U.S. v. Lamorie

Citation100 F.3d 547
Decision Date26 July 1996
Docket NumberNo. 96-1411,96-1411
PartiesUNITED STATES of America, Appellant, v. Lawrence D. LAMORIE; Patricia L. LaMorie, Appellees. Submitted:
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Appeal from the United States District Court for the District of North Dakota.

Cameron Wayne Hayden, argued, Bismarck, ND (John Schneider, U.S. Atty., on the brief), for appellant.

Timothy Q. Purdon, argued, Bismarck, ND, for appellees.

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

The United States appeals from two orders of the District Court suppressing evidence against defendants Lawrence D. and Patricia L. LaMorie. Because we conclude that the warrant under which the LaMories' trailer home was searched was supported by probable cause, we reverse and remand.

I.

On April 13, 1995, the post office and convenience store in Arena, North Dakota, were burglarized and burned to the ground. Federal and state law enforcement officials began investigations, and on May 3, 1995, Deputy Steven Hall of the Burleigh County Sheriff's Department applied for a warrant to search the LaMories' trailer home in Wing, North Dakota.

Deputy Hall appeared before Burleigh County District Judge Benny Graff in connection with the warrant application and testified that soon after the Arena burglary, postal money orders stolen from the Arena post office began to appear in the Bismarck area. Store employees gave physical descriptions of the persons cashing the money orders and indicated that they used New York identification. Another deputy stationed in Wing had information that two families of New Yorkers were in the process of moving to Wing, and their physical descriptions matched the descriptions given by the store clerks in the Bismarck area. A federal postal inspector had identified five suspects in the post office burglary and the cashing of the stolen money orders: Lawrence and Patricia LaMorie, Jerry and Vicki Allen, and Jeffrey Royce. All five suspects were from New York and had recently arrived in North Dakota. The Allens and Royce were the first to move into the trailer home, which Patricia LaMorie had recently inherited, and the LaMories later joined them. Royce had been positively identified passing a stolen money order in Wing on April 22.

On May 2, the day before Deputy Hall applied for the warrant, officers in West Fargo arrested the Allens for possession of a controlled substance. When they were arrested, the Allens had in their possession money orders stolen from the Arena post office. In separate interviews with the West Fargo police, the Allens implicated themselves in the Arena burglary, the burning of the post office, and the ongoing scheme to pass the stolen money orders. The Allens also implicated Royce, but they apparently did not implicate the LaMories in the burglary at that time. On the morning of May 3, Deputy Hall interviewed Vicki Allen by telephone, and she told him that property stolen from the Arena post office had been transported to the trailer in Wing where the Allens and the LaMories were living. Allen indicated that the money order validation machine from the Arena post office had been set up in the kitchen of the trailer, where the burglars validated approximately $26,000 in blank money orders. Stamps, blank money orders, and costume jewelry from the convenience store also had been taken to the trailer, according to Allen. Deputy Hall testified that Allen told him that the LaMories were out of town but were expected to return to Wing by the weekend.1

Hall also noted that Allen and other investigators on the case had indicated that Lawrence LaMorie had a lengthy criminal record, was in possession of several firearms, and was extremely dangerous. After hearing this evidence, Judge Graff granted the search warrant for the LaMories' trailer. Because of Lawrence LaMorie's criminal history and the evidence that he was dangerous, the judge granted a "no-knock" warrant in accordance with state law, meaning that the officers executing the warrant were not required to knock or announce their presence before entering the property.

Officers executed the warrant on May 4, discovering costume jewelry matching Vicki Allen's description but none of the other property she claimed would be in the trailer. In plain view, however, the officers discovered a semi-automatic rifle, a sawed-off shotgun, and ammunition. Lawrence LaMorie was indicted by a federal grand jury as a felon in possession of the firearms and ammunition, in violation of 18 U.S.C. Section(s) 922(g)(1) (1994), and both LaMories were indicted for possession of the unregistered sawed-off shotgun, in violation of 26 U.S.C. Section(s) 5861(c), (d) (1994).

Patricia LaMorie moved to suppress the firearms. A magistrate judge recommended suppression, finding that Deputy Hall presented no evidence of Vicki Allen's reliability or corroboration of the information provided by her. The Magistrate Judge also noted that Hall failed to disclose to Judge Graff that Allen was a convicted felon and concluded that her disclosures were too stale to support a finding of probable cause. Finally, the Magistrate Judge found that the warrant was so lacking in indicia of probable cause that the good-faith exception of United States v. Leon, 468 U.S. 897 (1984), did not apply. 2

The District Court ordered the evidence suppressed, repeating the Magistrate Judge's reasons and adding a concern "that the purpose of the search was the weapons themselves, not any alleged 'fruits of a crime.'" Memorandum and Order at 3. Lawrence LaMorie then moved the court to suppress the weapons as evidence against him, and the District Court granted his motion.

We have jurisdiction over the government's appeal pursuant to 18 U.S.C. Section(s) 3731 (1994). "In reviewing the grant . . . of a motion to suppress evidence on Fourth Amendment grounds, we are bound by the district court's findings of fact . . . unless we believe on the basis of the record as a whole that the District Court clearly erred." United States v. Riedesel, 987 F.2d 1383, 1387 (8th Cir. 1993). We may reverse a suppression order not only if it rests on clearly erroneous findings of fact, but also "if the ruling reflects an erroneous view of the applicable law." Id. at 1388.

II.

We consider first the District Court's suggestion that the search was unconstitutional because "the purpose of the search was the weapons themselves." Memorandum and Order at 3. The District Court continued:

The moral is clear -- if you want to search for weapons, say so and do so, and don't try to scam the court with vague references to "suspects" and stolen property. Assembling a small army of heavily armed law enforcement officers to look for a "crock, brown and tan in color, approximately 2 feet high" [one of the items on the warrant] looks inappropriate.

Id. at 3-4. The LaMories have pressed similar arguments on appeal. With due respect to the District Court, the fact that the officers may have been interested in looking for weapons in the LaMories' residence is irrelevant to the constitutional inquiry if the search warrant for the proceeds of the burglary was valid. Horton v. California, 496 U.S. 128, 138-40 (1990), explicitly rejected the notion that the Fourth Amendment requires the discovery of an object in plain view to be "inadvertent." As the Supreme Court said in Horton, if an officer "has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first." Id. at 139; cf. Whren v. United States, 116 S. Ct. 1769, 1774 (1996) (noting that the Court has repeatedly held that an ulterior motive does not make an otherwise legal search or seizure illegal). The only issue in this case, then, is whether the warrant for the fruits of the Arena burglary was valid.

III.

The duty of the judge issuing a search warrant is to make a "practical, common-sense decision" whether, considering all the circumstances, a reasonable person would have reason to suspect that evidence would be discovered. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause is a fair probability that contraband or evidence of a crime will be found in the location to be searched. See United States v. Robertson, 39 F.3d 891, 892 (8th Cir. 1994), cert. denied, 115 S. Ct. 1812 (1995). Our duty as a reviewing court is to ensure that the issuing judge had a "substantial basis" for concluding that probable cause existed, and we owe substantial deference to the determination of probable cause by the issuing judge. Gates, 462 U.S. at 236, 238-39; United States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995). We review the District Court's conclusion that probable cause did not exist for clear error. See United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir. 1990), cert. denied, 498 U.S. 1101 (1991).

We agree with the government that Judge Graff had a substantial basis for concluding that probable cause existed to search the trailer. Deputy Hall presented a detailed description of the various law enforcement authorities' investigations into the burglary, investigations that eventually focused on the Allens, the LaMories, and Royce. Vicki Allen, under arrest for another offense, reported that fruits of the burglary had been taken to the LaMories' trailer and that the LaMories were out of town. Jerry Allen corroborated the details of the burglary under separate questioning. Vicki Allen described to Deputy Hall particular items stolen from the post office that could be found in the trailer. Taken together, this information would give a reasonable person reason to suspect that the fruits of the burglary could be found in the trailer.

A.

We consider the LaMories' arguments in turn. First, they argue that Judge...

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