300 F.3d 638 (6th Cir. 2002), 00-5662, U.S. v. Elkins

Docket Nº:00-5662, 00-5771, 00-5772.
Citation:300 F.3d 638
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. James ELKINS; Carol Elkins, Defendants-Appellees. United States of America, Plaintiff-Appellee, v. Carol Elkins; James Elkins, Defendants-Appellants.
Case Date:August 02, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 638

300 F.3d 638 (6th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellant,

v.

James ELKINS; Carol Elkins, Defendants-Appellees.

United States of America, Plaintiff-Appellee,

v.

Carol Elkins; James Elkins, Defendants-Appellants.

Nos. 00-5662, 00-5771, 00-5772.

United States Court of Appeals, Sixth Circuit

August 2, 2002

Argued: Sept. 11, 2001.

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Thomas A. Colthurst (argued and briefed), Asst. U.S. Attorney, Memphis, TN, for Plaintiff-Appellant.

Michael J. Stengel (argued and briefed), Memphis, TN, A.C. Wharton, Jr. (argued and briefed), Wharton, Wharton & Associates, Memphis, TN, for Defendants-Appellees.

Before: SILER, CLAY, and GIBSON, Circuit Judges.[*]

OPINION

JOHN R. GIBSON, Circuit Judge.

The United States appeals, pursuant to 18 U.S.C. § 3731 (2000), from an order of the district court suppressing evidence of a marijuana growing operation found in buildings controlled by James and Carol Elkins. The Elkinses, husband and wife, have entered conditional guilty pleas to several charges,1 and appeal from rulings in the same order holding certain evidence from their buildings to be admissible. We affirm the order in part and reverse in part. Carol Elkins also appeals from an order of the district court releasing seized funds to pay the Elkinses' attorneys' fees. She claims the amount released was unreasonably small. We affirm the order.

I.

In the middle of 1996, Memphis police received anonymous information that there was a marijuana growing operation at 155 Scott Street, at the building behind 155 Scott, and at 1270 Tutwiler Avenue, James Elkins's home.

The police began surveillance of the Scott Street property named in the tip. This building was divided into two parts with separate doors and addresses, 139 Scott on one side and 155 Scott on the other. In intermittent surveillance of the building over a period of two months, the police saw James and Carol Elkins come and go from it. They also saw several men whom they recognized as off-duty Memphis police officers. On one occasion during the surveillance, the investigators approached James Elkins and spoke with him. Elkins told them he was employing off-duty policemen to safeguard his businesses against burglaries. Elkins said that he had businesses in the Scott Street

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building and in a building close by on Neil Street. The police then turned their attention to 146 Neil Street, a nearby building where they had earlier seen several cars stopping at night. They observed a pallet near 146 Neil stacked with bags of sheep manure fertilizer. During the course of the surveillance the police also learned that James Elkins had at least one former felony conviction.

The officers began a more intensive surveillance of the Scott and Neil Street properties and the Elkinses' home on the evening of August 20, 1996, aided by equipment and personnel from the Tennessee National Guard. They used a thermal imaging device to scan heat emanating from 139/155 Scott and 146 Neil, and detected an unusually high heat output at 146 Neil.2 On that night police also encountered an off-duty officer named Smith guarding the Scott Street building. Smith stated that he worked for James Elkins, guarding both the Scott Street building and another Elkins building on Walnut Grove in Memphis. Smith led the investigating officers to this building, which was 2896 Walnut Grove. At one point he offered to let them in, but the police declined to enter. A police helicopter later flew over 2896 Walnut Grove and scanned it with an airborne thermal imager. This building also had a high heat signature.

Later that night Officer Frank Bell, accompanied by Captain Terry Livingston of the National Guard, went to 2896 Walnut Grove to inspect its exterior. A "No Trespassing" sign hung on the building. On its east side was an unpaved path used to reach an apartment building behind the Elkinses' property. Stepping onto that path, Bell saw a PVC pipe protruding from the east wall of 2896 Walnut Grove at a height of two or three feet. There was an open gap of somewhat less than an inch in width around the exposed pipe. Bright light emitted from the gap. Bell and Livingston bent down and peered through it. Bell observed marijuana leaves inside the building; Livingston observed green leaves but did not identify them more precisely. Bell then called Officer Joe Hoing to the scene and Hoing also saw identifiable marijuana leaves through the gap. While bending down to look, Bell heard a sound from within the Elkinses' building that he believed came from ballasts operating inside.3

After making these observations, Bell and Livingston remained near 2896 Walnut Grove to continue surveilling it while other officers prepared a warrant application for the building. Hoing left to join a second group of officers investigating the Elkinses.

The next morning, Officers Hoing, Duane Gary, and Dion Cicinelli went to the Elkinses' home at 1270 Tutwiler. They told the Elkinses they had received a complaint about a marijuana grow at Scott Street, but James Elkins denied any involvement with a marijuana grow. He gave the officers permission to search his home, and Carol Elkins escorted them through parts of it. The officers saw no contraband, but each later testified that there was a strong, identifiable odor of marijuana in the Elkins home. The officers then requested permission to search 155 Scott. James Elkins agreed, saying

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that the police could look anywhere they wanted to.4

Elkins then drove Gary to Scott Street in his own car, choosing an indirect, circuitous route. The other officers followed, but Carol Elkins did not accompany them. At one point during the drive Elkins made a cellular phone call to an unidentified individual. Officer Gary testified that he could not hear what Elkins said but believed he was speaking to his wife.

Once Elkins arrived, he led the officers through 155 Scott, where they found nothing incriminating. The officers asked if they could also search 139 Scott, the other portion of the building. Elkins verbally agreed to this search; the officers testified that he said "sure."

When the officers emerged from 155 Scott with James Elkins, they saw an unoccupied Cadillac newly parked next to the building. The officers recognized it as Carol Elkins's car, which had been parked at the Elkins home that morning. James Elkins attempted to unlock the door to 139 Scott, but could not find a matching key. He called to his wife, who was now inside the building, to open the door. Carol Elkins eventually opened the side door and admitted James Elkins and the officers.

The officers searched 139 Scott, accompanied by the Elkinses. They eventually found a cabinet which, when opened, contained metal trays of marijuana. They also found plant chemicals, fertilizer, scales, ledger sheets, and other paraphernalia possibly linked to marijuana growing. At one point the officers turned their attention to 139 Scott's attic, and James Elkins pointed out a ladder that the police could use to access that area. In the attic the officers found several electric lights.

During the search the officers came to suspect that there was a hidden space between the walls of 139 and 155 Scott. Elkins admitted that there was such a space. When it became clear that the officers intended to open a hole in the wall to access it, Elkins pointed out a spot where the hole could be made with the least damage to the building. The officers found a hidden room containing a great deal of equipment used in growing marijuana. Remnants of marijuana growing were visible on the floor.

The officers then asked Elkins for permission to search 146 Neil. Elkins at first agreed to the search, but then verbally declined and asked to speak with his attorney. The officers testified that Elkins said that a search of 146 Neil would only make things harder for himself. The Elkinses, now handcuffed, were taken to the police station around 11:00 a.m. Officers Hoing, Gary, and Cicinelli began preparing affidavits for warrants to search 146 Neil, 2896 Walnut Grove, and the Elkinses' home at 1270 Tutwiler.

While the affidavits were being prepared, Officer Bell and Captain Livingston were at 2896 Walnut Grove, watching the location from their car. At around noon, a car containing two Hispanic males drove up to the building. The car stopped close to the building's entrance. By this time Bell and Livingston had learned of the

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arrests of the Elkinses. They began to drive toward the stopped car, intending to keep the occupants from entering 2896 Walnut Grove. One of the occupants, later identified as Jesus Morales, got out of the car and entered the building. The officers pulled up next to the car and detained the remaining occupant, Raul Sandoval. As they detained Sandoval, Morales exited 2896 Walnut Grove, saw the officers detaining his colleague, and went back inside, locking the door. Livingston was wearing a police shirt and camouflage pants when Morales saw him.

Bell then radioed Officer Hoing to seek advice about how to secure the building. Hoing eventually contacted a state prosecutor. The prosecutor advised the officers to enter 2896 Walnut Grove, remove the man inside it, and wait for a warrant.

The officers entered 2896 Walnut Grove by forcing the locked door. Inside the building they found four men, including Morales. They also observed an extensive array of marijuana plants as well as two shotguns. The police then left the building, but one of the men they had seized told them that two more men were inside. The police re-entered the building twice to...

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