U.S. v. D'Armond

• Decision Date: 13 October 1999
• Docket Number: No. 98-4007602-SAC.,No. 98-40076-01-SAC.,98-40076-01-SAC.,98-4007602-SAC.
• Citation: 80 F.Supp.2d 1157
• Parties: UNITED STATES of America, Plaintiff, v. Ray Lee D'ARMOND, Brian Keith Lindberg, Defendants.
• Court: U.S. District Court — District of Kansas

Page 1157

80 F.Supp.2d 1157

UNITED STATES of America, Plaintiff, v. Ray Lee D'ARMOND, Brian Keith Lindberg, Defendants.

No. 98-40076-01-SAC.

No. 98-4007602-SAC.

United States District Court, D. Kansas.

October 13, 1999.

Order Denying Reconsideration November 18, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for U.S.

Randy L. Baird, Topeka, KS, Chris N. Cowger, Topeka, KS, Mark L. Bennett, Jr., Mark L. Bennett, Jr. & Associates, Topeka, KS, Stephen W. Kessler, Topeka, KS, Eric Kjorlie, Topeka, KS, J. Richard Lake, Holton, KS, William K. Rork, Rork Law Office, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On November 19, 1998, the grand jury returned a superseding indictment¹ charging Ray Lee D'Armond, Jr. and Brian Keith Lindberg with conspiring to manufacture in excess of 10 grams of methamphetamine (in violation of 21 U.S.C. § 841(a)(1)), attempting to manufacture methamphetamine (in violation of 21 U.S.C. § 841(a)(1), and creating a substantial risk of harm to human life by attempting to manufacture methamphetamine (in violation of 21 U.S.C. § 858). D'Armond is also charged with one count of being a felon in possession of a firearm (in violation of 18 U.S.C. § 922(g)(1)), one count of using and carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)) and two counts of possessing listed chemicals (iodine and ephedrine) with the intent to manufacture methamphetamine (in violation of 21 U.S.C. § 841(d)(1)).

On August 13, 1999, this court entered a memorandum and order ruling on several pending motions in this case. See United States v. D'Armond, 65 F.Supp.2d 1189 (D.Kan.1999).

On October 5, 1999, the court conducted a hearing to consider the following motions which remained undecided:

D'Armond's Motions (now represented by William Rork):

1. Motion to Suppress (Dk. 16); Brief in Support (Dk. 17); Supplemental Brief in Support (Dk. 29); Supplemental Motion to Suppress Illegally Seized Evidence and Memorandum in Support Thereof (Dk. 129).

2. Motion for Enlargement of Time in Which to File Additional Motions (Dk. 130).

Lindberg's Motion (now represented by Randy Baird):

1. Motion to Suppress Evidence (Dk. 61); Memorandum in Support of Motion to Suppress (Dk. 62).

The government filed a consolidated response to the defendants' first round of motions to suppress (Dk. 72) and a separate response (Dk. 132) to D'Armond's supplemental motion to suppress.

During the October 5, 1999, hearing, the court heard the testimony of witnesses and received into evidence a videotape of the traffic stop of D'Armond and the search warrant application/search warrant for D'Armond's trailer. The court has since watched the videotape of the traffic stop. The tape is of poor quality, as the darkness of night and bright lights of passing autos mix to make it very difficult to discern what is transpiring. Much of the tape is also inaudible. Having considered the evidence presented, the arguments and briefs of counsel, the court is now prepared to rule.

Motion to Suppress (Dk. 16); Brief in Support (Dk. 17); Supplemental Brief in Support (Dk. 29); Supplemental Motion to Suppress Illegally Seized Evidence and Memorandum in Support Thereof (Dk. 129); Motion to Suppress Evidence (Dk. 61); Memorandum in Support of Motion to Suppress (Dk. 62).

D'Armond seeks an order suppressing from evidence items seized from his person and truck following a stop for a broken tag light. Although he consented to the search of his truck, D'Armond now contends that his consent was involuntary and the product of an illegal detention. D'Armond contends that the Terry pat down before the search of his truck was also unlawful. D'Armond also seeks to suppress from evidence all items seized during the search of his trailer, arguing that the subsequent search of his trailer stemmed from information illegally obtained during the traffic stop and therefore must be suppressed under the fruit of the poisonous tree doctrine.

Lindberg seeks an order suppressing the fruits of the search of D'Armond's trailer. Lindberg, who claims to have been an overnight guest at the mobile home (and therefore has standing),² argues that the officers initial entry into the home was unlawful as they did not have a search warrant at the time they entered. Lindberg also contends that no exigent circumstance existed which would have justified a warrantless entry and placing him under arrest. During the post-arrest search of his person, a small vial of alleged drugs was found.

The government responds, arguing that the initial stop of the vehicle for a broken tag light was lawful, that D'Armond was not unlawfully detained when he consented to the search of his vehicle, and that the search of D'Armond's person was a permissible Terry pat down for weapons. Once the vial of methamphetamine was discovered, Officer Thompson had probable cause to arrest D'Armond and search his vehicle incidental to an arrest.

As to the search of D'Armond's mobile home, the government contends that exigent circumstances justified the warrantless entry. Specifically, the government contends that the officers' entry was justified to prevent possible destruction of evidence and to protect the safety of everyone inside or nearby. In the alternative, the government contends that the evidence would have been inevitably discovered during the execution of the search warrant. As to the search of Lindberg's person, the government contends that Lindberg voluntarily consented to the search of his person. In the alternative, the government contends that the officers had probable cause to arrest Lindberg for manufacturing methamphetamine and that the search of his person was valid.

Findings of Fact

Based upon numerous citizen complaints, a "Crime Stoppers" tip, and information from a reliable confidential informant, officers focused their attention on 926 N.W. Western, a trailer home and the residence of Ray Lee D'Armond. On June 16, 1998, Topeka Police Narcotics Detective Thompson was conducting surveillance on D'Armond's residence. As D'Armond drove away from the residence in his 1989 pickup, Detective Thompson noticed that D'Armond's tag light was not working. Detective Thompson contacted Corporal Chapman to stop D'Armond for the defective tag light; driving without a tag light is a violation of a city ordinance.

D'Armond's vehicle was in fact stopped by Corporal Chapman. Upon learning the reason for the stop, D'Armond admitted that the tag light was not working and that he had parts in his truck to replace the light. During the time that D'Armond waited by the rear of his truck, he repeatedly put his hand in his front right pocket. A routine check for outstanding warrants revealed the possibility of one or more warrants for some parking violations, but nothing could be confirmed. After returning D'Armond's papers and informing him that he should try to resolve the issue of whether he still had any outstanding parking violations, Corporal Chapman thanked D'Armond for his cooperation.

As D'Armond turned to leave, Corporal Chapman asked D'Armond if he had any alcohol, guns or drugs in the truck. D'Armond said that he did not. Corporal Chapman asked D'Armond if he would mind if he took a quick search of D'Armond's truck to confirm the truth of D'Armond's statement. Although he initially took umbrage at Corporal Chapman's request, D'Armond consented the search of his truck. Prior to searching the truck, but after obtaining consent to search the truck, Corporal Chapman conducted a Terry search for weapons. During the Terry search, Officer Chapman felt a small cylindrical object in D'Armond's right front pocket. Officer Chapman asked D'Armond "what was in that pocket." At first D'Armond said he didn't know, but he reached in and pulled out a lighter and a small bottle containing a white powder. Believing the bottle to contain methamphetamine, Corporal Chapman placed D'Armond under arrest for possession of drug paraphernalia. Officer Thompson's subsequent search of the vehicle revealed a gun and several items used in the manufacture of methamphetamine.

Based upon this information, Officer Thompson returned to headquarters to type an affidavit in the hope of obtaining a search warrant to search D'Armond's mobile home. Before obtaining the search warrant, Corporal Chapman told other officers to secure the mobile home. Upon arriving at the mobile home, officers knocked on the door but no one answered. The officers then knocked all around the exterior of the trailer, but still no one responded. Concerned about the safety of the occupant, and concerned that evidence was being destroyed, officers forced the door open again announcing their presence. Inside the trailer, officers discovered the odor of methamphetamine. Officers discovered a white male — the co-defendant Lindberg — who appeared delirious, drugged or extremely sleepy. While inside the trailer, Officers observed a methamphetamine processing lab. The inside of the trailer reeked of the odor of methamphetamine. Lindberg was placed in handcuffs and assisted outside.

Outside the trailer, Lindberg consented to a search of his person. During the search, Officer Roberts found, inter alia, a pocket knife and a small bottle of what appeared to be amphetamine. Officers waited for DEA agents and the HAZ MAT team to arrive at the mobile home and for the issuance of the search warrant.

Following the officers' warrantless entry into the trailer, the application for the search warrant was completed. The search warrant was issued approximately a half-hour after officers exited the mobile home. The six-page application for the search warrant included the following two sentences describing the officers' observations of the interior of D'Armond's trailer during their warrantless entry: "Once inside [D'Armond's...