U.S. v. Radka

• Decision Date: 05 June 1990
• Docket Number: No. 89-1892,89-1892
• Citation: 904 F.2d 357
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan RADKA, Defendant-Appellant.

Page 357

904 F.2d 357

UNITED STATES of America, Plaintiff-Appellee, v. Alan RADKA, Defendant-Appellant.

No. 89-1892.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 8, 1990.

Decided June 5, 1990.

Michael O. Lang (argued), Detroit, Mich., for U.S.

N.C. Deday LaRene (argued), Detroit, Mich., for Alan Radka.

Before MERRITT, Chief Judge; and KEITH and NORRIS, Circuit Judges.

KEITH, Circuit Judge.

Defendant Alan Radka ("Radka") appeals from the district court's May 19, 1989 order denying his motion to suppress evidence seized by federal drug enforcement agents during a warrantless search of his home. For the reasons set forth below, we REVERSE the denial of the motion to suppress.

I.

A.

In January 1987, Drug Enforcement Administration ("DEA") Agent James Pheneice learned from a confidential informant that large quantities of marijuana had been delivered to a Chelsea, Michigan residence during 1984 and 1985. On the basis of this information, the DEA initiated the investigation that led to Radka's prosecution.

Following the informant's directions, DEA agents located a house on Scio Church Road. The informant, who positively identified aerial photographs of the premises taken by the DEA, told the agents that he had stacked bales of marijuana in one of the outbuildings shown in the photographs. Based on this information, the DEA agents conducted ground and aerial surveillance of the property from February through June 1987. During this period, the agents learned that Radka owned the premises.

Prior to June 23, 1987, the aerial surveillance produced no evidence of activity at the Scio Church Road dwelling. However, agents conducting ground surveillance observed, on one occasion, the brief presence of a semi-trailer and workers laying a cement floor in one of the outbuildings.

During aerial surveillance on June 23, 1987 at approximately 3:45 p.m., DEA Agent Hawthorne Lee observed a pick-up truck and a burgundy vehicle at the Scio Church Road residence. Agent Lee notified his fellow agents. Shortly thereafter, he observed a silver vehicle arrive and depart from the property. Agent Lee observed the pick-up truck pulling away from the outbuildings at approximately 6:20 p.m. He testified that he lost sight of the pick-up truck, and the burgundy vehicle that he observed at 3:45 p.m. had departed. Transcript of Suppression Hearing on March 31, 1989 (hereinafter Transcript) at 34-37, United States v. Radka, No. 88-80865 (E.D.Mich. May 19, 1989). Because of dwindling fuel and the onset of darkness, Agent Lee terminated the aerial surveillance at approximately 9:00 p.m. Shortly before 9:00 p.m., he observed a dark blue vehicle enter the Scio Church Road property and park near the garage. At approximately 8:45 p.m., DEA Agent Donald Nelson and Detroit Police Officer McIntyre, who were in communication with the aerial surveillance team, observed the dark blue vehicle leave the premises.

Agent Nelson and Officer McIntyre left their ground surveillance post and followed the blue car that was travelling at speeds up to 80 mph. Approximately eight to nine miles from the Scio Church Road dwelling, Agent Nelson and Officer McIntyre stopped the car under the pretext of administering a speeding citation. They reprimanded the driver, Timothy Pelkey ("Pelkey"), for driving too fast and informed him that they wished to inspect his car to "see if everything was OK." Transcript at 46. Agent Nelson initiated the pretextual traffic stop because he believed Pelkey had picked up controlled substances from the Scio Church Road dwelling. Agent Nelson hoped to discover evidence to support a search of the house. Immediately after Officer McIntyre removed the keys from the ignition and opened the trunk, Pelkey fled. Agent Nelson apprehended Pelkey 35 yards from the car and returned him to the vehicle where four boxes of individually wrapped soles of hashish had been discovered. Pelkey was arrested for possession of hashish and transported to the Washtenaw County jail by sheriff's deputies.

At approximately 10:05 p.m., Agent Nelson and Officer McIntyre returned to the Scio Church Road premises. Before returning, they instructed the ground surveillance agents to detain any vehicles leaving the location. In their absence, the agents stopped Lawrence Potalivo ("Potalivo"), who was exiting the property in a Volkswagen registered to Radka. A search of the car failed to produce any contraband. The house, surrounded by heavy trees and brush, is set back an eighth of a mile from the road where Potalivo was stopped; it is one half mile from any other residence.

Prior to his return, Agent Nelson decided to enter and secure the Scio Church Road premises. Transcript at 73. He thought the law enforcement activities were conspicuous to anyone driving on Scio Church Road. He believed that acquaintances or confederates in the suspected drug trafficking could observe the agents and alert those on the premises. Agent Nelson reasoned that information concerning the police surveillance would likely spur the flight of those involved and the destruction of evidence.

Just prior to entry, Agent Nelson asked Agent William Ripp to contact the Assistant United States Attorney involved in this case. The Assistant United States Attorney was contacted after the premises had been entered and secured. No attempt was made to contact a federal magistrate until midnight--approximately two hours after the initial entry.

Shortly after 10:00 p.m., the agents entered the property, proceeded up the driveway, and knocked on the door. Receiving no response after 45 seconds, the agents effected a forced entry. In the house, the agents discovered Radka along with two rifles and one handgun. Three soles of hashish were found in the kitchen. While searching the larger shed, agents heard a rustling noise in the smaller shed. Inside the smaller shed, the agents discovered a pick-up truck with its door open and its interior lights on. They also found a large open container holding cardboard boxes.

After securing the premises, Agent Ripp prepared the application for a telephonic search warrant. At 4:49 a.m. on June 24, 1987, Magistrate Virginia M. Morgan issued a telephonic search warrant for the Scio Church Road property. Fed.R.Crim.P. 41(c)(2).

Upon executing the search warrant, the agents discovered in the house two motor vehicles, three soles of hashish, a .25 caliber automatic handgun, a .22 caliber rifle, a 30-30 caliber rifle, and a 20 gauge shotgun. In the smaller shed, the agents found twenty-two cardboard boxes inside a metal container of hashish and a full capacity beam scale. The agents seized a total net weight of 688 kilograms of hashish during the June 24, 1987 search of the Scio Church Road dwelling.

B.

In a two-count federal grand jury indictment filed December 21, 1988 and a superseding indictment filed March 21, 1989 Radka was charged with: count 1, aiding and abetting Timothy Pelkey in the possession with the intent to distribute the hashish found in Pelkey's car, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; ¹ and count 2, possession with intent to distribute the hashish found on his property, in violation of 21 U.S.C. Sec. 841(a)(1). On March 13, 1989, Radka moved to suppress the evidence challenging the propriety of the warrantless entry. On March 31, 1989, an evidentiary hearing was held on Radka's motion before the Honorable Horace W. Gilmore. On that same date, the motion to suppress was denied and an order was subsequently entered.

Radka pled guilty to count two of the superseding indictment charging him with possession with the intent to distribute over 100 kilograms of hashish. The Rule 11 plea agreement was taken subject to appellate review of the denial of Radka's motion to suppress. Fed.R.Crim.P. 11(a)(2).

On July 24, 1989, Radka was sentenced to eight years in prison and four years of supervised release. ² He was fined $5000; and a $50 special assessment was imposed. Radka filed a timely notice of appeal on July 27, 1989.

II.

On appeal, Radka argues that the government failed to prove the propriety of the warrantless entry onto his property which resulted in the discovery and seizure of the hashish. The government counters that exigent circumstances justified the warrantless entry into the house and outbuildings to secure the premises and prevent the destruction of evidence pending the issuance of a search warrant. We disagree with the district court's finding that there was an objectively reasonable basis for concluding that the loss or destruction of evidence was imminent. Therefore, we find that the district court erred in denying Radka's motion to suppress the evidence.

A.

A central tenet of the fourth amendment is the requirement that searches and seizures be conducted pursuant to warrants issued, based on probable cause, by a neutral and detached magistrate. See United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976) ("The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.") A warrant issued by a neutral and detached magistrate guarantees individuals freedom from capricious governmental interference. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable [people] draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."). The probable cause standard further protects against unjustified government intrusion. Id.; Martinez-Fuerte, 428 U.S. at...