U.S. v. Hammond

• Citation: 351 F.3d 765
• Decision Date: 15 December 2003
• Docket Number: No. 01-5358.,01-5358.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton Glen HAMMOND, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

351 F.3d 765

UNITED STATES of America, Plaintiff-Appellee, v. Clifton Glen HAMMOND, Defendant-Appellant.

No. 01-5358.

United States Court of Appeals, Sixth Circuit.

Argued December: 4, 2002.

Decided and Filed: December 15, 2003. Pursuant to Sixth Circuit Rule 206.

COPYRIGHT MATERIAL OMITTED

ARGUED: Warren N. Scoville, WARREN N. SCOVILLE & ASSOCIATES, London, Kentucky, for Appellant.

Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.

ON BRIEF: Warren N. Scoville, WARREN N. SCOVILLE & ASSOCIATES, London, Kentucky, for Appellant.

Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.

Before: BOGGS, Chief Judge; and GUY and NELSON, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Clifton Glen Hammond was named in a seven-count superseding indictment issued in September 1999 on the basis of evidence seized from his property pursuant to two search warrants. Hammond was charged in Counts One through Seven respectively with manufacturing more than fifty marijuana plants, in violation of 21 U.S.C. § 841(a)(1), possessing numerous firearms "during and in relation to a drug trafficking crime," in violation of 18 U.S.C. § 924(c)(1), possessing with the intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), possessing a machine gun "during and in relation to a drug trafficking crime," in violation of 18 U.S.C. § 924(c)(1), possessing a machine gun, in violation of 18 U.S.C. § 922(o), possessing a "sawed-off shotgun," in violation of 26 U.S.C. § 5861(d), and possessing an unregistered destructive device, in violation of 26 U.S.C. § 5861(d).

Following his indictment, Hammond entered a plea of not guilty and subsequently filed a motion to suppress evidence and a motion to dismiss the charges against him that alleged he possessed firearms "during and in relation to" his crime of drug trafficking, pursuant to 18 U.S.C. § 924(c)(1). After a hearing on the motion to suppress, Hammond further moved the district court for a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that a hearing is required when a defendant makes a substantial preliminary showing that a false statement necessary to the finding of probable cause was made knowingly and intentionally, or with reckless disregard for the truth, and was included by an affiant in a search warrant affidavit). The court granted the Franks hearing, but ultimately denied Hammond's motions to suppress and dismiss. Hammond, therefore pled guilty to Counts Two, Three, Six, and Seven under a conditional plea agreement, while reserving his right to appeal the adverse determinations of his motions to suppress and to dismiss. On the government's motion, the remaining counts were dismissed, and Hammond was sentenced to thirty-seven months on Count 2, to be served consecutively to the sentences imposed on Counts Three, Six, and Seven, for a total of ninety-seven months. Hammond now appeals the district court's denial of his two motions to suppress and dismiss. Because there was no probable cause for the first search warrant and because the good faith rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply here, we reverse the district court's denial of Hammond's motion to suppress.

I

On August 6, 1999, Detective Tim Engle filled out an application for a warrant to search Hammond's property, including all buildings, vehicles, and persons present on the property at the time of the search. Probable cause for the warrant was substantiated by Detective Engle's affidavit, which was attached to the application. In the affidavit, detective Engle stated that:

During the first week of April 1999, [Deputy] Danny Keeney received information from Jeremy Holt stating that he had attempted to steal marijuana from an indoor grow operation belonging to Glenn Hammonds [sic] in Rockcastle Co. on KY-1955. Holt stated that he was shot at and that he got away, but that they were looking for him. Holt stated that the residence was located off KY-1955 beside Morning View Church and that the Location had a gate across the driveway which lead [sic] to a barn/garage style building. Holt stated that the operation was inside a side room of the building. On 4-20-99 Det. Tim Engle conducted a drive-by recon of the location and verified the complaint. Since this time we have determined that Hammond does occupy this location. Since this time Rockcastle Co. Sheriff's office has received numerous complaints on this residence and subject stating that the operation was there, confirming the complaint from Holt.

As it turned out, several of the statements made by Detective Engle in the above quoted portion of his affidavit were false. First, Holt did not state that the operation was "inside a side room of the building," nor did he mention an "indoor grow operation," although he did refer to Hammond's garage. Second, although Detective Engle's statement implies that he drove by Hammond's property as a result of the complaint made by Holt, and in so doing verified the information supplied by Holt, that was not the case. Detective Engle admits that he did not find out about Holt's complaint until August 5 or 6, when he filled out the application for the warrant and instead drove by Hammond's property at an earlier date, on the basis of "numerous," unspecified, and anonymous complaints received by the police, complaining about the "Hammonds raising marijuana up on Red Hill." The dispatcher admitted that the brother of Glen Hammond lived on Red Hill, and professed ignorance of how many other Hammond households may exist on Red Hill in Rockcastle County. Third, Engle testified at the evidentiary hearing that all he was able to verify by driving by Hammond's property was the fact that a driveway existed off the main road at the entrance to Hammond's property with a gate across it.

Detective Engle's affidavit, however, did not end there. Engle went on to explain that he had conducted the following independent investigation in order to verify the information he had obtained on Hammond's alleged growing operation:

In addition to confirming the complaints, on 8-5-99 I subpoenaed the power records of Glenn Hammonds [sic]. These records indicate a trailer on the property which is using 400 to 700 kilowatts of power. However there is no trailer on the property. The other power record # 02-1235-48-001 shows power usage that is consistent with a dwelling. However during the observation of the location no windows were observed in the building in question. This along with a security gate, satellite dish, and no trespassing signs tells me that this subject is security conscious which is consistent with other marijuana growers. On 8-5-99 at approx. 0230 hrs. I conducted an Aerial Thermal Image of the location in question that is consistent with other indoor grow operations investigated by this officer.

Again, there were several inaccuracies in Detective Engle's statement. First, although Engle stated that there was no trailer, there is a trailer located at the back of the property. Second, as stipulated to by the government, the power usage records were not for the buildings they were attributed to in the affidavit. The record that was claimed to be for a trailer, was actually the power usage record of the building within which the marijuana was subsequently found. The other power usage record, which was "consistent with a dwelling," was for Hammond's residence and not for the building identified by Engle as having no windows. Third, the building that Engle claimed had no windows does in fact have windows, although it is unclear from the photograph in the record whether the only windows it has are dormer windows. The government has agreed that the power usage records were incorrectly referred to in the affidavit. Fourth, the "security gate" did not have security features of any kind, as the district court found. Finally, the government has stipulated that the thermal imaging can not be considered, in accordance with the recent Supreme Court decision of Kyllo v. United States, 533 U.S. 27, 34-35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), which held that thermal imaging used to measure the heat emanating from a home constitutes a search, requiring a warrant.¹

A state judge, on the basis of the information contained in Detective Engle's affidavit, issued the requested search warrant. On August 6, 1999, Detective Engle, along with approximately thirteen other officers, executed the warrant. During the search, a vehicle drove across Hammond's property, in order to get to an adjoining plot. Several officers followed the vehicle, which was driven by Bill Ponder, the son of the adjoining property owner. Bill Ponder was approached by law enforcement officers on the scene and consented to their searching his vehicle, person, and trailer. The officers discovered marijuana in the trailer.

While following Ponder across Hammond's property, the officers passed a roadway that led to a building, which had not been previously identified by the officers conducting the search, and which was not included in the warrant under which they were operating. Ponder told the officers that the building was the residence of Glen and Judy Hammond. Late in the evening of that same day, Detective Moore sought and obtained a search warrant for this building.

During the search of the property, the officers discovered marijuana growing inside a barn-like building, along with sixteen firearms and ammunition, a disassembled sawed-off shotgun, and four electric blasting caps. Outside the building, the officers found more marijuana and another firearm, alleged to be a machine gun. On the Ponder property, the officers discovered marijuana in a trailer that was titled to Hammond.

Hammond was not present during the execution of either search warrant, and on August 10,...