Opinion
Case No. 00-40118-01/03-SAC
April 26, 2001
MEMORANDUM AND ORDER
In this case, four defendants are charged with a sole count of conspiracy to manufacture in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. § 846. Defendants Smith, Hannum, and Blair are represented by counsel. The fourth defendant, Tina Louise Tollette, is a fugitive, has filed no motions, and is not currently represented by counsel. This case comes before the court on several motions detailed below.
FACTS
On October 27, 2000, Detective Scott Higgins of the Labette County Sheriff's Department received information from a confidential source that there was a methamphetamine lab located at 415 Pecan Street in Labette City, Kansas. The source advised that the residence, a mobile home, was being rented by Connie Blair and was occupied by a John aka "Hammer," "Hammer's" girlfriend Tina, and Ronnie Smith. "Hammer" was later determined to be John Hannum, and Tina was determined to be Tina Tollette.
On Nov. 2, 2000 at 11:25 a.m., Det. Higgins stopped John Hannum, who was driving a 1986 Chrysler in Parsons, Kansas because the tag was not registered to the vehicle it was on. The sole passenger in the car was Jessee Hamm. After determining that Hannum did not own the vehicle, had no registration for it, and could not produce proof of insurance, Det. Higgins decided to impound the vehicle and do an inventory search. Hannum unsuccessfully attempted to open the trunk, then handed the keys to Detective Kelly Stammer, who was able to find the correct key and open it. In the trunk, Officer Higgins found a sawed off shotgun, and later found therein methamphetamine, and drug paraphernalia.
At that time, Jessee Hamm spoke with the officers, and gave them information about the drug activities at 415 Pecan St. Hannum and Hamm were arrested at the scene, and Hannum later confessed his involvement in the drug activity to law enforcement officers.
The officers then secured a search warrant for 415 Pecan and executed it at about 6:00 p.m. that same day. Defendants Smith and Blair were found inside, as were several items related to the manufacture of methamphetamine. These include approximately 74 grams of pseudoephedrine/ephedrine, 10-15 lithium batteries, 12 cans of starter fluid containing ether, digital scales, acetone, baggies with white powder residue, and other items. Additional items were found in the yard immediately around the trailer and in a Ford Mustang allegedly owned by Smith parked in the driveway of the residence.
I. MOTION FOR DISCLOSURE OF 404(B) AND RELEVANT CONDUCT EVIDENCE (DK. 65)
Hannum has moved for disclosure of 404(b) and relevant conduct evidence (Dk. 65.) Defendant Blair has moved to join. The government has stated that it does not oppose this motion, and will disclose all 404(b) evidence reasonably in advance of trial, and all relevant conduct evidence relating to the defendants so as to facilitate plea negotiations as requested by the defendant. (Dk. 73, p. 52). Based upon the government's representations to this court, this motion will be denied as moot.
II. MOTION FOR DISCOVERY (Dk. 66).
Defendant Hannum filed this motion. The government states that it does not oppose this motion, and will supply the requested information as soon as possible. (Dk. 73, p. 52). Based upon the government's representations to this court, this motion will be denied as moot.
III. MOTION FOR SEVERANCE (Dk. 57).
Defendant Smith filed this motion, alleging that severance is necessary because he and defendant Hannum have antagonistic defenses, due in large part to Hannum's "confession" implicating Smith. Smith contends that if Hannum's out of court statements are introduced at trial, yet Hannum declines to testify, Smith's right of confrontation under Bruton v. United States, 391 U.S. 123 (1968) will be violated. The government agrees that severance is warranted under Bruton, but asks the court to take the motion under advisement because plea negotiations may resolve the issue. (Dk. 73, p. 52). The court is well aware of the relevant law, and will take this motion under advisement.
IV. MOTION FOR DISCHARGE (Dk. 60).
Defendant Hannum moves for an order discharging him from the case because the indictment allegedly does not name him as a defendant. The caption of the indictment is styled " United States of America, Plaintiff vs. Ronald Dean Smith, et al, Defendants." Defendant relies upon a case in which a parent corporation was erroneously brought to trial although it was never named in the indictment. There, evidence was presented that the grand jury had never intended to indict that corporation, just as subsidiary thereof. See United States v. ITT Blackburn Co, 824 F.2d 628 (8th Cir. 1987).
It a necessary prerequisite in the present case that the defendant be designated as a defendant and charged as a conspirator by adequate factual allegations. "It is fundamental that the indictment must inform an accused of the nature of the charges against him, and it is a necessary corollary that the indictment must also give the accused notice that he is in fact being accused." United States v. Sherpix, Inc., 512 F.2d 1361, 1367-68 (D.C. Cir. 1975).
Here, defendant Hannum was specifically named in the only count of the indictment, which alleges:
Commencing sometime before the 2nd day of November, 2000, and continuing through on or about the 2nd day of November, 2000, . . . the defendants,
Ronald Dean Smith,
John Mark Hannum,
Connie Jo Blair and
Tina Louise Tollette,
knowingly, willfully and unlawfully combined, conspired . . . to manufacture in excess of 50 grams of methamphetamine [in violation of relevant statutes].
Indictment (emphasis added). Accordingly, defendant Hannum had notice that he was in fact being accused, and was adequately informed of the nature of the charges against him. Unlike in the Blackburn case relied upon by the defendant, the grand jury's intent to indict this defendant is clear. This motion will therefore be denied.
V. MOTION TO COMPEL IDENTITY OF TWO INFORMANTS
Defendant Hannum, joined by defendant Blair, seeks to compel the government to disclose the identity of two informants who are unnamed in the affidavit. One is referred to as a "confidential source" who gave information on Oct. 27, 2000 to Det. Higgins, and the other is identified as a "Cooperating source" who gave information on Nov. 2, 2000.
The government "requests that the motion be granted as to the 'cooperating source,'" (Dk. 73, p. 51), and has disclosed some of the requested information to the defendant by way of its response to the motion, including the identity of this source, Jessee Hamm. However, the government has stated its refusal to provide some of the information the defendant requests, including Hamm's address, prior criminal record unrelated to dishonesty or false statements, information regarding psychiatric treatment drug addiction or drug usage, memos of communications between Hamm and government agents, results of polygraph examination if any, and the extent of Hamm's work in other cases. (Dk. 73, p. 48). The defendant has not shown the court any precedent in this jurisdiction supporting his assertion that this information must be provided to him by the government, and the court finds that the defendant has not met his burden under Roviaro v. United States, 353 U.S. 53 (1957) to compel its production.
The government further opposes the motion to the extent it requests information regarding the "confidential source," ("CI") and refuses to provide the requested information regarding this individual. The government asserts that this confidential informant was a mere tipster and not an active participant or a witness to any charged criminal activity, and was not present during commission of the offense. Accordingly, the CI cannot provide any evidence that is exculpatory or that would be essential to Hannum's defense.
The decision to disclose the identity of a confidential informant involves "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, 353 U.S. 53. "A defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant's case and justice would be best served by disclosure. Disclosure is not required if the CI did not participate in the illegal activity or when information sought is cumulative. A CI's testimony must be shown to be valuable to a defendant; mere speculation is not enough." United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995).
"Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992). 'If a confidential informant was only a 'tipster,' and not an active participant in the criminal activity charged, disclosure of the informant's identity is not required." United States v. Zamora, 784 F.2d 1025, 1030 (10th Cir. 1986).
A defendant seeking to force disclosure of an informant's identity has the burden to show the informant's testimony is relevant or essential to the fair determination of defendant's case. United States v. Gordon, 173 F.3d 761, 767 (10th Cir.), cert. denied, 528 U.S. 886 (1999) (citing Roviaro, 353 U.S. at 62.).
Here, in determining whether to require disclosure, the court balances the public interest in protecting the flow of information against the individual's right to prepare his defense. Defendant Hannum has not met his burden to show that the CI's testimony is valuable to the fair defense of his case in light of the government's assertion that the CI has limited information, was not present when the charged activity occurred, and was a mere tipster. Under these circumstances, the public interest in encouraging the free flow of information between citizens and law enforcement officers outweighs the defendant's need for the identity of the CI. This motion will be denied.
VI . MOTION TO SUPPRESS HANNUM'S STATEMENTS
Defendant Hannum has moved to suppress all statements he allegedly made to Det. Tim Holsinger and Scott Higgins on Nov. 3, 2000. These post-Miranda statements were made while defendant Hannum was in jail, between 10:40 a.m. and 12:00 p.m. Hannum allegedly stated to the law enforcement officers, among other matters, that he, Blair, Smith, and Tollette were all involved in the manufacture of methamphetamine at several locations in Labette County, Kansas; that Blair supplied the residence for the manufacturing activities; that Blair, Smith, Tollette, and Hamm would all purchase chemicals for the cooks; that the chemicals found in the bedroom of the trailer belonged to him and Tollette; that Smith was supposed to come to the trailer and bring with him items such as glassware and acid to make methamphetamine; that Blair had been selling and using methamphetamine that she received from him and Tollette; and that Blair was fully aware of the manufacturing taking place at the residence.
Defendant Hannum argues that suppression is warranted for two reasons: 1) at the time he made the statements, he thought he was involved in plea negotiations, and 2) at the time he made the statements, he was suffering from heroin withdrawal, rendering his statements involuntary.
Plea Negotiations
Federal Rule of Criminal Procedure 11(e)(6) provides, in relevant part, as follows:
Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
. . . .
(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Fed.R.Crim.P. 11(e)(6)(D). "Fed.R.Crim.P. Rule 11(e)(6) generally precludes the admission against a defendant of statements made during plea discussions. See also Fed.R.Evid. 410." United States v. Crawford, 173 F.3d 864, 1999 WL 157430 (10th Cir. Mar. 23, 1999) (Table). Cf United States v. Acosta-Ballardo, 8 F.3d 1532, 1536 (10th Cir. 1993) (holding that statements made during plea negotiations are inadmissible even for impeachment purposes under Rule 11(e)(6)(D)). Even before enactment of this rule of procedure, such statements were inadmissible. See United States v. Smith, 525 F.2d 1017, 1020 (10th Cir. 1975) (holding that discussions had during the course of plea bargaining are not generally admissible as part of the government's case in chief at least where the plea bargaining is by a lawyer, citing United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974)).
By its very terms, Rule 11(e)(6)(D) only excludes those statements which are made "in the course of plea discussions." Id. See United States v. Watkins, 85 F.3d 498, 499 (10th Cir. 1996) (holding that statements made after plea negotiations terminated were admissible, even if substantially similar to statements made in the course of plea negotiations.) "Furthermore, the policy underlying Rule 11(e)(6)(D) is "to allow a defendant to freely negotiate without fear that statements will [later] be used against him." (Citations omitted)." Id. Defendant alleges that his statements were in the course of plea discussions because the U.S. attorney had told his attorney in another case, months before his arrest in this case, that he would be debriefed by law enforcement officers.
Further, Rule 11 protects only those statements made in the course of plea discussions with an attorney for the government. Defendant's statements were made to law enforcement officers, not to the U.S. attorney, and the defendant offers no support for its assertion that the two should be considered one merely because he was "debriefed." Defendant cites no legal support for his contention that debriefing constitutes a plea discussion, per se.
But even if defendant's statements had fit within the requirements of the Rule, they do not appear to constitute plea negotiations. Because the Tenth Circuit has not yet established a general framework for determining whether a conversation is an inadmissible plea negotiation, this court will look to other circuits which have done so. "To determine whether a discussion should be characterized as a plea negotiation and as inadmissible, the trial court should carefully consider the totality of the circumstances." United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978) (en banc).
To determine whether a statement is made in the course of plea negotiations, a two-part test is used. Id. This test involves both subjective and objective elements. First, the court "determines whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion," then "determines whether that expectation was reasonable given the totality of the objective circumstances." Id. at 1366, citing Toler v. Wyrick, 563 F.2d 372 (8th Cir. 1977); United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); Calabrese v. United States, 507 F.2d 259 (1st Cir. 1974); Ford v. United States, 418 F.2d 855 (8th Cir. 1969). Plea discussions are defined somewhat restrictively and may be said to occur when the suspect makes or offers to make and admission in order to receive a concession . See United States v. Guerrero, 847 F.2d 1363, 1367 (9th Cir. 1988).
Confessions to law enforcement officers are generally not deemed plea negotiations.
Generally, a person who has been fully advised of his rights may make a full or partial admission to the arresting officers. Such a statement, if otherwise admissible under the general law of confessions, still is admissible despite the fact that the accused makes some request of those in charge. Such a request, without more, does not transform a confession into a plea negotiation. Today, we eschew a simplistic Per se approach in favor of requiring a wholistic examination of the circumstances surrounding the discussion. Unlike the rule set forth in Miranda, Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 do not have as their purpose the protection of criminal defendants from unwise or uninformed confessions. Moreover, application of Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 to circumstances such as those presented in this case would have a substantial adverse effect on important law enforcement interests. It is reasonable to assume that the cooperation of an arrested person often is prompted by a desire for leniency for himself or others. Statements or confessions made in such circumstances, if they are voluntary and made with full awareness of the person's rights, are reliable, probative and constitutionally admissible evidence. See 18 U.S.C.A. § 3501. We do not believe that Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 require otherwise.Robertson, 582 F.2d at 1368.
Here, the record does not disclose any expression of a subjective intent on the part of the accused to pursue plea negotiations. Defendant does not allege that he offered to plead guilty to anything in exchange for a concession, or that the officers offered him a deal. Instead, defendant offers only a letter dated Nov. 10, 1999, nearly one year before the conversation which he seeks to suppress occurred. This letter (Dk. 61, attachment, admitted as Defendant's Exh. H 3), was written by defendant's attorney at that time, and refers to plea negotiations which were then ongoing in another case. No evidence was offered that defendant Hannum recalled this letter or its contents or mentioned it to Det. Tim Holsinger or Scott Higgins on Nov. 3, 2000, at the time they questioned him. The officers' testimony that plea negotiations were never mentioned is uncontradicted. Although defendant Hannum was reluctant at first to talk with the officers, and became more relaxed and willing to speak as the interview progressed, and after he mentioned the possibility that he would be indicted and cooperate in another case, testimony was that this demeanor is typical. The manner of this exchange is insufficient to demonstrate that defendant Hannum exhibited an actual subjective expectation to negotiate a plea at the time of the discussion. The court declines defendant's invitation for this court to engage in mere speculation as to the defendant's subjective intent.
Further, the court finds that even if the defendant secretly harbored some subjective expectation to negotiate a plea at the time of the questioning on Nov. 3, 2000, that expectation, based upon a letter nearly one year earlier regarding a separate case, was not objectively reasonable. Given the totality of the objective circumstances, including the passage of time and the fact that different events and cases were involved, a person in defendant's position would not have reasonably expected that his conversation on Nov. 3, 2000 occurred during the course of plea negotiations in this case. Accordingly, defendant Hannum's statements to law enforcement officers on Nov. 3, 2000 are not inadmissible as plea negotiations.
Voluntariness
Defendant next alleges that his statements on Nov. 3, 2000 were not voluntarily given because he had been using heroin, and was suffering from "withdrawal symptoms" which should have been obvious to the officers. The officers are additionally alleged to have engaged in "overreaching" by proceeding with the interview instead of terminating it. (Dk. 61, p. 3). It is unclear whether defendant intends to assert merely a due process violation, or an involuntary waiver of his Miranda rights as well. In an abundance of caution, the court will address both.
Due Process
The government bears the burden to prove, by a preponderance of the evidence, the voluntariness of defendant's confession. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986). Defendant asserts that his confession was involuntary because of his heroin use and withdrawal. But defendant's mental state without any evidence of police coercion, is
'insufficient to render his confession involuntary. See Connelly, 479 U.S. at 164, 167, 107 S.Ct. 515; see also, e.g., Nickel v. Hannigan, 97 F.3d 403, 410-11 (10th Cir. 1996). Although he might be more susceptible to government coercion due to his mental illness, that is relevant only if there has been police coercion. See United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998).McGregor v. Gibson, 219 F.3d 1245, 1254 (10th Cir. 2000). See United States v. Palmer, 203 F.3d 55, 61-62 (1st Cir.) (rejecting claim that confession made by heroin addict was involuntary because he was suffering withdrawal symptoms), cert. denied, 530 U.S. 1291(2000). A state of intoxication does not automatically render a statement involuntary. United States v. Muniz, 1 F.3d 1018, 1022 (10th Cir.), cert. denied, 510 U.S. 1002 (1993). Further, any drug usage was completely voluntary on the defendant's part and was not the product of government action. See Connelly, 479 U.S. at 167("[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment").
Defendant does not allege any police coercion, and none is shown by the mere fact that the law enforcement officers conducted an interview with him. In conducting a Fifth Amendment inquiry into the voluntariness of a statement, the court examines the totality of the circumstances. United States v. Glover, 104 F.3d at 1579. Specific factors relevant in this determination include: the age, education, and intelligence of the defendant; the length of detention and questioning; whether Miranda warnings were given; the defendant's physical and mental characteristics; and the location of the questioning. United States v. Chalan, 812 F.2d at 1307; see United States v. Rith, 164 F.3d 1323, 1333 (10th Cir.), cert. denied, 528 U.S. 827 (1999). "In no case, however, is any single factor determinative." Chalan, 812 F.2d at 1307.
To hold in favor of the defendant on this issue would require rewriting the above case law, and finding that drug users could never give a voluntary statement to law enforcement officers. Further, the officers' testimony that the defendant appeared to be fine, and responded appropriately to their questions on Nov. 3, 2000, is uncontradicted. No reason to suppress has been shown by defendant's status as a drug user, or his symptoms, if any, of withdrawal.
Waiver of Miranda Rights
This court recently reviewed the governing law regarding a waiver of Miranda rights, in stating:
A suspect who has been informed of his Miranda rights "may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, 522 U.S. 845, 118 S.Ct. 129, 139 L.Ed.2d 78 (1997); Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). To prove a voluntary waiver of Fifth Amendment rights, the government must establish: (1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective. Id.; United States v. Hernandez, 93 F.3d at 1501.
In considering whether the confession or statement is one of free will, the courts look to several factors, including: (1) the characteristics of the defendant: age, education, intelligence, and physical and emotional attributes; (2) the circumstances surrounding the statement, including the length of detention and questioning and the location of questioning; and (3) the tactics, if any, employed by officers. (Citations omitted). "In no case, however, is any single factor determinative." [United States v.] Chalan, 812 F.2d 1302, 1307 [(10th Cir. 1987) , cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988).]United States v. Castorena-Jaime, 117 F. Supp.2d 1161, 1170 (D.Kan. 2000).
The evidence shows that defendant voluntarily, knowingly and intelligently waived his Miranda rights. Under clearly established Supreme Court precedent, the relevant inquiry is whether he appreciated the consequences of his actions, based on a totality of the circumstances. See, e.g., Patterson v. Illinois, 487 U.S. 285, 296-97 (1988); Moran, 475 U.S. at 421. The record does not suggest that the defendant could not understand what he was saying or doing at the time he spoke with the officers. Instead, the evidence from both officers was that the defendant agreed to speak to them then gave them clear, accurate and coherent answers containing specific and detailed information, demonstrating his ability to recall names, places, events, amounts of drugs, and other significant details regarding drug-related activities.
Defendant has made no allegations, and has presented no evidence of police coercion. The sole evidence was that the questioning was not unduly long or intimidating, that defendant was not physically punished or threatened, and was not tricked into making statements. No other indicia of coercion were shown. Accordingly, this motion will be denied.
VII. MOTION TO SUPPRESS EVIDENCE FROM TRAILER AT 415 PECAN
On Nov. 2, 2000 at 6:00 p.m., officers executed a warrant on a mobile home rented by Blair at 415 Pecan, Labette City, Kansas. Defendants Smith and Blair were found therein, as were several items related to the manufacture of methamphetamine. These include approximately 74 grams of pseudoephedrine/ephedrine, 10-15 lithium batteries, 12 cans of starter fluid containing ether, digital scales, acetone, baggies with white powder residue, and other items. Additional items were found in the yard immediately around the trailer and in a Ford Mustang allegedly owned by Smith parked in the driveway of the residence.
Defendant Hannum, joined by Blair, claims that the evidence found at 415 Pecan, Blair's trailer, should be suppressed because the search warrant for that residence was defective in two respects. First, the affidavit for the search warrant was signed by Det. Scott Higgins, but the search warrant itself reflects that the application was made by S. A. Holsinger, allegedly violating the "oath or affirmation clause" of the Fourth Amendment. Second, the warrant is allegedly overbroad because it authorized the search of "the persons of anyone on the property at the time of the search," in alleged violation of the particularity requirement of the Fourth Amendment.
Disparity Between Warrant and its Supporting Affidavit
The Fourth Amendment requires that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation. . ." See Fed.R.Crim.P. 41(c)(1).
The government states that the affidavit (Government's Exh. 1) in support of the search warrant (Government's Exh. 2) was accurate and was signed by Det. Scott Higgins, who possessed the information, background and training stated in the affidavit. Det. Higgins testified that he used a form of a warrant previously used by Det. S.A Holsinger, whose computer and word processing program he used, but inadvertently neglected to delete Holsinger's name from the pre-formatted document and to insert his own. No contrary evidence was offered.
This inadvertent error does not approach that of any constitutional magnitude. Although willful or intentional use of a fictitious name on an affidavit may void a warrant, see Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968), neither intentional misstatement, nor a fictitious name is present here. Det. Higgins was the person whose information is accurately reflected in the supporting affidavit, and who appeared before the magistrate in support of the search warrant. Higgins' affidavit serves the dual purposes of assuring that someone be accountable for the truthfulness of the facts stated therein, and enabling the defendant to challenge those facts in cross-examination. See United States v. McCoy, 478 F.2d 176, 179 (10th Cir. 1973). Further, defendant has shown no prejudice arising from the inadvertent error.
Overbreadth
Defendant next contends that the warrant was overbroad in stating: "The search is to be extended to all structures . . . on the property . . . all vehicles and other conveyances on the property at the time of the search; and to the persons of anyone on the property at the time of the search." (Dk. 62, attachment).
In a recent case, the Tenth Circuit tacitly adopted the prevailing view that an "all persons" warrant, such as was used here, is not a per se violation of the particularity requirement of the Fourth Amendment, contrary to defendant's assertion.
This court has never been called upon to decide the validity of an "all persons" warrant, but the prevailing view is that such a warrant is not a per se violation of the particularity requirement of the Fourth Amendment solely because it does not describe or name the persons to be searched. Rather, the validity of such a warrant turns on the probable cause supporting the warrant. (Citations omitted). The reasoning is that, "with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is . . . identified by physical nexus to the ongoing criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated." De Simone, 288 A.2d at 850-51.
The crucial question in assessing the validity of an "all persons" warrant is whether there is a "sufficient nexus among the criminal activity, the place of the activity, and the persons in the place to establish probable cause." Johnson, 805 P.2d at 1159. Courts that have held "all persons" warrants to be valid have found that the factual basis for the warrant establishes such a relationship. See id. at 1159-60 (collecting cases). On the other hand, "all persons" warrants that courts have found did not pass constitutional muster were lacking a nexus between the criminal activity, the place, and the people at the place, so that there was no probable cause to believe every person present is involved in the criminal activity. See id. (collecting cases).
Thus, the relevant inquiry in deciding whether this was a valid warrant is whether the affidavit supporting the warrant established a sufficient nexus, resulting in probable cause to believe all those present possessed evidence of criminal activity.
United States v. Shields, 172 F.3d 880, 1999 WL 76890, *2-*3 (10th Cir. Feb. 18, 1999) (Table).
The facts surrounding the search warrant in this case present precisely the situation in which an "all persons" search warrant is justified. Here, the affidavit properly supported the warrant by detailing enough facts to establish probable cause to believe that all persons at the place were involved in the illegal activity and probably possessed evidence of criminal activity.
The facts set forth in the affidavit established that the confidential source had been at the residence for the past two days, had observed defendant Hannum manufacture methamphetamine, had seen various items used in the manufacture of controlled substances in the residence, had observed approximately 70 grams of such a substance in the residence, and named three other persons who either lived there or were expected to deliver items used to manufacture methamphetamine at that residence. The affiant sufficiently summarized his experience regarding drug activities and knowledge gained therefrom, and he indicated that his conclusions regarding the nature of the activities at the location were reached by applying that knowledge to the information from the informants and the observations from the surveillance. In sum, the detailed affidavit presented facts clearly establishing probable cause to believe that all persons at the locations described were involved in illegal activity and were likely to have on their persons evidence of illegal activity as specified in the warrant. Further, the location to be searched was a private residence known to be a locus of illegal activity, and not a public place or other location where it may be reasonably probable that innocent persons would be engaged in lawful activities.
The court also notes that the affidavit demonstrates that weapons are a tool of the drug trade, and that it is reasonably foreseeable that conspirators involved in a large scale drug conspiracy will carry, possess, and use weapons. (Dk. 62, attached affidavit). The court notes the officers' need to protect themselves during execution of this search warrant, and finds that under the specific circumstances present here, an "all persons" warrant was justified. Defendant's motion will therefore be denied.
VIII. MOTION TO SUPPRESS EVIDENCE FROM THE 1986 CHRYSLER
Defendant Hannum seeks to suppress all items seized from the vehicle he drove on Nov. 2, 2000, a 1986 Chrysler. Defendant alleges that the vehicle was unlawfully impounded and that the inventory search which followed was therefore illegal. At oral argument, defendant further asserted that the initial stop was invalid.
On that date, Det. Higgins stopped Hannum for driving a vehicle with a tag registered to another vehicle. Hannum alleged at oral argument that this stop was invalid because: 1)Det. Higgins admitted that although he had previously seen the vehicle at 415 Pecan, he had not then seen its tag; and 2) Det. Higgins passed the vehicle on Nov. 2, 2000 as it came toward him, thus could not possibly have seen the tag at that time. At the suppression hearing, Det. Higgins testified that he recognized the vehicle on Nov. 2, 2000, then stopped the vehicle for having a tag not registered to that vehicle. For the court to adopt the conclusion that Det. Higgins did not turn around, see the tag and run it before stopping the vehicle for that offense would erroneously dismiss Det. Higgins' uncontradicted testimony that he stopped the vehicle because he knew its tag was not registered to the vehicle it was on. It is uncontradicted that the tag on the vehicle was registered to another vehicle. Sufficient evidence supports the legality of the initial stop.
Defendant next challenges the lawfulness of the decision to impound the vehicle. When stopped, Hannum drove the vehicle into a convenience store parking lot, with passenger Jessee Hamm. Hannum failed to provide proof of insurance, and stated that the vehicle was owned by Tina Tolette, whose address was unknown. Det. Hannum then cited Hannum for registration and insurance violations, and impounded the vehicle.
Officer Kelly Stammer, who had arrived after the stop, then proceeded to photograph the vehicle, pursuant to standard practice of the department. After photographing the passenger compartment, and in the process of conducting an inventory search, he asked Hannum for the keys to the trunk. Hannum provided them after attempting to unsuccessfully open the trunk himself. Inside the trunk the officers found a red nylon bag with a loaded sawed-off shotgun. Defendants Hannum and Hamm were then handcuffed. Further search of the bag revealed methamphetamine and drug paraphernalia.
Although the written department policy did not expressly require photographs or a written inventory sheet, the officer's testimony that both are routinely done was uncontradicted.
Defendant contends that the impoundment of the vehicle was illegal because the Kansas statutes which Hannum violated neither authorize nor require the impoundment of the vehicle. Defendant concedes, however, that the vehicle could not have been lawfully operated in Kansas, given its lack of registration and lack of insurance. See K.S.A. 8-135; 8-142; 8-152.
A warrantless inventory search of a vehicle pursuant to lawful impoundment generally will not violate the Fourth Amendment. See South Dakota v. Opperman, 428 U.S. 364, 369-71(1976). It is a common practice for police authorities to inventory search the property in an impounded vehicle in order to protect the police from danger and prevent allegations of police theft. See id. at 369. Such procedures are consistent with Kansas law. State v. Boster, 217 Kan. at 624, 539 P.2d 294 (Where police do not have express authorization by statute or ordinance to impound a vehicle, they may still take lawful custody of a vehicle when there are "reasonable grounds" for impoundment.); See State v. Fortune, 236 Kan. 248, 249 (1984) (affirming impoundment pursuant to a policy of the Wichita Police Department which provided that any time the driver of a vehicle is arrested and there is no one present to assume responsibility for the vehicle it will be impounded); State v. Teeter, 249 Kan. 548, 551-53 (1991) citing Boster, 217 Kan. at 624 (reciting six non-exclusive examples of situations which give rise to reasonable grounds for impoundment).
Was the impoundment reasonable under the circumstances? The detectives' testimony is uncontradicted that the department policy is not to leave vehicles unattended after arrest of the occupants to protect the vehicle and its contents from theft or vandalism and to protect the officers from liability. Testimony was vague regarding the time at which the defendants were arrested, and the arresting officer's report is ambiguous on this matter. (Def.'s Exh. H 1).
No one was present to take custody of the vehicle and the owner, Tina Tollette's, address was unknown. There is no evidence that the defendant inquired about having her or anyone else take custody of the vehicle or suggested how long it might have taken someone to do so, or otherwise instructed the arresting officers as to the vehicle's disposition. But even had the defendant done so, the officers may not have honored such a request because the vehicle could not have been legally driven on public roads, given the fact that it was not properly registered. Unlike in United States v. Pappas, 735 F.2d 1232, 1234 (10th Cir. 1984), there is no evidence that unpursued, yet readily available, alternatives to impoundment existed. Simply put, defendant failed to allege that he could have provided for the speedy and efficient removal of the vehicle.
Further, no evidence indicated that the vehicle would have been safe if left unattended in the lot. To have left the vehicle in the parking lot of a convenience store for an undetermined length of time could well have subjected it to vandalism or theft. The officers could not legally have provided for another person to drive that vehicle away, nor could they reasonably have left the vehicle unattended where it was. Under these circumstances, impoundment was reasonable. See United States v. Gallardo, ___ F.3d ___, 2001 WL 185142 (10th Cir. Feb. 26, 2001) (Table). The court finds that under the specific circumstances of this case, the decision to impound the vehicle was a proper exercise of the officer's community caretaking function. See Opperman, 428 U.S. at 369; United States v. Hunnicut, 135 F.3d 1345 (10th Cir. 1998); Williamson v. Bernalillo County Sheriff's Department, 125 F.3d 864, 1997 WL 575812, n. 5 (10th Cir. Sept. 17, 1997) (Table).
When a vehicle is impounded, an inventory of its contents is reasonable if undertaken in good faith pursuant to standard police procedures for the purpose of protecting the car and its contents. Opperman, 428 U.S. at 369, 372. Defendant appears to challenge the good faith basis for the search, because Det. Higgins knew at the time he conducted the search that the vehicle had been present at 415 Pecan, which was undergoing surveillance as part of an ongoing drug investigation.
An inventory search "must not be a ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). Rather, an inventory search is an administrative procedure designed to produce an inventory. United States v. Blaze, 143 F.3d 585, 592 (10th Cir. 1998). An inventory search "undertaken in bad faith or for the sole purpose of investigation" cannot be sustained. Bertine, 479 U.S. at 372 (emphasis added). Accord Haro Salcedo, 107 F.3d at 772-73. As the district court properly noted, however, an inventory search may be justified by a legitimate inventory purpose despite an officer's subjective desire to uncover criminal evidence.
United States v. Cecala, 203 F.3d 836, 2000 WL 18948, **1-*2 (10th Cir., Jan. 12, 2000) (Table). "While mixed motives or suspicions undoubtedly exist in many inventory searches, such motives or suspicions alone will not invalidate an otherwise proper inventory search." Id. at *3. Here, a legitimate inventory purpose existed despite the possibility that Det. Higgins subjectively desired to unconver criminal evidence.
The court additionally finds uncontradicted evidence that defendant Hannum voluntarily consented to the trunk search. When defendant Hannum was asked for the keys to the trunk, he knew the officers wanted the keys for the purpose of searching the trunk, yet made no objection to the request or to the search, and instead handed the officer the keys after unsuccessfully attempting to open the trunk himself. No indicia of coersion or involuntariness appear. Defendant's motion to suppress this evidence will therefore be denied.
IT IS THEREFORE ORDERED THAT defendant Hannum's motion for disclosure of 404(b) and relevant conduct evidence (Dk. 65) is denied as moot; defendant Hannum's motion for discovery (Dk. 66) is denied as moot; defendant Smith's motion for severance (Dk. 57) is taken under advisement; defendant Hannum's motion for discharge (Dk. 60) is denied; defendant Hannum's motion to compel discovery of informants (Dk. 64) is denied; defendant Hannum's motion to suppress his statements made on Nov. 3, 2000, (Dk. 61) is denied; defendant Hannum's motion to suppress evidence seized from 415 Pecan (Dk. 62) is denied; defendant Hannum's motion to suppress evidence seized from the vehicle (Dk. 63) is denied; and defendant Blair's motion to join in some of the above motions (Dk. 71) is granted.