U.S. v. Chandler
| Decision Date | 14 August 1998 |
| Docket Number | No. 98-40003-01-GTV.,98-40003-01-GTV. |
| Citation | 18 F.Supp.2d 1240 |
| Parties | UNITED STATES of America, Plaintiff, v. Cecil W. CHANDLER, III, Defendant. |
| Court | U.S. District Court — District of Kansas |
Charles D. Dedmon, David J. Phillips, Office of Federal Public Defender, Topeka, KS, Steven J Schweiker, Overland Park, KS, for defendant.
Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for U.S.
The Report and Recommendation entered by Magistrate Newman is adopted by this court. Defendants' motion to suppress the evidence is granted. This case is set for trial, Monday, Sept. 14, 1998, 1:30 p.m.
The court has referred this matter to the undersigned United States Magistrate Judge for Report and Recommendation on defendant's Motion to Suppress (doc. 22).
On May 5, 1998 and May 26, 1998, the court conducted hearings on Defendant's Motion to Suppress. At the close of the hearings, the court took the matter under advisement. The court has considered this matter and is prepared to submit this Report and Recommendation to the district judge.
On January 7, 1998, the grand jury returned a two-count indictment against Cecil W. Chandler, III. Count One charges that on October 2, 1997, Cecil Chandler knowingly and intentionally possessed with the intent to distribute or aided and abetted in possession with the intent to distribute approximately 156 grams of a substance or a mixture of substances containing a detectable amount of cocaine base, "crack" cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. Count Two charges that on or about October 2, 1997, Cecil Chandler conspired with one Tamika Moore and perhaps other persons to possess with the intent to distribute and to distribute in excess of 50 grams of a substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and 18 U.S.C. § 2.
Defendant requests the suppression of all items seized pursuant to a seizure warrant executed on October 2, 1997. The evidence presented at the suppression hearing established that officers seized 156 grams of "crack" cocaine, scales, a Wal-Mart shopping bag, a cellular telephone, two pagers, photographs, letters, various documents, clothing, and drug paraphernalia including a bong and plastic bags at 908 S. Elm in Ogden, Kansas. From 827 W. 12th # F, Junction City, Kansas, officers seized currency, letters, keys, rolling papers, and various documents. From Room 17 of the Dreamland Motel, Geary County, Kansas, officers seized two Sony Playstations, video games, tennis shoes, clothing, and a watch.
On October 2, 1997, Detective Joseph Espy of the Junction City Police Department executed an affidavit in order to obtain a seizure warrant for the search of 827 W. 12th # F, Junction City, Kansas; Room 17 of the Dreamland Motel, Geary County, Kansas; and 908 S. Elm, Ogden, Kansas, to locate items for seizure.1 In this affidavit, Detective Espy set forth certain facts related to a stop and arrest of defendant which took place on June 29, 1997. The affidavit stated that defendant was stopped and given a citation for loud music while driving a 1996 Oldsmobile owned by Enterprise Leasing and leased to one Louisa Seabury. After obtaining defendant's consent to search the vehicle, a single rock of "crack" cocaine was found under the driver's seat and defendant was, thereafter, arrested. The vehicle was towed to a storage lot and the affiant contacted Enterprise Leasing Company who advised that the value of the vehicle was $12,137. The affidavit alleged the criminal history of defendant including prior arrests in Junction City, Kansas and Topeka, Kansas, on drug related charges involving cocaine during 1995, and a New York conviction in 1990, for possession of cocaine with intent to sell. The affidavit then alleged that on October 1, 1997, the affiant arrested defendant for felony possession of marijuana at a time when defendant was in the company of one David Seabury who was also arrested on two warrants related to the possession of marijuana. The affidavit alleged that the affiant seized defendant's vehicle. Upon search of the vehicle, a Cellular One service agreement was found signed by a Christopher Chandler, who purported to reside at 908 Elm Street, Ogden, Kansas. The affiant noted that a confidential source had advised that defendant had a safe house in Odgen at the same address. At the time of the arrest, a motel key to Room 17 of the Dreamland Motel was found in defendant's pocket and defendant advised that he was staying there for a couple of days. He gave his residence as 827-F West 12th Street, Junction City, Kansas, which was an address that he used on the Kansas Arrest Form and the address to which he returned after being released on bond. The affidavit noted that on June 30, 1997, a prior "seizure search" warrant was issued and executed on 829-3 W. 12th St., where no items were located or seized.
On October 2, 1997, at 7:46 p.m., a Geary County state district court judge issued a seizure warrant, pursuant to K.S.A. § 60-4107(a) of the Kansas Standard Asset Seizure and Forfeiture Act (herein "the Act"),2 to the Sheriff of Geary County, Kansas, and/or Junction City Drug Task Force granting permission to seize property belonging to Cecil Chandler, III, at the identified locations, but imposing restrictions, limiting the property to be seized to "currency, electronic equipment, or jewelry ... not exceeding an estimated fair market value of $11,000." The face of the warrant identified the defendant as "1996 Oldsmobile Achieva" and listed "Substitute Assets" as $115 cash, NEC pager, men's gold ring, diamond earring, and any personalty located at 829-3 W. 12th Junction City, Kansas. It also identified the "Owner" as Cecil Chandler, III.
The evidence at the suppression hearing established that the seizure warrant was executed on October 2, 1997, at 908 S. Elm in Ogden, Kansas. Initially, Michael D. Life, a Junction City police detective and Thomas Alongi, an assistant Geary County attorney, were positioned at the back of the house to secure the safety of the officers. Bill Reese, a Riley County law enforcement officer, Joseph Espy, a Junction City police detective and perhaps other law enforcement officers, approached the front of the house. When the officers at the front of the house announced their presence, the occupants requested that they "wait a minute." The detective and county attorney positioned at the back of the house observed Tamika Moore, one of the occupants of the house, open the back door, place a blue plastic Wal-Mart bag off to the side of the back porch on the outside of the house and let a dog into the back yard. The bag was translucent. The detective at the back of the house told the county attorney to watch the bag, went around the house, entered the residence through the front door, went through the house to the back yard and seized the bag. He brought the bag into the house, opened it, and discovered approximately 156 grams of crack cocaine and scales therein. The detective testified that he "couldn't tell without really getting into (the bag) that there was cocaine in it."3 During the course of the search of the house, the officers also seized a cellular telephone, two pagers, photographs, letters, various documents, clothing, and drug paraphernalia including a bong and plastic bags.4 Detective Espy testified that items such as photos, documents and letters were seized for evaluation as evidence in connection with various ongoing investigations. The seizure warrant was also executed at 827 W. 12th # F and Room 17 of the Dreamland Motel.
Other evidence presented at the suppression hearing detailed a history of the use of seizure warrants in Geary County and a history of defendant's contacts with law enforcement officers from the time of his initial stop on June 29, 1997. In addition to the facts alleged in the October 2, 1997, affidavit set forth above, officers testified that the street value of the cocaine discovered in the June 29, 1997, stop and arrest was approximately $20. During the June 29 arrest, officers seized $115 cash, an NEC pager, a gold ring, and a diamond earring from defendant's person. On June 29, 1997, a Junction City police officer submitted an affidavit to a Geary County district court judge in order to institute civil forfeiture proceedings, pursuant to K.S.A. § 60-4107, related to the property on defendant's person at the time of the June 29 arrest. This affidavit set forth facts related to the stop and arrest of defendant, the ownership and lease of the 1996 Oldsmobile, and the property found on defendant at the time of arrest. It did not set forth any facts which would establish that the property taken from defendant was subject to forfeiture under K.S.A. § 60-4101, et seq.
On the following day, June 30, 1997, Detective Espy executed an affidavit for the purpose of obtaining a civil seizure warrant pursuant to K.S.A. § 60-4107(a). In this affidavit the detective set forth facts of the stop and arrest which took place on June 29, 1997, and further alleged that Enterprise Leasing had advised that the value of the 1996 Oldsmobile was $12,137. The affidavit also alleged a criminal history of prior arrests in Junction City and Topeka on drug-related charges, and a New York conviction in 1990 for possession of cocaine with intent to sell. The affidavit alleged that defendant used several names and that he was serving a term of supervised probation for a conviction related to the possession of marijuana under the name of Cecil Johnson. The affidavit alleged that K.S.A. § 60-4115(A)(6) states "that when property of an owner involved in illicit activity cannot be seized because of the interest of an innocent third party (i.e. Enterprise Leasing) that ...
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