U.S. v. Carroll
| Decision Date | 01 February 2008 |
| Docket Number | No. 1:07-cr-0016-4-WSD-GGB.,1:07-cr-0016-4-WSD-GGB. |
| Citation | 537 F.Supp.2d 1290 |
| Parties | UNITED STATES of America, v. Jeremiah CARROLL, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Jeremiah Carroll, Los Gatos, CA, pro se.
Bruce S. Harvey, Law Office of. Bruce Harvey, Atlanta, GA, for Defendant.
Elizabeth M. Hathaway, Evan S. Weitz, U.S. Attorney's Office, Atlanta, GA, for Plaintiff.
This matter is before the Court on Magistrate Judge Brill's Report and Recommendation ("R & R") [123] denying Defendant Jeremiah Carroll's ("Carroll") Motion to Suppress Evidence and Statements [84] and on Carroll's Objections to the Court's Report and Recommendation [128]. Also before the Court is Magistrate Judge Brill's Report and Recommendation [126] denying Carroll's Motion to Suppress Information Obtained from His Blackberry PDA [106] and Carroll's Objections to the Court's Report and Recommendation on His Motion to Suppress Evidence Seized from His Blackberry PDA [129].
Defendant Carroll is charged with various counts related to the possession of at least one hundred kilograms of marijuana. Before the Court are two motions by Carroll to suppress evidence collected by the Government during its investigation. First, Carroll seeks to suppress evidence obtained during the search and seizure of a trailer at his residence. Second, he seeks to suppress the results of a search of his Blackberry Personal Digital Assistant ("Blackberry"). This search was conducted when Carroll voluntarily surrendered to law enforcement officials.
On February 20, 2007, as part of an ongoing investigation into marijuana smuggling, federal law enforcement agents obtained a warrant to arrest Carroll. In the early morning hours of February 26, 2007, Austin Police Detective Paul Brick ("Brick") went to a house located at 2601 Neimann Way, in Austin, Texas, which was believed to be Carroll's residence. Brick had been advised by Drug Enforcement Agency ("DEA") agents that a warrant to arrest Carroll on charges of conspiracy to distribute marijuana had been issued. Brick was advised that the conspiracy might involve smuggling marijuana in large trailers.
When Brick arrived at the home, he first conducted a passive surveillance of the front of the home. A black Ford F-350 truck was parked on the street outside of the front of the residence. A large Carson trailer (the "trailer") was attached to the truck.
Other Austin Police officers later joined Brick as he was conducting surveillance. Among those who arrived was Detective Garrie Moore ("Moore"), a K-9 handler for the narcotics unit. Moore brought his drug-detecting dog, Azteck. Brick and the other officers continued to conduct surveillance of the outside of the residence for at least an hour.1 Moore at some point walked Azteck around the exterior of the trailer (the dog "sniff"). Moore testified that Azteck showed a behavior change2 suggesting he had detected the scent of illegal narcotics near the middle of one side of the trailer. Azteck crawled under the trailer, moved to the door on the other side of the trailer, and sat down, giving a positive alert for illegal substances.3 Azteck was off his leash when he was altered.
Brick and the other officers continued their surveillance for two more hours. Eventually, Brick approached the residence and knocked on the front door. Rachel Lyon ("Lyon") answered. Brick told her that the trailer was parked illegally in front of a fire hydrant and asked her to move it. Lyons agreed and went back into the residence to get her keys. When Lyons stepped out of the house, Brick informed her that the officers' purpose at the residence was to arrest Carroll on a federal warrant. Lyons permitted the officers to search the house for Carroll. Carroll was not found in the residence.
The officers then searched the trailer in the street, another trailer parked in the driveway, and the F-350 truck. No contraband was found during the search.4 The officers found what they characterize as a "hidden compartment" in the roof of the trailer. The compartment did not contain any contraband. The Government seeks to introduce photographs of and testimony about the existence of this compartment at trial. Carroll moves to suppress this evidence.
On March 9, 2007, Carroll, accompanied by counsel, voluntarily, surrendered to law enforcement officers at their offices. Carroll was carrying a backpack when he surrendered. Law enforcement officers searched the backpack in the presence of Carroll's lawyer, and discovered the Blackberry.5
The Blackberry's functions include a cellular telephone, which has both temporary and permanent memory. The temporary memory contains, for example, a "recent calls" list. The permanent memory contains more static, stable data, such as a programmable "contact" list of names, addresses, and phone numbers. The "recent calls" list is dynamic and changes every time the Blackberry receives a call. The "contacts" list changes only when changes are inputted.
Law officers searched and recorded the contents of the Blackberry's "contacts" list. The Government seeks to introduce some of the contents of the "contacts" list at trial. Carroll seeks to suppress this evidence.
On October 31, 2007, Magistrate Judge Brill issued an R & R denying Carroll's motion to suppress evidence from the search and seizure of the trailer. The R & R held specifically that the search of the trailer was not pretextual, and that Brick and Moore had probable cause to search the trailer based on Azteck's alert and the mobile vehicle exception to the warrant requirement. The R & R found that Azteck was a sufficiently reliable drug detection dog for his alert to constitute probable cause to search.6
On November 5, 2007, Magistrate Judge Brill issued an R & R denying Carroll's motion to suppress the contents of the Blackberry. The R & R reasoned that the search of the Blackberry was a proper search incident to arrest.
Carroll properly objected to both R & Rs. For the reasons set forth below, the Court adopts the R & R denying the motion to suppress the fruits of the search of the trailer. The Court requires a further hearing on Carroll's Objections regarding the search of the Blackberry.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). A district judge "shall make a de novo determination of those portions of the report or specify proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made, by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990). With respect to those findings and recommendations to which the Defendant has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
In this case, Carroll has articulated specific objections to the Magistrate Judge's conclusions that the search of the trailer was not pretextual, that the search was proper, and that Azteck's alert constitutes probable cause. Carroll also specifically objects to the R & R's failure to discuss the seizure of the trailer, to the R & R's recognition of the arrest warrant as a relevant fact in the record, and to several of the R & R's findings of fact about the sequence of events at the time the trailer was searched.7 Carroll also objects to the R & R's findings of law regarding the search of the Blackberry. The Court considers the objections de novo.
The R & R held that the warrantless search of the trailer was reasonable because Azteck's positive alert provided probable cause to suspect the presence of contraband, and the fact that the trailer was mobile created an exigent circumstance justifying conducting the search without a warrant. For the reasons set forth below, the Court agrees.
Individuals do not have any expectation of privacy in odors emanating from their cars. Hearn v. Board of Pub. Educ., 191 F.3d 1329, 1332 (11th Cir.1999). "A dog sniff of a person's property located in a public place is not a search within the meaning of the Fourth Amendment" Id. A dog sniff of the exterior of a car, therefore, is not a "search" for constitutional purposes. Merrett v. Moore, 58 F.3d 1547, 1553 n. 11 (11th Cir.1995).
The trailer was parked along the curb on a public street. Moore could, accordingly, direct Azteck to sniff the publicly available exterior of the trailer for any reason, or no reason at all, without violating Carroll's Fourth Amendment rights.
The law is well-settled that probable cause to search exists "when a drugtrained canine alerts to drugs." United States v. Tamari, 454 F.3d 1259, 1265 (11th Cir.2006) (citation and quotation omitted). Carroll argues that Azteck's positive alert on the trailer did not provide probable cause because Azteck does not "alert" to the presence of narcotics with sufficient specificity. Carroll also argues that Azteck has a history of unreliability that made it unreasonable for Moore to rely on his alert as establishing the presence of narcotics.
Carroll first argues that Azteck does not give a sufficiently identifiable "alert" for his sniff to establish probable cause. "A handler must be able to properly interpret a canine's subtle signals." United States v. Outlaw, 134 F.Supp.2d 807, 813 (W.D.T...
To continue reading
Request your trial
-
State v. Haar
...parked at weigh station during a routine safety inspection was not a violation of the Fourth Amendment); United States v. Carroll, 537 F.Supp.2d 1290, 1293, 1296 (N.D.Ga.2008) (holding no Fourth Amendment violation when police initiated a canine sniff of a trailer attached to a pickup truck......
-
Frost v. State
...when it had “rate of reliability ... between 90 and 97 percent,” even if it “occasionally alerted falsely”); United States v. Carroll, 537 F.Supp.2d 1290, 1297 (N.D.Ga.2008) (“Even if Azteck's accuracy rate is only 52%, that level of reliability is sufficient for his alert to establish prob......
-
Frost v. State Of Fla.
...when it had "rate of reliability... between 90 and 97 percent," even if it "occasionally alerted falsely"); United SStates v. Carroll, 537 F. Supp. 2d 1290, 1297 (N.D. Ga. 2008) ("Even if Azteck's accuracy rate is only 52%, that level of reliability is sufficient for his alert to establish ......
- Losapio v. Comcast Corp.