U.S. v. Knapp

• Decision Date: 23 July 1993
• Docket Number: No. 92-1243,92-1243
• Citation: 1 F.3d 1026
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KNAPP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1026

1 F.3d 1026

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KNAPP, Defendant-Appellant.

No. 92-1243.

United States Court of Appeals Tenth Circuit.

July 23, 1993.

John M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty.; Charlotte J. Mapes, Asst. U.S. Atty., with him on the briefs), Denver, CO, for plaintiff-appellee.

Virginia L. Grady, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant.

Before MOORE, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

A jury convicted Mr. Knapp of manufacturing, distributing and possession with the intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Mr. Knapp appeals asserting that evidence seized pursuant to two search warrants should have been suppressed.

The disputed evidence was seized from two separate dwellings. The first dwelling was an uninhabited house where Mr. Knapp conducted a marijuana growing operation. Mr. Knapp contends the trial court erred in finding that the officer's affidavit supporting the search warrant did not contain knowing or reckless misstatements of fact or material omissions. Mr. Knapp also argues the law enforcement agents improperly searched the curtilage of this house by walking around to the backyard prior to obtaining the search warrant. Upon executing the search of the second dwelling, Mr. Knapp's residence, the officers knocked and announced their purpose before smashing in Mr. Knapp's front door with a battering ram. Mr. Knapp contends the execution of the warrant was unlawful because the law enforcement agents only waited ten to twelve seconds after knocking before they entered the residence.

In reviewing the denial of a motion to suppress, we accept the trial court's findings of fact unless they are clearly erroneous and we view the evidence on appeal in a light most favorable to the government. United States v. Soto-Ornelas, 863 F.2d 1487, 1490 (10th Cir.1988).

I.

We first examine the facts supporting the issuance of the search warrant for the uninhabited house. An affidavit submitted by Agent Olachea, the investigating agent from the Drug Enforcement Administration, was instrumental in obtaining the warrant. According to the affidavit, a confidential informant, Kevin Riley, told law enforcement officers that Mr. Knapp had a marijuana growing operation in the uninhabited house. Mr. Riley estimated that there were 150 marijuana plants in the house, and observed the smell of marijuana throughout the house. Apparently, Mr. Knapp wanted to hire Mr. Riley as a caretaker of the marijuana plants in exchange for living quarters. Mr. Riley also related that Mr. Knapp required him to duck down in the car en route to the uninhabited house in order to conceal its exact location.

Agent Olachea's affidavit also revealed similar information gained from a second informant, Shawn Waller. Mr. Waller stated that Mr. Knapp was growing forty to sixty marijuana plants which were sold for $250 to $300 per ounce. On one occasion, Mr. Waller accompanied law enforcement officers to the grow operation to identify the location of the uninhabited house. Subsequently, with the authority of drug enforcement agents, Mr. Waller made a wired, controlled buy from Mr. Knapp. During the controlled buy, Mr. Knapp related to Mr. Waller the expense of maintaining the growing operation at the uninhabited house. The affidavit further stated that before obtaining a search warrant for the uninhabited house, the drug enforcement agents drove to the house, knocked on the front door, and received no response. The officers then walked around to the back of the house and observed a strong odor of marijuana near the electric meter. The agents did not cross any fences to make these observations. Agent Olachea determined the utilities at the uninhabited house were registered to Ron Joseph. Mr. Knapp's full name is Ronald Joseph Knapp. Agent Olachea's four-page affidavit contained substantial detail and precision regarding dates and locations, and the magistrate correspondingly issued a search warrant for the uninhabited house. When the warrant was executed, no one was present in the house and growing marijuana was found behind a false wall in the basement together with equipment designed to facilitate the growing.

At the suppression hearing, the defendant presented evidence that conflicted with the information contained in the affidavit. Agent Olachea's testimony mirrored the information that he had provided in his affidavit. Kevin Riley appeared for the defense and denied making all statements attributed to him. Specifically, Mr. Riley testified that although he was at the uninhabited house he did not observe any evidence of a marijuana growing operation. The defense also presented testimony of an investigator from the public defender's office who had interviewed Mr. Waller in relation to Mr. Knapp's case. According to the investigator, Mr. Waller denied that he accompanied law enforcement officers to the uninhabited house, or that he participated in the recorded controlled buy of marijuana from Mr. Knapp. Mr. Knapp therefore assumes the statements contained in Agent Olachea's affidavit were intentionally or recklessly false, and asserts that without these statements no probable cause existed and the search warrant should not have been issued.

According to the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), when a defendant shows that an affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, the search warrant must be voided if the affidavit's remaining content is insufficient to establish probable cause. The burden was on Mr. Knapp to demonstrate falsity or reckless disregard for the truth in Agent Olachea's affidavit. United States v. Sullivan, 919 F.2d 1403, 1424 (10th Cir.1990). In reviewing the motion to suppress, the district court properly focused on the credibility of the affiant, Agent Olachea. See United States v. Corral-Corral, 899 F.2d 927, 934 (10th Cir.1990).

Mr. Knapp argues the trial court erred by accepting the credibility of Agent Olachea over the recanted testimony of the two informants. We give deference to the trial court in determining the credibility of witnesses. We note that Mr. Waller's denial of his presence at the recorded controlled buy gives some indication as to his credibility. Agent Olachea's affidavit and subsequent testimony are supported by the record, and it certainly was not clearly erroneous for the district court to accept his testimony over that of the recanting informants.

Moreover, Mr. Knapp could not show that any potential inaccuracies in the affidavit were deliberate falsities on the part of Agent Olachea. "It is not enough to show that the informant lied to an unsuspecting affiant, or that an affiant's negligence or innocent mistake resulted in false statements in the affidavit." United States v. Owens, 882 F.2d 1493, 1499 (10th Cir.1989). Therefore, as long as the affidavit reflected what Agent Olachea believed to be true, the warrant was properly issued.

Mr. Knapp next contends the affidavit supporting the search warrant omitted two very significant facts. The first was that Mr. Riley's information regarding Mr. Knapp's grow operation was at least six months old. The second related to the fact the government failed to disclose the benefits conferred upon Mr. Waller for his cooperation. This Circuit has extended Franks to hold that it is a Fourth Amendment violation to knowingly or recklessly omit from an affidavit information that would have vitiated probable cause. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir.1990). Although the evidence omitted from the affidavit would have been marginally beneficial to Mr. Knapp, the omissions were not vital to the magistrate's probable cause determination. A review of the affidavit shows probable cause existed assuming the omitted facts were therein contained. Thus, the district court properly denied the motion to suppress based on the veracity of the affidavit.

Mr. Knapp next contends the drug enforcement agents violated his Fourth Amendment rights by going into the unfenced portion of Mr. Knapp's yard without a warrant. Only the curtilage of the home warrants the Fourth Amendment protections that attach to the home itself. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). "[C]urtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Id. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). The district court's determination that the unenclosed area should not be considered curtilage was factual and therefore subject to a clearly erroneous standard of review. United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993).

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