673 F.3d 598 (7th Cir. 2012), 10-3338, United States v. Spears

Docket Nº:10-3338.
Citation:673 F.3d 598
Opinion Judge:WILLIAMS, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marlon K. SPEARS, Defendant-Appellant.
Attorney:Emily Kathleen Kerkhof (argued), Thomas S. Ratcliffe, Attorneys, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee. Danthony Thedford (argued), Attorney, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
Case Date:March 08, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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673 F.3d 598 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marlon K. SPEARS, Defendant-Appellant.

No. 10-3338.

United States Court of Appeals, Seventh Circuit.

March 8, 2012

Argued June 7, 2011.

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[Copyrighted Material Omitted]

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Emily Kathleen Kerkhof (argued), Thomas S. Ratcliffe, Attorneys, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Danthony Thedford (argued), Attorney, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

On August 1, 2008, a magistrate judge issued a search warrant for the home of Marlon K. Spears, which law enforcement officers executed five days later. Spears was arrested and charged with possessing 100 or more marijuana plants with intent to distribute, being a felon in possession of a firearm, and maintaining a place for the manufacture and distribution of marijuana. He filed multiple motions to suppress the evidence obtained from the search, challenging numerous statements made in the affidavit accompanying the warrant application, including: (1) statements about finding a marijuana stem during a " trash pull" ; (2) the existence of PVC piping at Spears's home; (3) the affiant's statements that she " received information from" the Northern Indiana Public Service Company (" NIPSCO" ) about Spears's power usage; and (4) statements made about Spears's criminal history, namely, that he had one

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in the state of Indiana. The district court eventually conducted a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). After hearing testimony, the district court found that the warrant did not contain any material false statements that were made intentionally, and denied the motion. The court also found that the warrant did not otherwise lack probable cause.

Spears was convicted of all three counts following a jury trial. He now appeals, arguing that the district court erred in denying his Franks motion to suppress evidence. We find that the district court did not clearly err in finding no Franks violation with respect to the statements made about the marijuana stem discovered in the trash and the existence of piping at Spears's home. We decline to reach Spears's arguments regarding the inclusion of the electricity usage information and his criminal history because we find that even if those portions are stricken, the remaining elements of the affidavit support a finding of probable cause. We therefore affirm Spears's conviction.

I. BACKGROUND

A. The Warrant Affidavit and Search of Spears's Residence

Nicole Duncanson is a Hammond, Indiana police officer deputized as a federal agent. On August 1, 2008, she submitted an application and affidavit in support of a search warrant for the home of Marlon K. Spears to the United States District Court for the Northern District of Indiana. The affidavit stated that on July 23, 2008, a confidential informant, whom Duncanson had never met, called her and stated that Spears had a marijuana growing operation at his home. The informant stated that he or she had been in the basement of Spears's home and observed multiple rooms of marijuana plants, a water irrigation system, multiple high intensity growing lights, multiple electronic devices in and around the operation, fertilizer, growing mediums, and PVC piping routed from the basement to the exterior of the residence. The informant also told Duncanson that the PVC piping on the outside of the house was routed out from the basement and spray painted black. Duncanson ran a search on Marlon Spears, which revealed that he lived at the residence. Duncanson put in her sworn affidavit that she ran a criminal history check on Marlon Spears, " and found that he has a criminal history in the state of Indiana."

The affidavit also stated that on the morning of July 31, 2008, Duncanson met with two Indiana State Troopers (Jason Sample and Gerald Michalak) who had investigation experience with marijuana grow operations. Among other information they provided, the troopers informed Duncanson that it was common in marijuana grow operations to discard the stems of the marijuana plants. That same morning, Duncanson, the two troopers, and Detective Adam Clark of the Hammond Police Department obtained abandoned trash that had been placed in a public alley directly south outside Spears's home. The affidavit stated that " Trooper Sample located a fresh, green/brown, pliable plant stem in the trash. Trooper Michalak and Trooper Sample immediately recognized the stem to be from a marijuana plant...." The stem was tested and returned a positive result for the presence of marijuana.

Also found in the trash, according to the affidavit, were an empty box for a " Tetra Whisper Aquarium Heater," (allegedly used to heat water to hasten mineral absorption) and ten gray plastic circular discs. Trooper Sample advised that the discs were possibly cut from a larger tray

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used for " starter" or " clone" marijuana plants.

Finally, Duncanson also stated in the affidavit that:

[o]n July 31, 2008, I received information from NIPSCO, the Northern Indiana Public Service Company, that the electricity service at The Premises is listed in the name of Marlon Spears. NIPSCO also reported that the normal usage of electricity for a residence of this size is 500-650 kilowatts per month. However, NIPSCO further reported the actual, average monthly usage for the year of 2008 for The Premises was between 1200-1300 kilowatts.

Duncanson said that the excessive kilowatt usage was consistent with that of an indoor marijuana grow operation due to the use of grow bulbs and other electrical equipment.

Based on the information contained in the warrant application, a magistrate judge issued a search warrant for Spears's home, and officers executed the warrant on August 6, 2008. During the search, law enforcement officers found 555 live marijuana plants rooted in soil, 550 grams of processed marijuana, plant pots, carbon air filters, high intensity grow bulbs, and irrigation system with plant trays, fertilizer, and books on marijuana growth. The officers also found a loaded .22-caliber rifle, 700 rounds of ammunition, and a digital scale. Spears was arrested and charged with possessing 100 or more marijuana plants with intent to distribute, being a felon in possession of a firearm, and maintaining a place for the manufacture and distribution of marijuana.

B. Spears's Initial Motions to Suppress

Spears filed an amended motion to suppress the seized evidence, which the district court interpreted as requesting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Spears attached an affidavit from a private investigator who spoke to NIPSCO representatives, including Karen Bruce, and photographs of Spears's home. The investigator stated that he was informed by NIPSCO that the only communication the company has with law enforcement is pursuant to subpoena, and that NIPSCO does not report normal usage of electricity for specific residences. The photographs showed that the only piping outside Spears's home was not PVC piping, as the warrant affidavit stated, and was connected to the home's air conditioning unit. The government responded with its own affidavit from Ms. Bruce, in which she said that the defense's characterization of her statements was inaccurate, and that NIPSCO can provide average monthly billing information for a particular residence over the phone to members of the general public. Based on the written submissions, the court denied the motion.

Spears then filed a supplemental motion to suppress. Spears submitted as an exhibit an FBI note received in discovery that indicated that Ms. Bruce and NIPSCO senior legal counsel told the FBI that nobody is authorized to give out normal wattage usage over the phone, and that it is against NIPSCO policy to do so. Discovery also revealed that it was an analyst with the FBI, not Duncanson, who spoke with someone with access to the NIPSCO information. Accordingly, the court determined that a Franks hearing was necessary.

C. The Franks Hearing

At the Franks hearing, the court heard testimony from Duncanson, Troopers Michalak and Sample, FBI analyst Randall Strapon, and Ms. Bruce. We discuss only the relevant testimony.

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Duncanson testified that she met with the informant in person on July 30, 2008, and that she and the informant drove past Spears's home so that the informant could identify it. She stated that she did not verify the informant's claim that there was black PVC piping because there were two dogs present who would have potentially barked. She confirmed that she had stated in her affidavit that Spears " has a criminal history in the state of Indiana," but acknowledged that Spears actually had a single conviction in 1995 for a sex offense in the state of Wisconsin. Duncanson also confirmed that although she stated in the affidavit that " I received information from NIPSCO," she did not personally talk to anyone at NIPSCO; instead, she obtained the information secondhand from FBI analyst Randall Strapon. She acknowledged that NIPSCO's response to the first subpoena issued was on August 13, 2008, a week after the search.

As for the trash pull, Duncanson stated that she and a fellow officer obtained the trash from behind Spears's residence, and brought the trash to a garage and laid it out on the bed of a truck. Duncanson did not assign any significance to the items in the trash until Trooper Sample pointed them out. She testified that the marijuana stem was found on the truck's bed, and that the truck had previously been used by the Hammond narcotics unit for trash pickups. Trooper Michalak testified that he didn't remember who recovered the plant stem, and Trooper Sample first testified...

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