U.S. v. Clay
| Decision Date | 18 October 2007 |
| Docket Number | No. 1:07-cr-178.,1:07-cr-178. |
| Citation | 521 F.Supp.2d 633 |
| Parties | UNITED STATES of America, Plaintiff, v. David CLAY, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Mark Courtade, AUSA, Grand Rapids, MI, for Plaintiff.
Christopher Yates, Grand Rapids, MI, for Defendant.
On July 12, 2007, the United States government issued an indictment charging David Clay with the manufacture of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c), and seeking forfeiture of property under 21 U.S.C. § 853. Clay was arraigned and released on an unsecured $15,000 appearance bond on July 30. On August 31, Clay moved to suppress evidence on the ground that the affidavit presented to the United States Magistrate Judge ("magistrate") did not establish probable cause and thus did not support issuance of the warrant to search his home. Clay also contends that the Leon good-faith exception to the warrant requirement and exclusionary rule does not apply. On September 20, the prosecution filed a brief in opposition to the motion, and Clay did not file a reply brief. A final pretrial conference is scheduled for Monday, October 22, 2007, and a jury trial is scheduled to commence on Tuesday, October 30, 2007.
For the reasons that follow, the court will deny the defendant's motion to suppress and will admit the evidence yielded by the search.
Police officer Powell received an anonymous tip, allegedly based on first-hand observation, that marijuana was being grown in a secret room beneath Clay's residence in Sparta, Michigan. In an effort to corroborate the tip, Officer Powell learned that Clay resided at the address given, that Clay had a 2003 conviction for delivery of marijuana, and that a previous search of the same premises found that Clay had been growing 72 marijuana plants with the aid of lights and timers. To ascertain whether Clay might be growing marijuana, Officer Powell obtained Clay's electric bills, and an unnamed electricity-company employee allegedly told him that the usage was unusually high and showed abnormal fluctuations in usage from month to month.
In support of his application for a warrant to search Clay's residence, Officer Powell submitted an affidavit to the Magistrate Judge stating, in part:
Affiant says that he has probable cause to believe that the above-listed things to be seized are now located upon said premises, based upon the following facts:
* * * * * *
Your affiant and the Kent Area Narcotics Enforcement Team are currently involved in the investigation of the sales and manufacture of marijuana occurring from the residence located at 45 Grove St, City of Sparta, County of Kent, 49345, State of Michigan.
Your affiant received an anonymous tip about a possible marijuana grow operation in the basement of 45 Grove St, City of Sparta, State of Michigan, County of Kent, 49345. The tipster stated that a subject named David Clay resides at this address. The tip stated that David Clay has a hidden door in the bedroom closet that goes into the basement area where there is a marijuana grow operation. The tipster stated David showed him/her the hiding area and the plants' while he/she was at the residence. David also at that time stated "the police can't get me."
Your affiant checked this address through the Michigan Secretary of State, which shows David Michael Clay, DOB: 04-27-1972, residing at 45 Grove St....
Your affiant conducted a criminal history check and discovered [that] David Michael Clay, DOB: 04-27-1972 has been convicted of delivery/manufacture [of] marijuana by the 17th Circuit Court on 12-10-2003. That conviction came from an investigation done by the Kent Area Narcotics Enforcement Team. On that case the Detectives performed a consent search at 45 Grove St.... Located in that consent search were a total of 72 marijuana plants, packaging material, and miscellaneous growing equipment including lights and timers.
Your affiant conducted a search warrant with Consumers Power for electric usage and billing history at 45 Grove St.... Through an employee at Consumers Power the usage was described as being high for a single residence and shows an abnormal fluctuation in month to month usage.
Based on training and experience, your affiant has learned that an analysis of the power usage can show peaks and valleys in the amount of power used, indicating various stages in the grow
* * * * * *
Wherefore, your affiant for the foregoing reasons does verily believe that evidence of further narcotics [sic] trafficking, proceedings of narcotics trafficking, and/or records/documents or other indicia of narcotics trafficking will be discovered within the above described premises and/or persons.
The Magistrate Judge concluded that there was probable cause to search the premises and issued a search warrant, which Powell executed and found that Clay was growing marijuana in the secret basement as the anonymous tipster had alleged.
In seeking the suppression of evidence, the defendant has the burden of proving some constitutional or statutory violation justifying suppression. U.S. v. Bethal, 245 Fed.Appx. 460, 465 (6th Cir. 2007) (quoting US v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.2003) (quoting US v. Feldman, 606 F.2d 673, 679 n. 11 (6th Cir.1979))).
To determine whether an affidavit was sufficient to support issuance of a search warrant, the court asks whether the magistrate "had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited." Rodriguez-Suazo, 346 F.3d at 643 (quoting US v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). The magistrate judge's determination of probable cause is accorded great deference. Id. (also citing U.S. v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).
Probable cause to search is described as a "fair probability" that evidence of criminal activity will be found; there need not be a prima facie showing of criminal activity. Rodriguez-Suazo, 346 F.3d at 643 (citing IL v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Put another way, probable cause is defined as "`reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.'" US v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (Griffin, J.) (quoting US v. Bennett, 905 F.2d 931, 934 (6th Cir.1990)), cert. denied, ___ U.S. ___, 127 S.Ct. 2436, 167 L.Ed.2d 1137 (2007). The court determines probable cause by considering "the totality of the circumstances, including the veracity and basis of knowledge of persons supplying hearsay information...." Jackson, 470 F.3d at 306 (quoting US v. Williams, 224 F.3d 530, 532 (6th Cir.2000) (internal quotation marks omitted)). The totality-of-the-circumstances standard means that the court does not scrutinize the affidavit line-by-line. Jackson, 470 F.3d at 306 (citing U.S. v. Woosley, 361 F.3d 924, 926 (6th Cir.2004)).
While independent corroboration of a confidential informant's story is not a sine qua non to a finding of probable cause, "in the absence of any indicia of the informant's reliability, courts insist that the affidavit contain substantial independent corroboration." Jackson, 470 F.3d at 307 (citing US v. Frazier, 423 F.3d 526, 532 (6th Cir.2005)). Anonymous tips are subject to "more stringent scrutiny of their veracity, reliability, and basis of knowledge than reports from confidential informants." US v. Helton, 314 F.3d 812, 820 (6th Cir. 2003).1
Defendant Young asserts that the affidavit failed to offer any basis for believing that the anonymous tipster was telling the truth: Mot. to Suppress 3 ¶¶ 7-8 ( US v. Helton, 314 F.3d 812 (6th Cir.2003)).
But Clay's characterization of the officer's corroboration efforts is untenable. The officer confirmed that a David Clay lived at the address where Clay allegedly showed marijuana plants to the tipster and that Clay had a prior conviction for growing the same illegal substance (marijuana) at the very same residence. While those facts alone might not be enough to support a finding of probable cause in the absence of some evidence of the tipster's past reliability, see Hale v. Kart, 396 F.3d 721, 729 (6th Cir.2005) (), the abnormal electricity usage pattern discovered at Clay's residence places the affidavit on firm ground.
Clay does not attempt to deny that his electricity usage, both in quantity and fluctuation, is arguably consistent with a marijuana growing operation; in light of his past conviction for running just such an operation at the location of the place to be searched, the affidavit showed a "fair probability", Rodriguez-Suazo, 346 F.3d at 643, that there was an illegal grow operation at Clay's residence.2
Federal courts around the country have noted the relevance and weight of electricity-usage evidence in determining probable cause or the reasonableness of a search. "Corroboration from facts such as increased electrical usage may compensate for lack of information about an informant's reliability or the basis of his knowledge." U.S. v. Kattaria, 503 F.3d 703, 707, 2007 WL 2892027, *4 (8th Cir. Oct. 5, 2007) () (citing US v. Olson, 21 F.3d 847, 850 (8th...
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...usage may compensate for lack of information about an informant's reliability or the basis of his knowledge."); U.S. v. Clay, 521 F.Supp.2d 633, 639 (W.D.Mich.2007) ("Federal courts have noted the relevance and weight of electricity-usage evidence in determining probable cause or the reason......
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