Opinion
8:02-CR-252
April 17, 2003.
MEMORANDUM AND ORDER
Defendant Ryan McCarthy stands indicted on one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Before me now are the defendant's objections, Filing No. 41, to Magistrate Judge Thalken's report and recommendation, Filing No. 38. Magistrate Judge Thalken recommended that I deny the defendant's motion, Filing No. 27, to suppress evidence seized in connection with a no-knock search warrant that led to the defendant's arrest and the seizure of items allegedly connected to methamphetamine production at 5830 North 28th Avenue in Omaha, Nebraska. The defendant filed a brief in support of his motion, Filing No. 42, but the government did not file a responsive brief.
I have conducted a careful de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(A) and NELR 72.3(d), and I find that the report and recommendation is neither contrary to law nor clearly erroneous. Therefore, I adopt the report and recommendation in its entirety and deny the defendant's motion to suppress. Because the defendant states that the facts are not in dispute, Filing No. 41 at 1, I specifically adopt Magistrate Judge Thalken's findings of fact. See Filing No. 38, Report and Recommendation at 1-2.
In finding the warrant valid, Magistrate Judge Thalken determined that the affiant police officer provided the state court judge with a substantial factual basis on which to issue the warrant. Omaha Police Officer Green, an experienced clandestine laboratory inspector, attested that the defendant had been observed buying pseudoephedrine, a precursor chemical to methamphetamine, at various WalMart stores and then carrying the purchases into a house rented by Danielle Hieb. Metro Drug Task Force officers had in the past observed Danielle Hieb buying pseudoephedrine in Bellevue. Officer Green also related that Kim Hieb was the defendant's girlfriend and that in the past she had purchased bulk quantities of pseudoephedrine from a store in which the defendant was also present. In addition, Officer Green attested that the defendant was wanted on a misdemeanor warrant for possession with intent to distribute. Given the totality of these circumstances, Magistrate Judge Thalken concluded the state court judge was entitled to find that probable cause existed "that criminal conduct was afoot and present in the premises sought to be searched." Id. at 5.
The defendant, however, contends that Magistrate Judge Thalken erred in finding that probable cause existed for issuance of the no-knock search warrant. The defendant also disagrees that the Leon good faith exception would allow the admissibility of the evidence seized even if the warrant was insufficient.
To be valid, a search warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime may be found in the place to be searched. See Warden v. Hayden, 387 U.S. 294 (1967); Johnson v. United States, 333 U.S. 10 (1948). The standard of probable cause for the issuing judge is 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 given the circumstances set forth in the affidavit." United States v. Johnson, 219 F.3d 790, 791 (8th Cir. 2000). Because the issuing judge relied solely upon the supporting affidavit to issue the warrant, "only that information that is found within the four corners of the affidavit may be considered in determining the existence of probable cause." United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995) (quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982)).
The defendant first argues that the affidavit and application for the search warrant were insufficient because they failed "to refer to any specific conduct of the Defendant which could relate to criminal activity or evidence of criminal activity at the premises to be searched." Filing No. 42, Def.'s Brief at 2. The defendant maintains that his prior record cannot be used as evidence of suspected drug activity because "a prior record is not indicative of future violations." Id. The defendant thus argues that the Omaha Police Department's information about his past drug activities was stale.
The information about the defendant's previous drug activities, however, was only one relevant fact available to the state court judge who issued the warrant. See United States v. Sumpter, 669 F.2d 1215, 1222 (8th Cir. 1982) (finding that a person's "prior criminal activities and record have a bearing on the probable cause determination"). In addition to information about the defendant's past criminal activities, the affidavit and application also contained information about officers' direct observations of the defendant buying multiple packages of pseudoephedrine at several WalMart stores and then taking WalMart bags into the 28th Avenue residence; Kim and Danielle Hieb's similar purchases; Kim Hieb's relationship to the defendant; and Officer Green's knowledge and experience as a clandestine lab investigator. These facts, viewed together, were sufficient to create a "fair probability" that criminal activity was afoot at the 28th Avenue residence.
The defendant also argues that his purchases at WalMart cannot constitute probable cause because the officers did not know the actual contents of the blue WalMart bags they observed the defendant carrying into the Hieb residence. According to the defendant, Officer Green simply did not have sufficient facts to support his statement in the affidavit and application that "the first step is being conducted at 5830 N. 28th Ave. to manufacture meth." Filing No. 34, Ex. 1 at 3. The defendant maintains that the affidavit and application simply contain no facts to indicate that methamphetamine or a methamphetamine lab would be found at the house.
Here again, the defendant improperly focuses on a single fact in isolation. The purchase of a single product containing pseudoephedrine likely would not support issuance of a search warrant, nor would carrying a single WalMart bag into a residence. But "[i]n determining whether probable cause exists, we do not evaluate each piece of information independently; rather we consider all of the facts for their cumulative meaning." United States v. Allen, 297 F.3d 790, 794 (8th Cir. 2000). As Officer Green related in the affidavit and application, he knew that the defendant had in the past purchased twenty-seven boxes of pseudoephedrine from the WalMart in Bellevue. On the date the officers had the defendant under surveillance, they observed the defendant leave the Bellevue WalMart after buying three boxes of pseudoephedrine and proceed to the LaVista Walmart, where the defendant purchased another three boxes; officers then followed the defendant to a WalMart at 180th and Center Street where he bought another box of pseudoephedrine and to a WalMart at 103rd and Fort Street where he bought three more boxes of pseudoephedrine. The defendant then returned immediately to the Hiebs' residence on 28th Avenue. Under the totality of these circumstances, a reasonably prudent police officer could have believed that the defendant was about to illegally manufacture methamphetamine at the 28th Avenue address with the ten boxes of pseudoephedrine he had just purchased from the various WalMart stores. See United States v. Reinhold, 245 F.3d 765, 776 (8th Cir. 2001) (probable cause assessed from "the viewpoint of a reasonably prudent police officer, acting in the circumstances of the particular case").
The defendant also contends that the no-knock provision of the warrant was not justified and hence invalidates the warrant. The affiant officer asked for the no-knock provision to keep the defendant or others in the house from destroying evidence, but the defendant maintains that the officer had no information that easily-destroyed evidence, such as pills or powder, was present in the house. Further, the defendant argues that many of the items listed in the warrant were not susceptible to easy destruction, thus invalidating the rationale for the no-knock provision.
The fourth amendment incorporates the common-law requirement that officers entering a dwelling must "knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387 (1997). Officers need not announce themselves, however, if they have a "reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394. See also United States v. Ramirez, 523 U.S. 65, 70 (1998). Officer Green's statement that people in the house would destroy or flush "pills and powder" involved with the suspected methamphetamine lab if the officers announced themselves before executing the search warrant was not "speculation," as the defendant argues, but obviously based upon his experience investigating clandestine methamphetamine labs. As such, the statement was reasonable and the state court judge issuing the warrant was entitled to rely upon it in granting the no-knock request.
Finally, the defendant argues that Magistrate Judge Thalken incorrectly determined that even if the warrant were insufficient and the no-knock provision unjustified, the Leon good faith exception applies in this case. See United States v. Leon, 468 U.S. 897, 922 (1984) (establishing a good faith exception when probable cause is found lacking). Under this exception, a lack of probable cause will not require suppression of the evidence if the officers in good faith relied on a warrant signed by "a neutral and detached magistrate" and the officers' reliance on the warrant was "objectively reasonable." United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (issuing judge must have substantial basis that probable cause existed). Here, for the reasons noted above, Omaha police officers believed that the facts established probable cause to search the 28th Avenue for evidence of a clandestine methamphetamine lab. Thus, the officers' reliance on the search warrant issued by a neutral state court judge was reasonable.
IT IS THEREFORE ORDERED:
1. Magistrate Judge Thalken's report and recommendation, Filing No. 38, is adopted in its entirety.
2. The defendant's objections, Filing No. 41, to the report and recommendation are overruled; and
3. The defendant's motion, Filing No. 27, to suppress evidence is denied.