after an unlawful seizure to be admissible at trial, the statement must not only be voluntary by Fifth Amendment standards, but it must also not be the result of exploiting the illegal seizure; rather, it must be an "act of free will sufficient to purge the primary taint." Id. at 486; Brown v. Illinois, 422 U.S. 590, 602 (1975). This Court finds that the causal chain between defendant Reinholz's unlawful seizure and his subsequent statements to law enforcement officers before and after officers advised him of his Miranda rights was unbroken. Therefore, any statements the officers obtained from defendant Reinholz are indisputably tainted fruits of the illegal arrest and should be suppressed. Accordingly, the Court will grant the defendant's motion to suppress any statements made by defendant Reinholz in connection with his illegal detainment.
D. STATEMENTS BY CHEVALIER
Defendant Chevalier asserts that any statements law enforcement officials obtained from her in conjunction with the search of the residence should be suppressed. The defendant contends that at least one law enforcement officer violated her Fifth and Sixth Amendment rights by questioning her without any oral or written advice of her Miranda rights. Furthermore, the defendant argues that these statements were both involuntary and fruits of an illegal search of the residence.
The government asserts that the defendant was not initially advised of her Miranda rights because officers did not consider her to be a suspect, and that even though she was not free to leave the residence, she was not in custody at the start of the interview. Moreover, the government contends that the officer conducting the interview asked questions concerning only defendant Reinholz's possible involvement in illegal activities, and that once the officer learned of a possible connection between defendant Chevalier and potential incriminating evidence contained within the residence, he terminated the interview. Moreover, the government asserts that the defendant's statements were voluntary. Therefore, the government argues that Miranda warnings were not necessary because the questions asked of the defendant were not intended to implicate her in the illegal activity, but were instead focused on providing additional evidence against defendant Reinholz.
Custody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way. Berkemer v. McCarty, 468 U.S. 420, 429 (1984). In determining whether a suspect is "in custody" at a particular time the court examines the extent of the physical or psychological restraints placed on the suspect during interrogation in light of whether a "reasonable person in the suspect's position would have understood his situation" to be one of custody. United States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989). If the defendant believed her freedom of action had been curtailed to a "degree associated with formal arrest," and that belief was reasonable from an objective viewpoint, the defendant was being held in custody during the interrogation. Berkemer, 468 U.S. at 440. The examination of custody arises from an examination of the totality of the circumstances. Carter, 884 F.2d at 370 ( citing United States v. Lanier, 838 F.2d 281, 285 (8th Cir. 1988).
The Court finds that defendant Chevalier was in custody at the time of her questioning by law enforcement. During the interview conducted by Officer Podany, defendant Chevalier was not placed in handcuffs, but neither was she free to leave the residence. Moreover, the manner used during the questioning of defendant Chevalier by Officer Podany and the types of questions directed toward her demonstrate that she was considered a suspect, or at the very least a person with knowledge of the alleged illegal drug activities. Based on the totality of the circumstances, the Court finds that a reasonable person could infer that law enforcement officers curtailed defendant Chevalier's freedom of action. Defendant Chevalier was also not properly informed of her Miranda rights by the officer conducting the interview, and these actions violated her constitutional rights under the Fifth and Sixth Amendments. Furthermore, the officer's questioning of defendant Chevalier was in conjunction with the execution of an invalid search warrant, and as fruit of that invalid search warrant, it should be duly suppressed. Accordingly, the Court will grant defendant Chevalier's motion to suppress statements.
IT IS THEREFORE ORDERED that
1. The plaintiff's appeal (Filing 74) of the magistrate judge's report and recommendation (Filing 70) is overruled;
2. The defendants' objections (Filings 76 and 78) to the magistrate judge's report and recommendation (Filing 70) and defendant Chevalier's response (Filing 75) to the plaintiff's objections (Filing 74) to the magistrate judge's report and recommendation (Filing 70) are sustained;
3. Defendant Reinholz's motion to suppress (Filing 33) is granted;
4. Defendant Chevalier's motion to suppress evidence (1990 Toyota Camry) (Filing 25) is granted;
5. Defendant Chevalier's motion to suppress statements (Filing 26) is granted;
6. Defendant Chevalier's motion to suppress evidence (1985 Honda Prelude) (Filing 27) is granted;
7. Defendant Chevalier's motion to suppress evidence (residence) (Filing 28) is granted;
8. Defendant Chevalier's motion to suppress evidence ( Franks v. Delaware) (Filing 45) is granted;
9. The magistrate judge's report and recommendation dated September 16, 1999 (Filing 70), is adopted as to the portions granting the motions to suppress (Filings 26 and 33) and is otherwise overruled as to the portions denying the motions to suppress (Filings 25, 27, 28 and 45).