U.S. v. Elkins, 96-20152 D.
| Decision Date | 06 March 2000 |
| Docket Number | No. 96-20152 D.,96-20152 D. |
| Parties | UNITED STATES of America, Plaintiff, v. James ELKINS, Carol Elkins, et al., Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
James R. Garts, Jr., Harris, Shelton, Dunlap & Cobb, Memphis, TN, William D. Massey, Massey & McClusky, Memphis, TN, Michael J. Stengel, Stengel Law Firm, Memphis, TN, Paul D. Petruzzi, Black, Srebnick & Kornspan, P.A., Miami, FL, E.E. Edwards, III, Edwards & Simmons, Nashville, TN, for James Elkins.
A.C. Wharton, Jr., Wharton & Wharton, Memphis, TN, William D. Massey, Lorna S. McClusky, Memphis, TN, E.E. Edwards, Edwards & Simmons, Nashville, TN, Gerald F. Easter, Law Office of Gerald Easter, Memphis, TN, for Carol Elkins.
Carol Elkins, Memphis, TN, pro se.
Robert C. Irby, Law Office of Robert C. Irby, Memphis, TN, Sheila D. Brown, Law Office of Sheila D. Brown, for Jesus Morales.
Eugene A. Laurenzi, Agee, Allen, Godwin, Morris, Laurenzi & Hamilton, Memphis, TN, Robert C. Brooks, Law Office of Robert C. Brooks, Memphis, TN, for Raul Sandoval.
William C. Anderson, Jr., Anderson Law Firm, Memphis, TN, for Victor Saucedo.
T. Clifton Harviel, Jr., Federal Public Defender's Office, Memphis, TN, for Miguel Infante.
Lawrence W. Kern, Kern Law Firm, Memphis, TN, for Jose Infante.
Robert Miles Mason, Crone & Mason, PLC, Memphis, TN, for Juan Saucedo.
Matthew J. McDonald, Law Office of Mattew J. McDonald, Memphis, TN, for Artudo Infante.
Kathleen L. Caldwell, Taylor, Halliburton, Ledbetter & Caldwell, Memphis, TN, for Ricardo Sandoval, Jr. Howard Brett Manis, Law Office of Howard Manis, Memphis, TN, for Roberto Sandoval.
Christopher E. Cotten, U.S. Atty's Office, Memphis, TN, for U.S.
Before the court are the motions of the defendants, James Elkins and Carol Elkins, to suppress evidence gained from searches of their various properties, which were conducted both without and pursuant to warrants.1 The United States opposes the motions. Evidentiary hearings were conducted August 30-31, September 1-3, October 25-26, and 28, 1999, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See also United States v. Atkin, 107 F.3d 1213 (6th Cir.1997). The parties filed contemporaneous post-hearing briefs on or about January 3, 2000. The defendants also filed supplemental authority. Thus, the matter is ripe for decision.
During 1996, certain officers of the Memphis Police Department Organized Crime Unit and the Federal DEA Drug Task Force received information about a marijuana grow at 155 Scott Street and the building behind Scott Street. An anonymous caller, believed to be the original tipster, also told the officers that marijuana was being grown at the Elkins home at 1270 Tutwiler (testimony of Dion Cicinelli). The tip regarding the marijuana grow was received from an individual allegedly stopped for speeding in exchange for potential "help" with the speeding citation. The individual relayed information about the marijuana grow but did not provide a basis for his knowledge. There is a conflict in the testimony over who actually received the information. Officer Duane Gary ("Gary") testified that he received the information from Lieutenant David Martello (Martello) and Martello stated that he received the information from another officer, Dion Cicinelli (Cicinelli). The officers admitted that they had no knowledge of the reliability of the citizen informant or whether this person had ever previously given information to the police. Indeed, some of the officers admitted that the informant was not reliable.2 However, he was later paid for his information concerning 155 Scott Street. The primary police officers involved in the investigation were Gary, Joe Hoing (Hoing), Frank Bell (Bell), Cicinelli, and Martello.
During July and August of 1996, various police officers intermittently watched the addresses of 139/155 Scott Street3 and conducted some preliminary investigation. The officers watched the addresses from five to ten times during the two month period.
During the periods the address was watched, generally late at night, the investigating officers testified that they observed "a lot of traffic in the area." The officers recalled seeing two vehicles on one occasion, and on another occasion they observed two Hispanic males in a pick-up truck which went to 146 Neil Street and an African-American male a short distance down the street from 146 Neil Street, but apparently were unable to question them.4
They also observed James and Carol Elkins arrive and leave several times during the course of the surveillance and also observed a number of off-duty police officers in the area of 155 Scott Street.5 At one time, the officers spoke with James Elkins and he complained about the burglaries in the area. Elkins advised that he was employing off-duty police officers to provide security at his businesses at the Scott and Neil addresses. Elkins did not mention 2896 Walnut Grove. Elkins asked the officers to watch the area.
During the course of the investigation, Hoing checked with Memphis Gas Light and Water ("MGL & W") and discovered that at certain times of the year the utility bills of the addresses under surveillance were high. The officers did not indicate how high nor at what periods the bills were high. There was no testimony regarding utility checks made on the building at 2896 Walnut Grove prior to the August 22, 1996, search and seizure, although the affidavit for the warrant for 1270 Tutwiler issued on August 22, 1996, states otherwise. There were no references to the high utility bills in the affidavits applying for the warrants.
At some time prior to the application for and execution of the search warrants, a criminal records check performed on James Elkins revealed that he was a convicted felon. Apparently, the officers did not check any public records to determine if any business licenses were issued to Elkins for the addresses in question. However, the officers did observe large quantities of sheep manure (i.e., fertilizer) near the building at 146 Neil Street.
On or about August 19, 1996, during the surveillance of 155 Scott Street, Hoing testified that he met an Officer Tim Shields of the Memphis Police Department who was doing security work for Elkins. At that time, Hoing was accompanied by Bell and drug-detection dogs. Hoing testified that he had brought the dogs with him not to try and detect drugs but as a ploy6 in the event the police were spotted.7
The investigation become more intense when Martello received a call from Internal Affairs on August 19, 1996, inquiring if there was a drug investigation occurring on Scott Street, as there were several off-duty officers working security there. As a result of this call, Martello decided to bring the investigation to the next level.
Cicinelli testified that sometime during the month of July, he received an anonymous call at the Organized Crime Unit, informing him that Elkins had a marijuana grow at 155 Scott Street, at the building behind Scott Street, and at his residence at 1270 Tutwiler Street. However, the record is devoid of any other information concerning this anonymous caller.8 The timing and specificity of this anonymous caller and the coincidence of the call being forwarded directly to the appropriate investigating officer in a department the size of the Memphis Police Department raises significant credibility questions.
Several officers were watching the Elkins residence at 1270 Tutwiler through the night prior to August 21, 1996, in anticipation of speaking with James Elkins when he left for work in the morning. At the same time, several other officers, including Martello, Bell, Hoing, and Captain Terry Livingston ("Livingston") of the Tennessee National Guard, were surveilling 139/155 Scott Street. During the surveillance, the officers observed one of the off-duty police officers, Smith, working security at the Scott addresses. This occurred after midnight on August 21, 1996. Martello testified that he informed Smith of their suspicions concerning drug activity in the area. Smith informed the officers that he was also guarding another Elkins property, 2896 Walnut Grove, and offered to admit them to that address. Smith led the officers to the Walnut Grove address, but Martello declined to enter. Smith reported no suspicious activity at Walnut Grove nor any other Elkins properties. The officers testified that this was the first time that 2896 Walnut Grove came to their attention in relation to their investigation of Elkins.9
At two points during the investigation, members of the Tennessee National Guard assisted the officers with the loan of a thermal imager and personnel. On August 6, 1999, Livingston and other personnel used the thermal imager at 139/155 Scott Street and 146 Neil Street. Livingston testified that it was possible that he obtained a heat indication but that they had to cease operations because they were apparently spotted by someone.
On the evening of August 20, 1996, the thermal imager was used by Hoing, Bell, and Livingston10 at 139/155 Scott Street and 146 Neil Street. A positive heat indication was received for 146 Neil Street. After Smith took Bell and Livingston to 2896 Walnut Grove, the thermal imager was used there, also. A police helicopter, also equipped with a thermal imager, flew over 2896 Walnut Grove and reported a positive heat signature.11
The building at 2896 Walnut Grove had razor-wire around part of the top of it and had a number of shiny aluminum vents or ducts on top of it. The officers testified that they observed light originating from inside the building reflecting from the ducts or vents. There was a light on top of the exterior of the building over the...
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U.S. v. Elkins
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