U.S. v. Popham, 05-20008-BC.

• Decision Date: 15 August 2005
• Docket Number: No. 05-20008-BC.,05-20008-BC.
• Citation: 382 F.Supp.2d 942
• Parties: UNITED STATES of America, Plaintiff, v. William Edwin POPHAM, and Michael Timothy Crane, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

382 F.Supp.2d 942

UNITED STATES of America, Plaintiff, v. William Edwin POPHAM, and Michael Timothy Crane, Defendants.

No. 05-20008-BC.

United States District Court, E.D. Michigan, Northern Division.

August 15, 2005.

COPYRIGHT MATERIAL OMITTED

James C. Mitchell, U.S. Attorney's Office, Flint, MI, for Plaintiff.

Federal Defender, Kenneth R. Sasse, Federal Defender Office, Flint, MI, Daniel G. Van Norman, Lapeer, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO SUPPRESS EVIDENCE AND RETURN PROPERTY

LAWSON, District Judge.

The defendants, William Popham and Michael Crane, are charged in a nine-count indictment with manufacturing marijuana and unlawfully possessing various firearms. The charges arise almost entirely from evidence seized from their residence and outbuilding located at 1131 Deer Run Trail, Alger, Michigan pursuant to a search warrant, which they now challenge in their present motion to suppress. They contend that the search warrant is invalid because the supporting affidavit contains information derived from a prior search that has been declared illegal, and it otherwise contains statements of the affiant's personal observations that were made during a warrantless intrusion into the curtilage of the defendants' home or are false in themselves. They also argue that the search warrant was overbroad and the police seized items that were not described with particularity in the search warrant and are not evidence or contraband, and they ask for an order for return of that property. The Court held an evidentiary hearing on August 8, 2005 and heard testimony from the search warrant affiant and a defense investigator. The Court now finds that the search warrant was based on probable cause, the search conducted pursuant thereto was valid, and the seizure of some of the defendants' property was not justified. The Court, therefore, will deny the motion to suppress evidence and order the return of the seized property that does not constitute contraband, evidence of criminal activity, or fruits of the crime.

I.

In March 2000, Michigan police officials executed search warrants at the defendants' residence at 1131 Deer Run Trail, Alger, Michigan, and another property owned by the defendants, 1301 Marsh, Oscoda County, Michigan. The police seized over 200 marijuana plants. A state court determined these warrants were not supported by probable cause, suppressed the evidence seized, and dismissed the charges against the defendants. The parties have not identified the tribunal that invalidated the prior search or informed the Court when the ruling was issued, but it is undisputed that the police had knowledge of the decision at the time the search warrant affidavit was drafted in this case. Defs.' Mot. Suppress Ex. 4, Supplemental Incident Report (Sept. 26, 2004).

On September 11, 2004, Michigan State Police Trooper William Veltman allegedly received an anonymous tip that marijuana plants again were being grown at the 1131 Deer Run Trail address. The next day, the trooper went to the property to make observations. He testified that he arrived at the area of the defendants' residence at approximately 6:15 a.m. He parked his vehicle alongside a dirt road he considered to be state land and walked approximately 100 yards through a wooded area he believed to be the land of the defendants' neighbor. Veltman stated that he had received permission from the neighbor several months earlier to enter his land.

The defendants' property contains a chain link fence that separates a wooded area from the house and outbuilding. However, according to an affidavit signed by defendant Popham, the property extends beyond the fence itself. Veltman acknowledged that he made his observation of the defendants' outbuilding from outside a fence surrounding both the residence and an outdoor greenhouse-style structure. Trooper Veltman testified that he did not cross any fence lines or observe any "no trespassing" signs, although the defendants offered in evidence photographs of such signs on the defendants property.

The defendants introduced evidence at the hearing that the sun rose on that day at 7:13 a.m., and civil twilight occurred at 6:44 a.m. Veltman said that he remained in the area and viewed the clearing where the defendants reside for thirty to forty minutes from a location ten to fifteen feet outside a chainlink fence. He believed that the defendants' property started at the fence line; however, the defendants contend that they have a garden outside the fence in the vicinity of Veltman's observation point, and the defendants have junk vehicles in various states of disrepair around the outside of the fence.

Veltman testified that he observed a twenty-by ten-foot outdoor growing building from a distance of 120 to 150 feet from where he stood. The building had a wood frame covered by plywood around the base and opaque Visqueen above. The roof was nine to twelve feet high at its peak, and the end of the building facing Veltman had no Visqueen in the gable, although Veltman learned later that the space was covered with black mesh that allowed some light to pass through.

The defendants offered evidence that there was fog in the general area at the time. In fact, weather records documented visibility that was limited to 1.2 miles dropping to 0.2 miles at a locations within fifty miles of the defendants' property. Ex. 10, Visibility Records (Sept. 12, 2004). Visibility varied at other locations around that part of Michigan but was generally one mile or less. The parties do not dispute, however, that Veltman was within 1,000 feet of the outbuilding when he made his observation.

The trooper testified that he could not see much through the opaque Visqueen, but he identified two marijuana plants when looking through the building's gable covered by the black mesh. He testified that he thought he saw stems and leaves of two plants that he thought were eight feet in height, although he acknowledged that he may have seen only one plant. Veltman said that he had extensive experience identifying marijuana plants from a distance: he has received some training in enforcing narcotic laws; he had been involved in a search that resulted in finding one hundred fifty to two hundred fifty marijuana plants in one location; he had seen plants ranging from a few inches to several feet high; he made several accurate identifications of marijuana plants from airplanes flying several hundred feet above the ground; and he searched for and seized marijuana plants growing in wooded areas and stream beds. On September 12, 2004, Veltman identified the plants he saw as marijuana, he says, because their color matched marijuana plants he had seized from creek bottoms, the plant leaves had serrated edges, and the height of the plants were characteristic of marijuana.

Veltman maintains that when he observed the plants he did not know he was looking through a mesh material. He allowed that cinquefoil can be confused with marijuana plants from the distance that he made the observations but that cinquefoil is rarely grown in a greenhouse. Veltman took a digital photograph of the defendants' outbuilding at approximately noon on the day of the search from his early-morning vantage point. The photograph corroborates some of his testimony, although the outline of the plants is difficult to make out due to the lack of clarity of the picture. Ex. 6, Photograph of the Defendants' Property.

On September 13, 2004, Trooper Veltman swore to an affidavit in support of a search warrant for the residence and growing building. He wrote in the affidavit the following information:

1. Affiant is Tpr. William Veltman, a police officer employed by the Michigan State Police for a period of ten years.

2. Your affiant has received specialized narcotics training by the Michigan State Police; 10 years of experience has included over 100 investigations involving narcotics trafficking and the execution of over 30 search warrants.

3. Affiant has seen over 500 marijuana plants in various stages of growth.

4. On 09-11-04, I received information that marijuana plants were being grown at a residence located at 1131 Deer Run Road, and that the plants were visible in the back of the property.

5. On 09-12-04, I approached the fenced in residence at 1131 Deer Run Road from adjoining property. From outside the fence I observed 3 structures covered with plastic visqueen [sic] which resembled greenhouses. The largest structure had an open gabled end, and I observed 2 large marijuana plants approximately 8 foot [sic] in height.

6. Affiant was also present in March of 2000 when a search warrant was served at 1131 Deer Run Road. In March of 2000 a hydroponic grow operation was found. Plant stems and roots left at the scene showed at least 50 large marijuana plants had been growing inside a shed. Also found inside the residence was a psilocybin mushroom grow operation.

7. As a result of the March 2000 search at 1131 Deer Run Road, affiant was involved in the service of a search warrant in the Mio area in March of 2000. The residence was located at 1301 Marsh, Oscoda County, Big Creek Township. Seized from the residence was [sic] 94 live marijuana plants and 67 cloned marijuana plants. This residence was owned by Michael Timothy Crane and was used to hide the marijuana plants that had been removed from Crane's residence at 1131 Deer Run Road. STING complaint # STG-35-00.

8. Affiant is aware through training and experience that people who grown [sic] large quantities of marijuana plant do so to process and sell the marijuana. Affiant is aware that the "rule of thumb" is that one mature marijuana plant produces one pound of process marijuana.

9. Affiant is aware through training and experience that people often use vehicles and outbuildings to hide controlled substances.

10. Affiant is aware through training and experience that people who are...