U.S. v. Barth
| Decision Date | 30 October 2003 |
| Docket Number | No. C1-03-046.,C1-03-046. |
| Citation | 288 F.Supp.2d 1021 |
| Parties | UNITED STATES of America, Plaintiff, v. Shawn Leo BARTH, et al., Defendants. |
| Court | U.S. District Court — District of North Dakota |
Orell D. Schmitz, Schmitz Moench and Schmidt, Ross H. Espeseth, LaRoy Baird, P.C., Wayne D. Goter, Timothy Q. Purdon, Michael Ray Hoffman, Bismarck, ND, Benjamin C. Pulkrabek, Pulkrabek Law Firm, Mandan, ND, for defendants.
Jeannette Glatt, Bismarck, ND, pro se.
ORDER DENYING DEFENDANT BARTH'S MOTION TO SUPPRESS
Before the Court is the Defendant's Motion to Suppress evidence seized by law enforcement officers from a Chevrolet pickup, North Dakota license number DAG 643, on March 25, 2003. A hearing on the motion was held on October 27, 2003. For the reasons outlined below, the motion is denied.
On the evening of March 25, 2003, state district court Judge Bruce A. Romanick issued two search warrants authorizing law enforcement officers to search a house, outbuildings, and a utility trailer located at 2788 39th Avenue SW, Center, North Dakota, for the following: drug paraphernalia, methamphetamine, marijuana, currency, and indicia of drug trafficking. Additionally, Judge Romanick authorized a night search due to the lateness of the hour, and for fear the controlled substances would be removed the following morning. His finding of probable cause to issue the warrants was based upon Bismarck Police Detective Kenen Kaizer's sworn testimony that he had received information that the defendant, Shawn Barth, had hidden drugs in out-buildings and a utility trailer located on a farmstead at the aforementioned address that Barth had been renting.
The warrants were executed on March 25, 2003, at approximately 10:45 p.m. Detective Kaizer secured the scene with the assistance of members of the Metro Area Narcotics Task Force, the South Sakakawea Narcotics Task Force, and the Oliver County Sheriff's Department. The evidence has revealed that there were approximately 20-30 law enforcement officers on location. Task force members then searched the house (with the assistance of a certified drug detecting dog named "Shadow" that was handled by Detective Roger Becker) and utility trailer, and found drug paraphernalia, a .32 caliber revolver, several bags of marijuana, and a plastic bag containing white powder residue.
Parked on the lawn in front of the house was a white limousine. Officer Paul Olson of the Bismarck Police Department approached the limousine to look for anyone inside the vehicle. Officer Olson opened the back door of the limousine and peered inside to confirm that the limousine, was empty. Observing what he recognized as the scent of marijuana and two baggies in the back window of the limousine, he sought out the assistance of Detective Becker and his drug dog. Officer Becker presented the limousine to his drug detecting dog. When the dog gave a positive response to the vehicle, Bismarck Police Officers Paul Olson and Troy Schaner searched the limousine and found drug paraphernalia.
Meanwhile, Deputies Robert Fontenot and Eric Harmel approached a Chevrolet pickup, North Dakota license number DAG 643, that was parked on the side of the house. Using their flashlights to look into the pickup's window, the deputies observed a bandana adorned with drawings of marijuana leaves lying in an open dashboard compartment. See Government Ex. 4. Deputy Harmel entered the pickup and retrieved the bandana. Wrapped up inside the bandana was a plastic bag containing approximately one ounce of marijuana. Detective Becker did not remove the bandana and marijuana from the vehicle. The record reveals that upon learning of this discovery, Deputies Fontenot and Harmel were informed by several officers in the vicinity (Detective Becker, Officer Paul Olson, and Lieutenant Haas) that the search warrants did not extend to the Chevy pickup. Thereafter, Deputy Harmel responded by returning the bandana and marijuana to the dashboard compartment in the pickup and photographs were taken of the contraband. No further search of the pickup took place at that time. Surprisingly, neither Deputy Fontenot nor Deputy Harmel had reviewed the search warrants beforehand but both officers testified that they believed the warrants covered the vehicles.
The Chevy pickup was subsequently presented to the drug detecting dog and the dog gave a positive indication for the presence of drugs. Following the dog's alert, officers began searching the pickup, and found several plastic bags containing methamphetamine and marijuana under the passenger-side seat. Later that evening, the dog was presented to a third vehicle on the premises, a GMC truck. Again, the dog alerted. However, a search of the GMC truck yielded no illegal contraband.
On July 9, 2003, Barth was charged by Indictment with the following: (1) conspiracy to possess with intent to distribute and distribute methamphetamine; (2) possession of methamphetamine with intent to distribute; (3) distribution of methamphetamine; (4) possession of marijuana with intent to distribute; (5) possession of a firearm in furtherance of a drug trafficking crime; and (6) felon in possession of a firearm and ammunition.
On October 1, 2003, Barth filed a Motion to Suppress the evidence seized from the Chevy pickup, contending that the search of the Chevy pickup was invalid because it was separate and distinct from the property described in the search warrants.1 In addition, Barth asserted that the deputies' attempt to return the contraband and then have a drug detecting dog approach the pickup did not save the search.
The Government resists the Defendant's motion and has contended that the search of the Chevy pickup was authorized by virtue of the fact that it was located on the property described in the warrant. The Government also contends that the search of the Chevy pickup fell within the automobile exception to the warrant requirement and, in any event, the evidence recovered from the pickup is admissible under the inevitable-discovery exception to the exclusionary rule. According to the Government, the drug detecting dog was being led around to all of the vehicles located on the premises and, therefore, would have arrived at and alerted to the Chevy pickup eventually.
The Fourth Amendment secures the persons, houses, papers, and effects of the people against unreasonable searches and seizures by the government. The general rule is that the government must secure a warrant before conducting a search. United States v. Alberts, 721 F.2d 636, 638 (8th Cir.1983). "The authority to search granted by any warrant is limited to the specific places described in it and does not extend to additional or different places." United States v. Pennington, 287 F.3d 739, 744 (8th Cir.2002)(quoting United States v. Alberts, 721 F.2d 636, 639 (8th Cir.1983)). When an individual's home or vehicle is searched without a warrant, the government bears the burden of justifying the search. United States v. Selberg, 630 F.2d 1292, 1294 (8th Cir.1980). This justification must be made by way of evidence proving the existence of an exception to the warrant requirement. See United States v. Riedesel, 987 F.2d at 1383, 1388 (8th Cir.1993); United States v. Bruton, 647 F.2d 818, 822 (8th Cir.1981).
In this case, the search warrants issued by the state court authorized law enforcement officers to search the property named in the warrants; namely, the house, outbuildings, and utility trailer, for the property specified, i.e., drugs, drug paraphernalia, currency, and indicia of drug trafficking. Conspicuously absent from the warrants was the explicit authorization to search any motor vehicles. Thus, on their face, the search warrants authorized a search of specific buildings but the warrants did not expressly authorize a search of the Chevy pickup. Nevertheless, the Government contends that the warrants extended to all of the vehicles located on Barth's farmstead. The Court disagrees.
In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the United States Supreme Court held that a lawful search of fixed premises generally extends to every part of the premises in which the object of the search may be found, notwithstanding the fact that separate acts of opening or entry may be required to complete the search. The Supreme Court held that "a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found." 456 U.S. 798, 821, 102 S.Ct. 2157. Applying Ross and its progeny, numerous courts have recognized that "a vehicle found on a premises is considered to be included within the scope of a warrant authorizing a search of that premises." United States v. Reivich, 793 F.2d 957, 963 (8th Cir.1986); see United States v. Singer, 970 F.2d 1414, 1417-18 (5th Cir.1992); United States v. Gottschalk, 915 F.2d 1459 (10th Cir.1990); United States v. Griffin, 827 F.2d 1108, 1115 (7th Cir.1987); United States v. Asselin, 775 F.2d 445 (1st Cir.1985); United States v. Percival, 756 F.2d 600, 612 (7th Cir.1985); United States v. Bulgatz, 693 F.2d 728, 730 n. 3 (8th Cir.1982)(warrant for search of house justifies search of car parked in the garage attached to the house); United States v. Freeman, 685 F.2d 942, 955 (5th Cir.1982)(warrant for search of premises justifies search of jeep parked on the premises); United States v. Combs, 468 F.2d 1390, 1392 (6th Cir.1972); United States v. Napoli, 530 F.2d 1198, 1200 (5th Cir.1976). The term "premises" is defined by Black's Law Dictionary as "a house or building, along with its grounds." Black's Law Dictionary 1199 (7th ed.1999).
The search warrants at issue in this case bear a subtle yet distinctive difference from those at issue in the cases...
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