U.S.A. v. Greene
| Citation | 250 F.3d 471 |
| Decision Date | 16 March 2001 |
| Docket Number | No. 99-2306,99-2306 |
| Parties | (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Phillip James Greene, Defendant-Appellant. Submitted: |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-80034, Arthur J. Tarnow, District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Patricia G. Gaedeke, Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
Phillip James Greene, Federal Detention Center, Milan, MI, William W. Swor, Detroit, Michigan, for Appellant.
Before: COLE and GILMAN, Circuit
OPINION
This is a direct appeal of a conviction and sentence entered into by plea agreement. Phillip Greene, the defendant-appellant, appeals the district court's denial of a motion to suppress evidence, arguing that the search warrant was invalid. For the following reasons, we AFFIRM the district court.
On January 19, 1999, Greene was indicted for being a felon-in-possession of a firearm pursuant to 18 U.S.C. §922(g)(1). In particular, Greene was accused of possessing three firearms: (1) a Colt .44 revolver, (2) a Savage .22 caliber rifle, and (3) a .38 caliber revolver. These firearms were obtained by a search of Greene's dwelling and curtilage located at 2139 and 2141 Ashland Street, Detroit, Michigan. The search warrant was authorized by a state court magistrate and executed on January 8, 1999. In the trial court, Greene moved to suppress the introduction of the three firearms into evidence, claiming that the search warrant was invalid. Judge Arthur J. Tarnow (E.D. Mich.), denied the motion, stating that "substantial evidence existed to support the state judge's decision to issue the warrant." Tarnow Order of 6/29/99, J.A. at 154. Greene then entered a guilty plea and reserved the right to appeal the search warrant issue. On October 20, 1999, Greene was convicted of being a felon-in-possession and was sentenced to 30 months incarceration. Greene timely filed a notice of appeal in this Court.
The search warrant at issue in this case is based on the affidavit of Lieutenant David Hiller ("Lt. Hiller") of the Grosse Pointe Park Police ("GPP Police"). In his affidavit, Lt. Hiller explained that he had been investigating a series of home invasions in Grosse Pointe Park that occurred in the last three months of 1998. The investigation culminated in the arrest of two suspects on January 2, 1999, David Lamarr Arnold and Michael Dwayne Houston. Arnold and Houston confessed to the home invasions, stating that they had serious crack cocaine habits and sold stolen property to fund those habits.
During questioning, Lt. Hiller asked Houston where the stolen property from the home invasions could be found. Houston stated, "Arnold took care of that stuff." Search Warrant and Aff., J.A. at 26. Lt. Hiller avers that he "had previous knowledge that stolen property was located at 2139 Ashland and the person who lived there was a B/M Phil Green (sic)."Id. Accordingly, Lt. Hiller questioned Houston concerning the house at 2139 Ashland and its resident. Houston replied, "That's his [Arnold's] boy, you will find stuff there." Id.
In his affidavit, Lt. Hiller also averred that he was in contact with federal law enforcement officers. These federal officers had received information from a confidential source "that has proven creditable in the past, has been used in both State and Federal search warrants, and has provided information that has resulted in numerous felony arrests." Id. The confidential informant provided information about the house at 2139 Ashland, stating that Phillip Greene had resided there for 25 years. The informant also gave valid phone numbers for the lower and upper flats of the house, namely 2139 and 2141 Ashland.
The informant further stated that he had personally purchased narcotics at the residence, at least 12 times, the last time occurring in February 1997. The informant also stated that he had personal knowledge that on December 31, 1998, Ivory Costner, who resided at 1321 Marlborough Street, Detroit, Michigan, picked up a package from 2139 Ashland and delivered it to a known marijuana dealer, known as "Granny." Lt. Hiller avers that the GPP Police conducted a search of 1321 Marlborough on January 5, 1999, where they found "numerous items believed to be stolen, including items from residential home invasions in GPP." Id.
The informant also stated that in September of 1998, Greene purchased a shipment of guns, and had been attempting to sell those guns. These included ".44 mags., .40 cal. and .45 automatics," as well an "M-16 auto rifle." Id. The informant also stated that in late 1997, he observed computers in the basement and attic of the house located at 2139/2141 Ashland.
Based on this information, Lt. Hiller requested a warrant to search the entire curtilage and dwelling of 2139/2141 Ashland. The warrant specified a sundry list of specific items to be seized which were allegedly taken in home invasions reported to the GPP Police. This list described the items to be seized in detail, including the specific make, model, and in some cases, the serial numbers of numerous computers, cellular phones, firearms, televisions, and VCRs. Jewelry and apparel were identified by their physical description; examples included "lapel pin teal blue with pearls with gold" and "women's brown purse with 'F' on it." Id. at 25.
The warrant also included several catch-all phrases. At the end of the detailed list of items previously described, the warrant requested seizure of "any other property that which is not identified as the occupants (sic) personal property." Id. The warrant also included a list of general items to be seized:
All controlled substances, all monies, books, records used in connection with illegal narcotic trafficking, all equipment and supplies used in the manufacture, delivery or sale of controlled substances, all firearms used in connection with the above described activities, evidence of ownership, occupancy, or control of the premises.
In the instant appeal, Greene argues that the search warrant is invalid on its face, and the district court's denial of his motion to suppress the evidence obtained through execution of the warrant was improper. The government opposes.
Greene makes three arguments as to why the search warrant in this case was improperly granted: (1) the warrant was overbroad; (2) the affidavit used to support the warrant was inadequate; and (3) the information in the affidavit was stale. This section will address each argument in turn, identifying the applicable standard of review for each claim, and then applying that standard to the facts of the case.
Greene first argues that the language of the search warrant is overbroad. The Fourth Amendment states "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." U.S. Const. amend. IV. Particularity "eliminates the danger of unlimited discretion in the executing officer's determination of what is subject to seizure." See United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991). While a "general order to explore and rummage" is not permitted, id., "the degree of specificity required is flexible and will vary depending on the crime involved and the types of items sought." United States v. Ables, 167 F.3d 1021, 1033 (6th Cir. 1999); see also Blakeney, 942 F.2d at 1026-27. Consequently, a description is "valid if it is as specific as the circumstances and the nature of the activity under investigation permit." Ables, 167 F.3d at 1033. However, infirmity due to overbreadth does not doom the entire warrant; rather, it "requires the suppression of evidence seized pursuant to that part of the warrant . . . , but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized - on plain view grounds, for example - during their execution)." United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993) (internal quotes and citation omitted). This Court reviews de novo a district court's determination of particularity. See United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998).
Greene argues that two clauses of the warrant are overbroad. The first clause authorizes confiscation of "any other property that which (sic) is not identified as the occupant's personal property." Search Warrant and Aff., J.A. at 25. The government concedes that this "catch-all" clause is overbroad, giving the officers "too much discretion to seize personal property not listed." Gov't's Br. at 6-7. However, the government also notes that the appropriate remedy for overbreadth is severing the infirm clause, and not dooming the entire warrant. See Blakeney, 942 F.2d at 1027.
In this case, severance of the "catch-all" clause does not change the scope of the district court's denial of the motion to suppress. The long, detailed list of items to be seized preceding the "catch-all" clause includes the make, model, and caliber of four firearms. Moreover, the paragraph immediately succeeding the "catch-all" clause contains a general list of items to be seized, including "all firearms used in connection" with narcotics trafficking. Search Warrant and Aff., J.A. at 25. Assuming that this succeeding clause does not run afoul of Fourth Amendment strictures, severance of the "catch-all" clause does not change the scope of the search or impugn the validity of the seizure of the three firearms which are the basis for Greene's conviction.
The second clause Greene challenges is the aforementioned list of general items to be seized. This list authorizes the seizure of:
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