Summary: Defendant moved to suppress evidence discovered during a search of his rural property, arguing the search warrant lacks probable cause; the warrant affidavit fails to properly draw a nexus to search the property; the warrant was issued on conclusory statements; the supporting affidavit contains misleading statements and omissions; and the breadth of the search warrant rendered it unreasonable. The Court finds there was probable cause to issue the search warrant, there was a sufficient nexus to the rural property, and even if probable cause was lacking, the good faith exception to the exclusionary rule would apply in this case. Defendant’s motion to suppress is denied.

Case Name: USA v. Sidney Dale Pegel 

Case Number: C3-03-59

Docket Number:14 

Date Filed: 11/12/03 

Nature of Suit:000

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION
 

            Before the Court is a motion by Defendant to suppress evidence discovered during the search of property located in Davenport, North Dakota (doc. #14). Plaintiff filed a brief in opposition to the motion (doc. #15). The Court permitted Defendant to file a supplemental brief (doc #24) and Plaintiff filed a reply to the supplemental brief (doc #25).

ISSUES AND ARGUMENTS

            Defendant moves to exclude the evidence obtained at his rural property in Davenport, arguing the search warrant lacks probable cause; the warrant affidavit fails to properly draw a nexus to search the property; the warrant was issued on conclusory statements; the supporting affidavit contains misleading statements and omissions; and the breadth of the search warrant rendered it unreasonable. Plaintiff contends there is evidence the defendant was trafficking in narcotics which is sufficient to establish probable cause to search the property, and even if probable cause is lacking, the good faith exception to the exclusionary rule applies.

SUMMARY OF HOLDING

            The judge authorizing the search of the Davenport property had a substantial basis for concluding probable cause existed for the issuance of a search warrant; there was sufficient information to establish a nexus to search the property; and the search warrant was not overbroad. The warrant affidavit contains reasonable inferences based on the affiant’s experiences and knowledge of the case; therefore, the search warrant is not invalid based on an argument it was issued pursuant to conclusory statements. Further, Defendant did not establish deliberate falsehood or reckless disregard of the truth regarding the alleged false or misleading statements and alleged omitted information as required under Franks v. Delaware, 438 U.S. 154 (1978). Finally, even if probable cause was lacking, the Court finds the good faith exception to the exclusionary rule would apply in this case.

FACTS

            Law enforcement officers had gathered information that Defendant continued to be involved with narcotics. On March 20, 2003, after Defendant met with his probation officer, law enforcement officers began following Defendant’s vehicle from the Parole and Probation Office. Defendant drove to his residence at 1827 4th Street North in Fargo, North Dakota. Law enforcement officers observed Defendant stop his vehicle, enter his house, and return to the vehicle with a black square briefcase. The officers continued following Defendant as he traveled at what officers described as a “high rate of speed.” Eventually, Defendant was stopped and arrested at a rural location in Cass County.

            During the search of the vehicle, no contraband or evidence of a crime was found; however, the briefcase was not in the vehicle. Officers began retracing the route taken prior to the stop and found the briefcase. Inside the briefcase, officers discovered approximately 200 grams of methamphetamine; $24,904 in currency; and indicia of Mr. Pegel, including an application for a water use permit for property officers learned was located in Davenport, North Dakota.

            Following Defendant’s arrest, Detective Greg Warren of the West Fargo Police Department applied for a search warrant to search Defendant’s residence located at 1827 4th Street North, Fargo, North Dakota. The Honorable Michael McGuire, Judge of the East Central Judicial District in North Dakota, issued a search warrant. A search of the residence revealed no evidence or contraband. Detective Warren then applied for a search warrant to search property located at 4799 163rd Avenue Southeast, Davenport, North Dakota. Judge McGuire authorized a search and issued a search warrant. Found during the search was approximately 276.71 grams of methamphetamine, a scale, baggies, $693 in cash, and indicia of occupancy for Sidney Pegel.

            Defendant moves to suppress the evidence obtained at the Davenport property.

ANALYSIS

            “The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ and provides that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’” United States v. Koons, 300 F.3d 985, 990 (8th Cir. 2002) (quoting U.S. Const. amend. IV). “A warrant is supported by probable cause ‘if there is a fair probability that contraband or evidence of a crime will be found in the place to be searched.’” United States v. Reinholz, 245 F.3d 765, 776 (8th Cir. 2001), cert. denied, 534 U.S. 896.

            At issue in this case is a search warrant authorized by a state judge and executed by state law enforcement officers. When evidence obtained by state officers is used against a defendant in a federal court, the United States Supreme Court has stated:

In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.

Elkins v. United States, 364 U.S. 206, 223-24 (1960). The Supreme Court later elaborated: “The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to by judged as if the search and seizure had been made by federal officers.” Preston v. United States, 376 U.S. 364, 366 (1964). Following this precedent, it is well-settled in the Eighth Circuit that evidence obtained by state law enforcement officers offered in a federal prosecution is to be resolved by a Fourth Amendment analysis. See United States v. Lewis, 183 F.3d 791, 793-94 (8th Cir. 1999); United States v. Applequist, 145 F.3d 976, 978 (8th Cir. 1998); United States v. Bell, 54 F.3d 502, 504 (8th Cir. 1995); United States v. Maholy, 1 F.3d 718, 721 (8th Cir. 1993); United States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987). Therefore, the exclusionary rule only requires a federal court to exclude evidence seized in violation of the United States Constitution. United States v. Wright, 16 F.3d 1429, 1434 (8th Cir. 1994), cert. denied, 512 U.S. 1243.

1. Probable Cause

            Defendant argues the search warrant lacked probable cause under both federal and state law. Defendant argues, alternatively, that even if the search of the Davenport property was reasonable under the Fourth Amendment, the search violates the North Dakota Constitution. As noted above, it is a well-settled principle that evidence obtained by state law enforcement officers offered in a federal prosecution is to be resolved by a Fourth Amendment analysis. See e.g. Lewis, 183 F.3d at 793-94; Applequist, 145 F.3d at 978; Bell, 54 F.3d at 504. Therefore, this Court is only required to exclude evidence seized in violation of the United States Constitution. Wright, 16 F.3d at 1434. Thus, the Court will analyze whether probable cause existed to issue the search warrant for the Davenport property under federal case law while expressing no opinion regarding the validity of the search under North Dakota law.

            “Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place.” United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000). A judge or magistrate issuing a search warrant “is simply to make a practical, common-sense decision, whether given all the circumstances set forth in the affidavit, . . . 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). When reviewing the legal sufficiency of the basis of issuance of a search warrant, the Court must determine whether the issuing judge had “a substantial basis” for concluding probable cause existed for the issuance of the search warrant. Id.; United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994).

            Probable cause can be established by the observations of trained law enforcement officers and by circumstantial evidence. United States v. Wells, 223 F.3d 835, 839 (8th Cir. 2000). In this case, several factors suggest the existence of probable cause. Defendant was observed driving to his residence in Fargo after meeting with his probation officer. Defendant briefly stopped at his house, picked up a briefcase, and left again. Officers continued following Defendant as he began driving at what officers described as “a very high rate of speed.” Once Defendant was stopped and detained, officers searching the vehicle noted the briefcase he was seen leaving his Fargo residence with was missing. Upon retrieval of the briefcase along the side of the road, officers discovered $24,904 in currency and approximately 200 grams of methamphetamine, evidence suggesting Defendant was trafficking drugs. Detective Warren’s affidavit in support of the search warrant also indicates Defendant has a past criminal history of involvement with narcotics; his probation relates to his involvement with drugs; parole searches in the past have found methamphetamine at his Fargo residence on at least one occasion; officers had gathered information to suspect that Defendant continued to be involved with narcotics; and in his experience people trafficking in drugs often keep evidence of the drug trade in their residence, outbuildings, or vehicles. The Court finds the judge had a substantial basis for concluding probable cause existed for the issuance of a search warrant and for Defendant’s property, as discussed below.

2. Nexus to Search Davenport Property

            Before a warrant may properly be issued, there must be evidence of a nexus between the contraband and the place to be searched. United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000).

When construing the validity of a search warrant, the Eighth Circuit has permitted logical and reasonable inferences based on the evidence. See United States v. Carpenter, 341 F.3d 666, 671-72 (8th Cir. 2003) (finding it not unreasonable for an officer to infer contraband would be found at residence even though affidavit failed to present facts to indicate existence of a nexus between the residence and the suspected contraband); United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000) (noting judges may draw reasonable inferences in determining whether probable cause exists and law enforcement officers may make reasonable inferences in preparing affidavits in support of a warrant).

            Direct evidence linking a crime to the location to be searched is not required to support a search warrant. United States v. Whitner, 219 F.3d 289, 297-98 (3d Cir. 2000). In the case of drug dealers, several courts have held it is reasonable to conclude evidence of the drug trade is likely to be found in a dealer’s residence. Carpenter, 341 F.3d at 671-72; Whitner, 219 F.3d at 297-98; United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999), cert. denied, 528 U.S. 1119; United States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999), cert. denied, 526 U.S. 1125; United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993); United States v. Davidson, 936 F.2d 856, 859-60 (6th Cir. 1991); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). An officer’s experienced observations can be a logical element linking contraband to the residence of an identified criminal. See Luloff, 15 F.3d at 768 (stating observations of drug trafficking along with officer’s statement in affidavit that drug dealers often store evidence in their residences provided probable cause for search of dealer’s house); United States v. Benevento, 836 F.2d 60, 70-71 (2d Cir. 1987), cert. denied, 486 U.S. 1043 (noting a government agent’s expert opinion, such as an averment that drug traffickers often keep drug related evidence in their homes, is an important factor to be considered by the judge when making a probable cause determination).

            In this case, law enforcement officers recovered $24,904 in currency and 200 grams of methamphetamine in a briefcase that was allegedly discarded and recovered along the road. The substantial quantity of drugs, an amount greater than what typically could be considered for personal use, see United States v. Rhodenizer, 106 F.3d 222, 226 (8th Cir. 1997) (officer testifying 62.06 grams of methamphetamine is an amount more than that typically kept for personal use), and a large amount of cash in a briefcase support a finding that Defendant was engaged in drug trafficking. Thus, it is reasonable to conclude evidence of the drug trade would likely be found at Defendant’s residence to warrant a search of the property.

            Defendant argues law enforcement officers did not present an affidavit permitting the issuing judge to infer Defendant resided at the Davenport address. In the briefcase officers found a Cass County Rural Water users certificate and agreement listing Defendant’s name. Officers contacted Cass County Rural Water Users and confirmed Defendant had property at 4799 163rd Avenue Southeast, Davenport, North Dakota. Officers located the property and saw a “tan rambler that was partially sided.” Officers also ran license plate checks of the vehicles located on the property and three of the vehicles were registered to Defendant. Additionally, officers spoke with neighbors who indicated an individual matching Defendant’s description began renting the residence about a week and a half earlier. Although ownership of the Davenport property has not been clearly determined, Defendant has not disputed that he has a legal right to reside on the property in Davenport. Whether Defendant exclusively resides at the Davenport property or considers the property to be his “home” is inconsequential. The evidence presented to the judge indicates Defendant was closely connected to the Davenport property as neighbors reported someone matching Defendant’s description began renting the residence a week and a half earlier, Defendant applied for a water use permit for the property, and Defendant had vehicles registered in his name on the property. After reviewing the information available to the affiant at the time the supporting affidavit was prepared, the Court is satisfied it was reasonable to infer Defendant owned or at least had a legal right to reside on the property to warrant a search of the property.

            Law enforcement officers reasonably believed Defendant was fleeing police and heading to his property located in Davenport with the briefcase. The Eighth Circuit has said: “As a matter of common sense, it is logical to infer that someone in possession of valuable contraband would store that contraband in a safe, accessible location such as his or her residence.” Carpenter, 341 F.3d at 671-72. Based on all the information above and because it is reasonable to believe Defendant was traveling in the general direction of his Davenport property, it is logical and reasonable to infer evidence of the drug trade would likely be found there. Therefore, the Court finds there was sufficient information to establish a nexus to search the Davenport property.       

3. Conclusory Statements, Misleading and Omitted Information, and Breadth of Warrant

            Defendant argues the warrant was issued on conclusory information. When reviewing an affidavit in support of a search warrant application, deference is to be accorded an issuing magistrate’s or judge’s determination of probable cause, recognizing that “such affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Hill, 91 F.3d 1064, 1070 (8th Cir. 1996) (quoting United States v. Doty, 714 F.2d 761, 763-64 (8th Cir. 1983)). Additionally, there is a presumption of validity with respect to the affidavit supporting the search warrant. Franks v. Delaware, 438 U.S. 154, 171(1978).

            Defendant objects to the statements in the supporting affidavit which include that Defendant “owns” property in the area of Davenport, that Defendant was “believed to be heading” to the Davenport residence, and that “it is not uncommon for people who traffic in narcotics to keep proceeds from the drug transactions along with quantities of controlled substances in their residence, out buildings, or vehicles.” Detective Warren has been a law enforcement officer since 1975. He testified at the suppression hearing that he has 1500-2000 hours of law enforcement training, approximately 200 of these hours related to drug investigations and drug crimes. The Eighth Circuit has stated that law enforcement officers can make reasonable inferences in preparing affidavits in support of a search warrant. United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000). The Court finds these statements were reasonable inferences based on the officer’s experiences and knowledge of the case.

            Defendant also challenges the issuance of the search warrant based on allegations law enforcement officers made false or misleading statements and omitted information in the supporting affidavit. This challenge is governed by the standard set out by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In order to prevail on a Franks challenge, a defendant must show: “1) that a false statement knowingly and intentionally, or with reckless disregard to the truth, was included in the affidavit, and 2) that the affidavit’s remaining content is insufficient to provide probable cause.” United States v. Box, 193 F.3d 1032, 1034-35 (8th Cir. 1999). A similar analysis applies to omissions of fact, in which a defendant must show: “1) that facts were omitted with the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading, and 2) that the affidavit, if supplemented by the omitted information, could not support a finding of probable cause.” Id. To render a search warrant invalid and exclude the fruits of the search, the allegation of perjury or reckless disregard for the truth mush be established by a preponderance of the evidence. United States v. Helmel, 769 F.2d 1306, 1321 (8th Cir. 1985) (quotations and citations omitted).

            Defendant contends the judge issuing the search warrant was misled by the affidavit averments stating Defendant “owns” property near Davenport and that he “lived at the Davenport address.” Even assuming, arguendo, these statements are false or misleading, there is no evidence that Detective Warren made the statements knowing they were false or with reckless disregard for the truth. See Franks, 438 U.S. at 171 (stating there “must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof”). As noted earlier, these statements are reasonable inferences drawn from the facts known to the officers at the time the supporting affidavit was prepared.

            Defendant also asserts Detective Warren omitted information in his affidavit, such as the fact that the prior search of Defendant’s residence in Fargo revealed no evidence or contraband, that the house in Davenport was under a “major renovation,” and that the water use documents also listed a Fargo address. Similarly, Defendant has failed to show how the statements Defendant contends were omitted and should have been included were omitted with the intent to make, or in reckless disregard, such that if supplemented with the information probable cause would be lacking. The Court finds Defendant did not establish the requisite elements under Franks to render the search warrant invalid for the alleged false or misleading statements or alleged omitted information.

            Finally, Defendant argues the breadth of the warrant underscores its unreasonableness. Defendant does not argue, however, that the warrant is a “general warrant.” Defendant essentially argues the unreasonableness stems from the fact that “[t]he broad authority sought for the Davenport search was significantly different from the authority sought for the [Fargo] warrant.”

            Under the Fourth Amendment to the United States Constitution, a warrant shall not issue except upon a showing of probable cause, particularly describing the place to be search and the items to be seized by the warrant. United States v. Martin, 866 F.2d 972, 977 (8th Cir. 1989). A court should based its determination on whether a warrant satisfies the Fourth Amendment on such factors as the purpose for which the warrant was issued, the nature of the items to which it is directed, and the total circumstances surrounding the case. Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir. 1985). In this case, the search warrant described with particularity the places which can be search and the items to be seized. Defendant objects to the search of “all vehicles within the curtilage of this rural property.” A warrant’s validity is determined on the basis of the relevance to which it is directed to the offense under investigation. Milliman, 774 F.2d at 250. Because the judge issuing the search warrant had no idea where evidence of contraband might be found on the property, he made a reasonable decision to allow the officers to conduct a thorough search of the property. See United States v. Bieri, 21 F.3d 811, 815-16 (8th Cir. 1994) (allowing search of home, outbuildings, and vehicles on the farm). It was reasonable for the judge to allow the warrant for the buildings on the property and the vehicles because he reasonably expected the officers could find evidence or contraband in either or both places. Id. The Court finds the search warrant was within the parameters of the Fourth Amendment.

4. Good Faith

            Although the Court finds there was probable cause to issue the search warrant, even if probable cause was lacking, the good faith exception would apply in this case. In United States v. Leon, 468 U.S. 897, 916 (1984), the Supreme Court explained that the exclusionary rule was created in order to deter police misconduct in violation of the Fourth Amendment, not to punish the errors of magistrates or judges. Thus, evidence obtained under the authority of a facially valid search warrant will not be suppressed if the executing officers acted in objective good faith on the magistrate’s or judge’s probable cause determination. Id. at 922.

            There are four situations in which the executing officers cannot reasonably rely on the warrant and suppression is an appropriate remedy: (1) where the issuing judicial officer was misled by information in the affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth; (2) where the issuing officer “wholly abandoned his judicial role;” (3) where the affidavit supporting the warrant contained so few indicia of probable cause “as to render official belief in its existence entirely unreasonable;” and (4) where the warrant itself is so facially deficient that no executing officer could reasonably presume it to be valid. Id. at 923; United States v. Maholy, 1 F.3d 718, 722 (8th Cir. 1993).

            Defendant argues the good faith exception does not apply because the judge issuing the search warrant was misled by false information, the warrant so lacked probable cause that reliance was unreasonable, and no reasonable officer could rely on the facially deficient warrant. First, the Court determined earlier that Defendant did not present sufficient evidence required under Franks to render the search warrant invalid for false or misleading statements or for omitted information. Thus, the Court does not find that the judge issuing the search warrant was misled.

            Second, the officers, believing they had probable cause to search, took the information they discovered during their investigation of Defendant to a judge who concluded it was legally sufficient to show probable cause to search the Davenport property. Under Leon, the “good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite a magistrate’s [or judge’s] determination.” Leon, 468 U.S. at 922 n.23. Considering the totality of the circumstances in this case, the officers held an objectively reasonable belief, which was not entirely unreasonable, that they were complying with the Fourth Amendment when they relied on the search warrant and conducted a search of the Davenport property. Thus, the Court finds Defendant’s arguments that the warrant so lacked probable cause that reliance was unreasonable and that no reasonable officer could rely on the facially deficient warrant unpersuasive. Therefore, the Court finds even if probable cause was lacking, the good faith exception to the exclusionary rule would apply in this case and the evidence seized at the Davenport property is admissible in federal court.

CONCLUSION

            For the above reasons, Defendant’s motion to suppress evidence seized at the Davenport property is DENIED. 

            IT IS SO ORDERED.

            Dated this ______ day of November, 2003.

                                                                        __________________________ 

                                                                        Ralph R. Erickson, District Judge

                                                                        United States District Court