U.S. v. Gahagan, Nos. 87-1991

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before ENGEL, Chief Circuit Judge, MILBURN, Circuit Judge and DOWD; DOWD
• Citation: 865 F.2d 1490
• Docket Number: Nos. 87-1991
• Decision Date: 03 March 1989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Scott GAHAGAN (87-1991), Michael John Gahagan (87-1993), Susan Soper (87-1992), Defendants-Appellants. to 87-1993.

Page 1490

865 F.2d 1490 UNITED STATES of America, Plaintiff-Appellee,
v.
Daniel Scott GAHAGAN (87-1991), Michael John Gahagan
(87-1993), Susan Soper (87-1992), Defendants-Appellants. Nos. 87-1991 to 87-1993. United States Court of Appeals,
Sixth Circuit. Argued and Submitted Aug. 5, 1988.
Decided Jan. 25, 1989.
Rehearing Denied March 3, 1989.

Page 1491

Norman R. Mueller, Saskia A. Jordan (argued), Denver, Colo., for Daniel Scott Gahagan.

Janet Parker (argued), Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.

Jeffrey W. Van Treese, Hoffman, Hoffman & Van Treese, Charlevoix, Mich., for Susan Soper.

Gregory G. Justis, Petoskey, Mich., for Michael John Gahagan.

Before ENGEL, Chief Circuit Judge, MILBURN, Circuit Judge and DOWD, District Judge. ^*

DOWD, District Judge.

I. INTRODUCTION.

Defendants-appellants Daniel Gahagan and Michael Gahagan appeal from the judgment of the district court entered pursuant to Rule 11(a)(2) plea agreements with the government wherein the Gahagans pleaded guilty to the charge of possessing with intent to distribute approximately 311 grams of hashish. Defendant-appellant Susan Soper appeals from the judgment of the district court entered pursuant to a Rule 11(a)(2) plea of guilty to a superseding information in which she was charged with conspiracy to possess marijuana. Simply stated, this appeal raises complicated search and seizure issues. Specifically, the two primary issues are whether the search warrant complied with the particularity requirement of the fourth amendment, and in the alternative, whether the scope of the warrant was exceeded in its execution.

II. PROCEDURAL BACKGROUND.

On May 21, 1987 an indictment was returned against Daniel Gahagan, his brother Michael Gahagan, and Susan Soper. A superseding indictment against the same three individuals was returned on July 29, 1987. The three were charged with conspiracy to possess with the intent to distribute and to distribute marijuana and hashish in count one of the indictment. Daniel Gahagan and Michael Gahagan were also charged in count five with distributing approximately 141 grams of hashish, in count six with possession with the intent to distribute approximately 840 grams of marijuana, and in count seven with possession with the intent to distribute approximately 311 grams of hashish. Michael Gahagan, in addition to being charged in the conspiracy charge in count one, and counts five, six and seven, was charged in count two with distributing approximately 108 grams of marijuana, and count three with distributing approximately eighty-five grams of marijuana, and count four with distributing approximately 110 grams of marijuana.

The Gahagans filed a motion to suppress the evidence and a motion in limine on June 25, 1987. A second motion in limine was also filed on July 13, 1987. The appellant Soper joined in the motions and also filed a motion to sever. The district court heard testimony and oral arguments on the motions on July 29 and July 30, 1987. The district court denied the motion to suppress the evidence and granted in part and denied in part the motions in limine. After denying the motion to suppress, the district court acknowledged the closeness of the issues and suggested the possibility of a

Page 1492

conditional plea. Joint Appendix ("J.A.") at 386-87.

Subsequent to the court's rulings, the three defendants entered guilty pleas while reserving their rights for appeal pursuant to Rule 11(a)(2), Fed.R.Cr.P.J.A. at 89-98, 103. The Gahagans pled guilty to count seven of the indictment and each was sentenced to a two-year term of imprisonment, followed by a two-year special parole term. Susan Soper entered a plea of guilty to a superseding information and was sentenced to a sixty-day term of imprisonment. A timely notice of appeal was filed on behalf of the three defendants.

III. THE SEARCH.

Prior to the search in September of 1986, the defendants were under an investigation initiated by Jerry Boerema, an investigator for Otsego County Prosecutor's Office, for a period of approximately nine months. During that period, an informant allegedly made three separate purchases of illegal narcotics under Boerema's supervision ("controlled buys") at a Gahagan residence in January, February, and March of 1986. In September of 1986 and shortly before the search of the Gahagan residence, Boerema contacted the Drug Enforcement and Administration ("DEA") office in Saginaw, Michigan and requested assistance from the DEA. Michael Vetter, a DEA agent, was assigned to the case.

On September 12, 1986, the same informant who had made the three previous control buys made a fourth controlled buy from the Gahagans. Thereafter, Agent Vetter sought a federal search warrant from Judge William Porter, a circuit court judge in the State of Michigan. Judge Porter issued the warrant based upon the affidavit of Michael Vetter, which was based upon Jerry Boerema's nine month investigation.

The warrant itself listed the premises to be searched as "7609 Douglas Lake Road, Johannesburg, Michigan." J.A. at 64. Vetter's affidavit described the premises for which the warrant was sought as

7609 Douglas Lake Road, Charleton Township, Otsego County, Johannesburg, Michigan, three story wood frame house with natural wood siding with an unattached four-car garage with natural color siding. Also located on the property is a single story wood frame log cabin-type structure painted dark brown in color. Also located on the property is a small wood frame shed-type building with a metal roof.

J.A. at 65. Vetter's affidavit incorporated a second affidavit, a multipage document, which set out in detail the investigation, the controlled buys, and facts upon which the officers believed established probable cause. ¹

Page 1493

The search warrant was executed on that same day, i.e., September 12, 1986. Vetter conducted a pre search briefing session for those officers who participated in the search and provided them a description of the premises to be searched. J.A. at 160-62, Tr. at 70-72. Boerema also assisted Vetter in the pre search briefing session and described the places to be searched. J.A. at 256-62; Tr. at 193-99. Vetter and Boerema instructed the officers that the place to be searched was Cabin # 3 and House B as they later became known.

The search led to the discovery of approximately 840 grams of marijuana and 311 grams of hashish. The search resulted in the discovery of $4000 in U.S. currency, including $700 in marked bills from the controlled buy which had been made earlier on September 12, 1986. Other items discovered as a result of the search included cocaine paraphernalia, a hand scale, a black and brown ledger book, a "dial-a-gram" scale, a forty-five pound capacity triple beam scale, and two calculators. A number of weapons also were discovered, including a loaded .22 caliber semi-automatic pistol, a loaded .44 caliber magnum revolver, a loaded .357 caliber six shot revolver, a loaded .20 gauge pump shotgun, and a .22 caliber six shot revolver. The bulk of the narcotics discovered were found in Cabin # 3 and the remaining narcotics and other items were found generally in House B. J.A. at 73-85.

The motion to suppress the evidence was based upon the claim that the warrant failed to particularly describe the place to be searched. Specifically, the appellants asserted that the address of "7609 Douglas Lake Road" alone, was insufficient to include Cabin # 3. ² The appellants maintained that Cabin # 3 is a separate residence with its own address of 7577 Douglas Lake Road. The appellants did not raise the claim that the probable cause determination by the state court judge was deficient, but instead focused their arguments on the particularity requirement, and in the alternative, the argument that assuming the warrant was valid, the officers exceeded the scope of the warrant in their search.

The circumstances surrounding the search are complicated by the nature of the location searched and require a detailed explanation. A better understanding of the circumstances and facts surrounding the search may be gained by a reference to Appendix I. ³

The district court conducted a two-day evidentiary hearing on the motions. During the hearing, a detailed description of the physical lay-out of the area searched was developed. The general area at issue in this case is a rural, large piece of property with multiple dwellings and structures. It was developed at the hearing, that there were four separate dwellings located in the general area.

With reference to Appendix I, the dwelling identified as "Cabin 3" was the principal residence of the defendant Daniel Gahagan

Page 1494

at the time of the search. ⁴ Cabin # 3's address is 7577 Douglas Lake Road. Cabin # 3 is a single story wood, cabin-type home. The defendants Michael Gahagan and Susan Soper resided in "House B." The address for House B is 7609 Douglas Lake Road. House B is a multi-story wood frame house with an unattached garage that was partially completed and under construction since 1981. Daniel Gahagan was a co-owner of House B. When the search warrant was executed, the three appellants were found in Cabin # 3.

A cabin identified as # 2 and the house identified as # 4 were not owned or occupied by any of the appellants at the time of the search. However, prior to May of 1986, Daniel Gahagan owned House # 4 and it was in this house that the first three controlled buys took place. In May of 1986 he sold the property to a third party. House # 4 is a multi-story wood frame house with a two-car unattached garage. The address for House # 4 is 7539 Douglas Lake Road. Cabin # 2 is a single story wood, cabin-type house located approximately one hundred yards north of House # 4.

Driveway # 1 was identified as a driveway that serviced House B, 7609 Douglas Lake Road. There was a dispute over whether Driveway # 1 extended through the foliage to Cabin # 3. The Gahagans claim...