373 F.3d 509 (4th Cir. 2004), 03-4280, United States v. DeQuasie

Docket Nº:03-4280.
Citation:373 F.3d 509
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Timothy DEQUASIE, Defendant-Appellee.
Case Date:July 01, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 509

373 F.3d 509 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,

v.

Timothy DEQUASIE, Defendant-Appellee.

No. 03-4280.

United States Court of Appeals, Fourth Circuit

July 1, 2004

Argued: Dec. 4, 2003.

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[Copyrighted Material Omitted]

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ARGUED:

Joshua Clarke Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellant.

Silas Mason Preston, Preston & Weese, L.C., Lewisburg, West Virginia, for Appellee.

ON BRIEF:

Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellant.

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

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Reversed and remanded by published opinion. Judge SHEDD wrote the majority opinion, in which Judge WILLIAMS Joined. Judge DIANA GRIBBON MOTZ wrote a dissenting opinion.

OPINION

SHEDD, Circuit Judge:

During the late evening and early morning hours of March 18-19, 2002, law enforcement officers executed two search warrants at the Summerlee, West Virginia, residence of Timothy DeQuasie. The purpose of the first search was to attempt to locate two women, one of whom was reportedly missing and being held against her will by DeQuasie in the residence. While law enforcement officers were executing the first search warrant, they observed evidence of apparent drug activity at DeQuasie's residence, and they therefore obtained a second warrant to search the residence for drugs and drug-related materials. During the second search the officers seized (among other things) a firearm and ammunition.

A federal grand jury subsequently indicted DeQuasie under 18 U.S.C. §§ 922(g)(3) and (g)(9) for illegal firearm possession by an unlawful user of a controlled substance and by a person who has been convicted of a misdemeanor crime of domestic violence. Before trial, DeQuasie moved to suppress the firearm and ammunition on the ground that those items were seized from his residence in violation of the Fourth Amendment. The district court agreed and granted the suppression motion, United States v. Dequasie, 244 F.Supp.2d 651 (S.D.W.Va.2003), and the United States now appeals. Because we find that the good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), makes the evidence admissible, we reverse the suppression order and remand for further proceedings.

I

At approximately 5:30 p.m. on March 18, 2002, Shawn Bandy ("Shawn") telephoned Detective-Corporal J.L. Brown of the Fayette County, West Virginia, Sheriff's Office and reported that his wife, Lora Bandy ("Lora"), had been missing for several days.1 Shawn further reported that he had been told by his sister-in-law, Tiffany Mason ("Tiffany"), that Lora was being held against her will at DeQuasie's residence, that when Lora would attempt to leave the residence DeQuasie would give her crack cocaine, and that the effect of the crack cocaine was to "induce a stupor from which [Lora] was unable to stay in her right mind." (J.A. 16).

Detective-Corporal Brown relayed this information to his supervisor, Detective-Corporal J.K. Sizemore. Deputy M.A. Webb was then sent to meet with Shawn and complete a missing person report. Deputy Webb met with, and obtained statements from, Shawn and Shawn's mother-in-law, Cynthia Mason ("Cynthia"), and he completed a missing person report. Shawn and Cynthia told Deputy Webb that Lora and Tiffany had willingly gone to DeQuasie's residence, but DeQuasie was then holding Lora there against her will by using drugs to keep her in a stupor, the effect of which was to prevent her from leaving the residence. Shawn and Cynthia also told Deputy Webb that DeQuasie had threatened to kill any family members who attempted to get Lora from the residence and that Tiffany had seen a large quantity

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of drugs and weapons, as well as several scanners, inside the residence.

Other than the fact that Lora was missing, it appears that all of the information that Shawn and Cynthia reported was based on what Tiffany had told them. Although it is not apparent from the record, the district court assumed that Tiffany told them this information over the telephone, see 244 F.Supp.2d at 652, and the parties do not contend otherwise. The officers did not speak with Tiffany.2

Sometime during the evening Detective-Corporal Brown drove to DeQuasie's residence to obtain a description of the residence for purposes of a search warrant. While there, Detective-Corporal Brown observed several unidentified people inside the residence, but he did not approach the residence.

Based on this information, Detective-Corporal Sizemore applied to a magistrate for a warrant to search DeQuasie's residence for Lora and Tiffany.3 In his sworn affidavit and application for the warrant, Detective-Corporal Sizemore detailed (among other things) his experience and training in law enforcement, the information reported to Detective-Corporal Brown and Deputy Webb by Shawn and Cynthia, and Detective-Corporal Brown's observation of DeQuasie's residence. Detective-Corporal Sizemore stated that he believed that Lora and Tiffany were present at DeQuasie's residence, that Lora (but not Tiffany) was being held there against her will, and that "[g]iven the severity of this situation it appears likely that [Lora's] life may be in jeopardy if she continues to stay at this residence." (J.A. 16-17). Although Detective-Corporal Sizemore had information about drugs being present and used in DeQuasie's residence, he did not seek a warrant to search for drug-related evidence.4

The magistrate issued a warrant for the purpose of searching DeQuasie's residence for Lora and Tiffany. At 10:30 p.m., Detective-Corporal Sizemore and a team of law enforcement officers executed the search warrant and found Lora and Tiffany, who were unharmed, at DeQuasie's residence.5 During this search, Detective-Corporal Sizemore smelled the "strong odor of marijuana coming from inside" the residence, and he observed "at the door" of the residence "a small quantity of green vegetation which appeared to be marijuana." (J.A. 22). In addition, other officers who had patted down DeQuasie discovered two cell phones on him. Based on his observations and the discovery of the two cell phones (which he associated with possible drug activity), Detective-Corporal Sizemore left officers at DeQuasie's residence and returned to the magistrate's

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office and applied for a second warrant to search the residence for evidence of illegal drug activity.

In his sworn affidavit and application for this warrant, Detective-Corporal Sizemore detailed (among other things) his law enforcement experience and training (including his training and knowledge of illegal drug activities) and his observations of apparent illegal drug activity during the execution of the first search warrant. Detective-Corporal Sizemore also referred to statements made by Shawn and Cynthia to Deputy Webb that Tiffany had told them that "DeQuasie had approximately $20,000.00 in cash at his residence as well as a large quantity of drugs including crack cocaine earlier in the day." (J.A. 22). Detective-Corporal Sizemore noted that while this information could not be "judged as to reliability," it, combined with his observations at DeQuasie's residence, tended to confirm that DeQuasie probably had in his possession a controlled substance. (J.A. 22).

The magistrate issued the second warrant for the purpose of searching DeQuasie's residence for controlled substances, materials used to facilitate the use and sale of controlled substances, records pertaining to the sale of controlled substances, cash and financial information, and weapons. At 12:05 a.m., Detective-Corporal Sizemore executed the second warrant. At the beginning of this search, DeQuasie was advised of his Miranda rights, and he agreed to answer questions. DeQuasie stated that although he did smoke marijuana, he did not use cocaine and he did not have any controlled substances in his residence at that time. DeQuasie also stated that he had previously been convicted of domestic battery and that he kept a revolver concealed under his living room couch. DeQuasie denied having any knowledge of, or participation in, sales of controlled substances.

The search of DeQuasie's residence yielded a loaded Smith and Wesson .32 Long revolver, which was found under the cushion of the living room couch; ammunition for this revolver; a battery-operated Pointscale; a stem for a crack pipe; a roach-clip; a plastic bag containing white powder residue; a section of copper scrub pad (commonly used to make screens for crack pipes); a package of E-Z Wider rolling papers; a cell phone bill in DeQuasie's name; two cell phones; and $699 cash, which was concealed under a dresser drawer in DeQuasie's bedroom. After completing the search, Detective-Corporal Sizemore arrested DeQuasie and charged him with being a prohibited person in possession of a firearm and with possession of a controlled substance. A federal grand jury subsequently indicted DeQuasie for illegal possession of the revolver.

Before trial, DeQuasie moved to suppress the revolver and the accompanying ammunition. DeQuasie argued that the magistrate issued the first search warrant without sufficient probable cause because the officers did not speak with Tiffany or independently verify statements that Shawn and Cynthia attributed to her; and because the first search warrant was invalid, the evidence seized during the second search is "fruit of the poisonous tree" and must be suppressed. DeQuasie also argued that the evidence is not admissible under the good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which...

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