Opinion
Case No. 04-40031-01-RDR.
September 1, 2004
MEMORANDUM AND ORDER
This is a criminal prosecution involving the cultivation of marijuana and possession of firearms. This case is before the court upon a motion to suppress evidence obtained during a search of defendant's residence in Council Grove, Kansas. There are three arguments made in support of the motion to suppress: first, that probable cause did not support the search of defendant's residence; second, that the search warrant was overbroad; and third, that the officers did not knock and announce their presence prior to entering the residence to execute the search warrant.
Probable cause
The affidavit for the search warrant states that on August 6, 2002 Kansas Highway Patrol officers conducting aerial surveillance thought they spotted a marijuana field and noted its location in Morris County, Kansas. On August 28, 2002, Kansas Highway Patrol officers located and observed the field on the ground. The next day the officers placed an electronic surveillance device at the field. During the following several days the officers checked the surveillance device three times and found no change in the marijuana field. On September 16, 2002, law enforcement officers returned to the field and checked the electronic surveillance device. The device had video recorded two individuals harvesting the marijuana.
Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). This court must give great deference to the issuing judge's determination of probable cause. U.S. v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997). Probable cause does not require direct evidence or personal knowledge that evidence will be found at a certain location. U.S. v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997)cert. denied, 523 U.S. 1079 (1998). It is sufficient when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. Id.
In this instance, the search warrant affidavit established a fair probability that defendant was harvesting marijuana in the field the Kansas Highway Patrol troopers located in Morris County outside of Council Grove, Kansas. The affidavit states that two people in the community, one of whom delivered mail to defendant, identified defendant from the recording. The agent making the affidavit also compared the recording with defendant's driver's license picture and concluded that he believed defendant was one of the persons harvesting marijuana in the recording.
Defendant asserts that probable cause did not exist because one of the persons who looked at the videotape was only 60% sure that defendant was one of the persons harvesting marijuana. However, one hundred percent reliability or certainty is not critical to the issuance of a warrant. See U.S. v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986). The key is whether the magistrate's probable cause determination had a "substantial basis . . . for concluding that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236. The court does not believe the absence of complete certainty by one of the persons identifying defendant in the videotape detracts from the substantial basis for the issuance of a warrant in this instance.
The affidavit for the search warrant fails to mention that some persons in the Morris County Sheriff's Office were shown the video recording and could not identify either person shown. However, defendant has not demonstrated a deliberate falsity or reckless disregard for the truth by the affiant. Moreover, the information omitted from the affidavit does not vitiate probable cause for the issuance of the search warrant in our opinion. Therefore, we find no grounds for suppression on the basis of information omitted from the search warrant affidavit. See Franks v. Delaware, 438 U.S. 154 (1978).
Defendant also contends that there was no probable cause to believe that evidence of the suspected crime would be found at defendant's residence. It should be remembered, however, that the search warrant was targeted at many items which would commonly be found in or around a home. For instance, the search warrant was directed at the clothes pictured on the persons in the videotape. It is reasonable to assume that clothes will be kept at a person's house. It is also reasonable to assume that records of a drug operation may be found at a suspect's home when they have not been found at the scene of the illegal activity. See U.S. v. Pace, 955 F.2d 270, 277 (5th Cir. 1992). The special agent who signed the affidavit had several years of law enforcement experience and training in drug investigations. He identified many items associated with outdoor marijuana cultivation that one could logically assume would be kept in or around a residence. Such objects would include various plant starting items, artificial light, records, weapons and drug paraphernalia.
We acknowledge that the Tenth Circuit has not held that the home of a drug crime suspect may be searched simply because the suspect has been connected to illegal drug activity at a different location. U.S. v. Nolan, 199 F.3d 1180 (10th Cir. 1999); see also U.S. v. Rowland, 145 F.3d 1194 (10th Cir. 1998) (receipt of child pornography away from home does not provide probable cause to search home). But, the facts inNolan and Rowland are distinguishable from the facts in this case. Other cases from this district have found a nexus between the home of a marijuana cultivation suspect and evidence of marijuana cultivation.U.S. v. Kelley, 6 F.Supp.2d 1168, 1178-79 (D.Kan. 1998); U.S. v. Kalinich, 2001 WL 709537 (D.Kan. 2001).
We believe the facts stated in the affidavit for the search warrant in this case are sufficient to establish probable cause for the issuance of the search warrant.
Overbroad
Defendant asserts that the search warrant was overly broad because it authorized the seizure of personal records and clothing. The warrant authorized the seizure of many items that are clearly related to the crime of marijuana cultivation. The warrant also authorized the seizure of: "records, including but not limited to calendars, evidence of ownership or occupancy of the property, bank records, income tax returns, records of associates, journals. . . . a tan t-shirt, pair of blue jean pants, tan fedora hat, a light blue t-shirt, dark colored pants, dark-colored boonie hat, . . ."
The court agrees with the government's response to this part of the motion to suppress. The description of items to be seized must be judged in a practical way. U.S. v. Janus Industries, 48 F.3d 1548, 1554 (10th Cir.) cert. denied, 516 U.S. 824 (1995). We believe the description contained in the search warrant provides a reasonably specific identification of the objects which are authorized to be seized, given that this was a drug investigation. See U.S. v. Wicks, 995 F.2d 964, 973-74 (10th Cir.) cert. denied, 510 U.S. 982 (1993).
In addition, defendant has not identified any items that were actually seized as a consequence of the alleged overly general description of evidence to be collected in the warrant. The Tenth Circuit has held that if a warrant is overly broad, only those items confiscated under the overbroad portion of the warrant are suppressed if the warrant also contains specific language. U.S. v. Brown, 984 F.2d 1074, 1078 (10th Cir.) cert. denied, 510 U.S. 873 (1993). Because defendant has not identified any items which were confiscated because of the alleged overbroad language, the court shall deny this argument for suppression. See U.S. v. Reno, 196 F.Supp.2d 1150, 1161 (D.Kan. 2002).
Knock and announce
Defendant asserts that the court should suppress the evidence obtained from the search of his residence because the officers executing the search warrant did not knock and announce prior to entering the home.
Section 3109 of Title 18 United States Code states in effect that an officer may not break into a house to execute a search warrant without first giving notice of his authority and purpose and being refused admittance. The statute is not directly applicable to state law enforcement officers, but it serves as a guide to determining reasonableness under the Fourth Amendment. U.S. v. McCloud, 127 F.3d 1284, 1286 n. 1 (1997). Officers executing a search warrant may assume that they have been refused admittance when this is a reasonable inference from the circumstances, for instance when the occupants do not admit the officers within a reasonable period of time. U.S. v. Gallegos, 314 F.3d 456, 459 (10th Cir. 2002). "When officers do knock and announce . . . `the amount of time that officers must wait after knocking and announcing depends on the particular facts and circumstances of each case.'" U.S. v. Cline, 349 F.3d 1276, 1289 (10th Cir. 2003) quotingGallegos, 314 F.3d at 460.
Two witnesses testified during the hearing on the instant suppression motion. Special Agent Greg Skelton of the Kansas Bureau of Investigation testified that he and several other officers approached the door to the back porch of defendant's residence at approximately 9:00 a.m. on September 18, 2002. Skelton stated that he knocked on the door to the back porch and yelled "police, search warrant." He said that he heard no response and waited 20 to 25 seconds before entering the back porch. He looked through the glass on the back door to the house. He saw no one coming to the door. He stated that he knocked and announced again and waited 10 to 15 seconds. Again, he heard no signs of life. So, he entered the back door. He did not see or hear anyone until he was at or near the second floor of the house, where he saw defendant's daughter-in-law, Brandi Webb.
Brandi Webb testified that she was in bed, but awake, with her 1½-year-old daughter in her room on the second floor of the home when the search warrant was executed. She testified that she did not hear the agents say "police, search warrant" until they were already downstairs in the house. She stated that she would have heard any knocking on the back door or yelling outside the house that occurred, and that she heard none.
After carefully listening to the testimony, the court concludes that Special Agent Skelton was a credible witness. Because Brandi Webb was in bed with her young daughter on the second floor of the residence when the officers approached the back porch and back door, there is reason to doubt that she heard Special Agent Skelton knock and announce. There is also reason to believe that when she heard the words "police, search warrant" the officers were actually on the back porch, rather than inside the house. We further find that Special Agent Skelton and his fellow officers could reasonably infer from the time they waited before entering the residence that they were refused admittance.
We find the testimony of Special Agent Skelton to be more credible than the testimony of Brandi Webb on the question of whether Skelton knocked and announced before entering defendant's residence. Therefore, we reject defendant's knock and announce argument.
Conclusion
For the reasons listed above, the court shall deny defendant's motion to suppress.
IT IS SO ORDERED.