Opinion
Case No. 01-40018-01-DES.
May 30, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion to Suppress (Doc. 22). On May 24, 2001, the court held an evidentiary hearing regarding this matter. At the conclusion of the hearing, the court took the motion under advisement. After due consideration of the parties' filings and the admitted evidence, the court is now prepared to rule on the motion. For the following reasons, defendant's motion is denied.
• PROCEDURAL HISTORY
On March 14, 2001, the grand jury returned a three count indictment against defendant. Defendant was indicted on two counts of conspiring to manufacture methamphetamine and one count of intentionally possessing a listed chemical with reasonable cause to believe said chemical would be used to manufacture methamphetamine.
• FACTUAL BACKGROUND
In the morning of July 17, 2000, agents from the Kansas Bureau of Investigations ("KBI") and the Cherokee County Sheriff's Department ("Sheriff's Department") met with a confidential informant, Tracy Coleman, who advised she was familiar with the defendant. One of the KBI agents present, Timothy S. Holsinger, testified he had preexisting knowledge of the defendant. Ms. Coleman stated she had been with the defendant on July 14, 2000, while the defendant drove to various retail stores in southeast Kansas and purchased pseudoephedrine. Ms. Coleman further informed the agents that she had received what she believed to be methamphetamine from the defendant in return for helping her purchase the pseudoephedrine. Pseudoephedrine is one of the primary chemicals used in the manufacture of methamphetamine and is found in over-the-counter cold medication. Ms. Coleman advised she was going to make further purchases of the chemical with the defendant later that day.
The KBI agents subsequently decided to conduct surveillance on the defendant and Ms. Coleman. From approximately 3:00 p.m. to 9:30 p.m. on July 17, 2000, the KBI agents and officers from the Sheriff's Department followed the defendant and Ms. Coleman in a vehicle driven by the defendant. The two were followed to several locations, including the Columbus, Kansas, office of the Southeast Kansas Community Assistance Program ("SEKAP"), defendant's place of employment. The two next traveled to defendant's residence and the "Places Store" also in Columbus, Kansas. Defendant and Ms. Coleman then traveled twenty to thirty minutes to Baxter Springs, Kansas. Once in Baxter Springs, the officers observed the vehicle stop at a retail mall, which included a "Value-Store" and a "Wal-Mart."
After Ms. Coleman was dropped off by the defendant at Ms. Coleman's residence in Galena, Kansas, Agent Holsinger interviewed Ms. Coleman. During this second interview, Ms. Coleman stated there was a bottle of pseudoephedrine in the defendant's purse and that they had purchased the pills in Baxter Springs. Ms. Coleman indicated they had taken multiple bottles of pseudoephedrine and combined them into one. Ms. Coleman also informed Agent Holsinger that while the two were at defendant's residence, the defendant had shown her a glass jar, which she believed contained methamphetamine or pseudoephedrine in solution. Ms. Coleman also stated there was some marijuana in defendant's home.
Agent Holsinger contacted the officers still following the defendant and requested that the officers, with the assistance of an officer from the Kansas Highway Patrol, conduct a stop of the defendant's vehicle. Agent Holsinger testified the stop was initiated based on his belief the defendant illegally possessed pseudoephedrine. Defendant was subsequently searched and a quantity of methamphetamine was discovered on her person. A pill bottle was also found in the defendant's purse, which contained pseudoephedrine tablets.
On July 18, 2000, Agent Holsinger applied for search warrants for the defendant's residence as well as for the SEKAP office. Nothing of evidentiary value was located at the SEKAP office. During the search of the defendant's residence, the officers found several items supposedly related to the manufacture of methamphetamine.
Defendant seeks suppression of the methamphetamine and pseudoephedrine found during her vehicular stop and the manufacturing related items seized during the search of her residence.
Defendant offers three grounds for suppression: (1) there was no probable cause to stop and search the defendant; (2) the warrant and resulting search was the product of the illegal stop and search; and (3) the search warrant for defendant's home was issued without probable cause.
• DISCUSSION
A. Probable Cause to Arrest
To consider the validity of the evidence seized as a result of the vehicular stop, the court must address in chronological order the circumstances preceding the search. First, it is axiomatic that the officers' decision to stop defendant's vehicle constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). Therefore, the stop is "subject to the constitutional imperative that it not be `unreasonable' under the circumstances." Whren v. United States, 517 U.S. 806, 810 (1996). The government argues the officers initiated the stop in order to effectuate defendant's arrest. Therefore, the government bears the burden of proving the validity of defendant's warrantless arrest and subsequent search. The government contends the officers had probable cause to arrest defendant.
The Tenth Circuit has clearly enunciated the standard for determining whether a warrantless arrest is supported by probable cause:
"Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime." United States v. Wright, 932 F.2d 868, 877 (10th Cir. 1991). To determine if probable cause existed for a warrantless arrest, we examine if, at the time of arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent officer in believing the defendant had committed or was committing a crime. United States v. Snow, 82 F.3d 935, 942 (10th Cir. 1996). "Probable cause must be evaluated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer." Id. (quoting United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991)) . . . . We determine the existence of probable cause to arrest based on the totality of the circumstances.United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).
In this case, the government contends the arrest was valid in light of Ms. Coleman's information coupled with the agents' personal observation of defendant's activities. First, Ms. Coleman gave the agents firsthand information regarding defendant's purchase of pseudoephedrine and defendant's subsequent "payment" in methamphetamine. Ms. Coleman then predicted defendant's future conduct, which was then corroborated by the agents' personal observations. These facts significantly increase the reliability and trustworthiness of Ms. Coleman's statements to the agents. See Illinois v. Gates, 462 U.S. 213, 234 (1983) ("explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the] tip to greater weight than might otherwise be the case").
As for the activity observed by the agents, defendant argues she did nothing illegal. Innocent behavior, defendant argues, fails to establish probable cause. Outwardly innocent acts, however, when viewed in the totality and through the lens of law enforcement experience, may create bona fide suspicions giving rise to probable cause. Gates, 462 U.S. at 243 n. 13. Because pseudoephedrine is commonly used in the manufacturing of methamphetamine, retail stores routinely limit the purchase of pseudoephedrine. It is reasonable, in light of his experience in combating the spread of illicit drugs, to infer that Agent Holsinger knew defendant's traveling to various retail stores, in relatively distant cites, was consistent with the methods used by persons involved in the manufacturing of methamphetamine. See Gordon, 173 F.3d at 766 ("Probable cause rests on a reasonable probability that a crime has been committed, not on certainty that illegal activity is afoot.").
Therefore, viewed in the totality, Ms. Coleman's statements coupled with the agents' personal observations, were sufficient to establish probable cause and justify the warrantless arrest of defendant. United States v. Scott, 210 F.3d 391 (10th Cir. 2000) (table) (holding officer's knowledge of defendant's possible involvement in the manufacturing of methamphetamine coupled with defendant's attempt to purchase bulk pseudoephedrine supported a finding of probable cause).
Defendant makes no argument regarding the subsequent search of her person or vehicle. Once lawfully arrested, the officers were justified in searching defendant's person and the passenger compartment of her vehicle. See New York v. Belton, 453 U.S. 454, 460-61 n. 4 (1981); Chimel v. California, 395 U.S. 752 (1969).
B. Warrant and Search
Defendant's next arguments attack the affidavit used by Agent Holsinger in his application for a search warrant of defendant's residence. Returning to her argument regarding her arrest, defendant asserts the information detailing the methamphetamine and pseudoephedrine found during her vehicular stop should be stricken from the affidavit under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471 (1963). In light of the court's ruling that her stop was valid, however, this argument has no merit. The government contends the affidavit provided the magistrate judge with a substantial basis to find probable cause with or without the information related to the vehicular stop.
Even with the affidavit intact, defendant still argues the affidavit failed to establish probable cause to believe that contraband would be found at her residence. "In determining whether probable cause exists to issue a warrant, the issuing judge must decide whether, given the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998) (quoting United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir. 1995)). "And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Gates, 462 U.S. at 238 (internal citation and quotation marks omitted).
Agent Holsinger's affidavit describes: (1) his initial interview with Ms. Coleman; (2) defendant's activities on July 17, 2000; (3) the methamphetamine seized after defendant's stop; (4) the pill bottle found in defendant's purse; and (5) his second interview with Ms. Coleman. For the following reasons, the court finds that the affidavit provided a sufficient basis for the magistrate judge to find probable cause.
First, as alluded to above, due to her personal knowledge of defendant and her firsthand observation of defendant's activities the magistrate judge had a substantial basis to find Ms. Coleman reliable. See United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992) (noting an informant's firsthand observations are to be accorded greater weight). The affidavit also stated Ms. Coleman had proven reliable in the past: "[Ms. Coleman] has provided information that lead to the arrest of drug violators and the seizure of illegal drugs." (Holsinger Aff. at 5). Ms. Coleman's reliability is further buoyed by her ability to predict defendant's future actions and the agents' personal corroboration. Finally, Ms. Coleman's statements regarding defendant's possession of methamphetamine are supported by the seized methamphetamine found after defendant's arrest.
Second, Ms. Coleman's statement that marijuana and a jar of methamphetamine were present at defendant's residence supplied the magistrate judge with the required nexus between the place to be searched and the evidence sought. Viewed in the totality, the court finds that the magistrate judge's finding of probable cause was supported by substantial evidence.
C. Good-Faith Exception
In the alternative, even if the affidavit failed to provide a substantial basis for a finding of probable cause, the warrant is saved by the "good-faith exception" of United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court held that the Fourth Amendment's exclusionary rule should not bar the use of evidence obtained by police officers acting in good-faith and with reasonable reliance on a facially valid search warrant. 468 U.S. at 919-20. "[W]hen reviewing an officer's reliance upon a warrant, we must determine whether the underlying documents are `devoid of factual support, not merely whether the facts they contain are legally sufficient.'" United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)). The good-faith exception, however, is not without its limits:
The Supreme Court recognizes four situations in which an officer would not have reasonable ground for believing a warrant was properly issued. In these situations, the good-faith exception to the exclusionary rule would not apply. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth. Second, the exception does not apply when the issuing magistrate wholly abandons her judicial role. Third, the good-faith exception does not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (internal citation and quotation marks omitted).
Defendant asserts Agent Holsinger's affidavit was such a conclusory, bare bones document that no officer could reasonably rely on it as establishing probable cause. As discussed above, however, the affidavit contained corroborated statements from a reliable informant. Additionally, the statements provided the proper nexus between the illegal contraband and defendant's residence. Finally, the affidavit discussed direct evidence, i.e., the seized methamphetamine and pseudoephedrine, of defendant's illegal activities. In the very least, the affidavit went beyond the type of unsupported or merely conclusory document the court must guard against. The good-faith exception is applicable.
Having considered all of defendant's arguments and finding them all lacking in merit, the court denies defendant's motion to suppress.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion to Suppress (Doc. 22) is denied.