U.S. v. Holmes, No. CR. 01-48-P-C.

• Citation: 175 F.Supp.2d 62
• Decision Date: 11 December 2001
• Docket Number: No. CR. 01-48-P-C.
• Parties: UNITED STATES of America, v. Eric HOLMES, Defendant.
• Court: U.S. District Court — District of Maine

175 F.Supp.2d 62

UNITED STATES of America, v. Eric HOLMES, Defendant.

No. CR. 01-48-P-C.

United States District Court, D. Maine.

December 11, 2001.

COPYRIGHT MATERIAL OMITTED

Leonard I. Sharon, Sharon, Leary & Detroy, Auburn, ME, for Eric Holmes.

Jonathan R. Chapman, Office of the U.S. Attorney, Portland, ME, for U.S.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

GENE CARTER, District Judge.

The Court now has before it Defendant's Motion to Suppress, in which he seeks suppression of all evidence seized from his residence and any evidence derived from the search of his residence on April 12, 2001. Docket No. 15 (Motion to Dismiss), Docket No. 16 (Memorandum in Support of Motion to Dismiss), Docket No. 27 (Post-Hearing Brief in Support of Motion to Dismiss), Docket No. 29 (Reply Brief in Support of Motion to Suppress Evidence). Specifically, Defendant argues that the use of information illegally obtained by a thermal imaging scan to procure the search warrant renders the search based on that warrant invalid. After redacting the information obtained from the thermal imaging device, Defendant further contends that the warrant application did not establish probable cause. Defendant also argues that the search warrant was unconstitutionally executed in violation of Fourth Amendment "knock and announce" requirements. The Government opposes the motion, arguing that even without the thermal imaging data, the warrant application contained sufficient evidence for the judge to have found probable cause. Alternatively, the Government argues that the use of a thermal imaging device was a good-faith exception to the exclusionary rule. With respect to Defendant's execution argument, the Government contends that the warrant was constitutionally executed because the officers' failure to wait longer than a few seconds before entering the premises was "reasonable" under the circumstances. See Government's Post-Hearing Brief at 1.

I. FACTS

Special Agent Thomas Slivinski of the Maine Drug Enforcement Agency (MDEA) submitted an Affidavit and Request for a Search Warrant on April 12, 2001, containing the following information. A cooperating defendant in a marijuana trafficking case ("CD # 1") provided information to Maine Drug Enforcement Agent Gerry Baril pertaining to the indoor cultivation of marijuana at 60 Academy Street in Auburn, Maine by an individual named Eric Holmes. CD # 1 reported personal conversations during December 2000 with an unidentified individual ("UI # 1") who claimed to have obtained marijuana from, and smoked marijuana with, Eric Holmes at his residence at 60 Academy Street. CD # 1 also relayed information obtained from another unidentified individual, a so-called mutual friend of CD # 1 and Eric Holmes ("Friend"), who claimed to have been at the Holmes residence in December 2000 and to have witnessed a large grow operation. Both UI # 1 and Friend allegedly told CD # 1 that Holmes was cultivating and selling marijuana from his single-family residence where he lived with his wife Carol Holmes, who was not allegedly involved in the cultivation activity inside the residence. Friend allegedly told CD # 1 that Eric Holmes was using several high-intensity discharge grow lights, which were mounted on motorized tracks for automated movement over the marijuana plants that they were illuminating, and carbon dioxide gas to enrich the grow room environment for better plant growth. On or about January 4 or 5, 2001, CD # 1 reported that CD # 1 and Friend drove together to Eric Holmes' residence in Auburn, and CD # 1 watched Friend enter a blue, single-family residence across from 61 Academy Street (later identified as 60 Academy Street) for a brief stay. Friend allegedly returned and told CD # 1 that Holmes had just harvested a crop of indoor-grown marijuana plants at his home some time during December 2000 and had several big bags of processed marijuana stored in the house. Agent Baril determined that Eric Holmes lived at that address with his wife, Carol Holmes, and that Eric Holmes was a felon, who had been convicted and sentenced in 1989 to ninety days in jail and five years probation for possession of narcotics, and convicted in 1988 and sentenced to three years probation for strong-arm robbery. An investigation was then commenced by the MDEA. Attempted trash pulls¹ were unsuccessful. Special Agent Kate Bernard of the United States Drug Enforcement Agency ("DEA") subpoenaed power records for periods of time between December 1998 and March 2001, which were analyzed by Special Agent Tony L. Milligan of the MDEA.

Agent Milligan also submitted an affidavit on April 12, 2001, containing the following information. After viewing the residence at 60 Academy Street, Agent Milligan could not determine the source of heating. Agent Milligan analyzed power consumption records from December 1998 to March 2001 for 60 Academy Street and found the average consumption rate to be 1,906 kilowatt hours (kWh) per month, or 63 kWh per day, which is more than twice the national average. He found the lowest monthly consumption to be 725 kWh, recorded in April 1999, and the highest to be 2,638 kWh, recorded in February 2001. He noted what he called "distinct cycles" during the highest power consumption peaks, including that the consumption was high but relatively uniform from December 1998 to February 2000; however, in March 2000, the consumption doubled from 40 kWh per day to 81 kWh per day. In his affidavit, Agent Milligan described a typical grow cycle for indoor marijuana, which is three months, and attached power consumption charts. The affiant claims that four such cycles occurred from March 2000 to May 2000, July 2000 to October 2000, November 2000 to January 2001, and February 2001 to April 2001.

On April 10, 2001, Agents Milligan and Slivinski conducted a thermal imaging scan of the Holmes residence at 60 Academy Street in reliance on United States v. Woodward, 154 F.Supp.2d 83 (D.Me.2001). Agent Milligan found the results of the scan to show evidence of a marijuana grow operation.² While conducting the scan, Agent Milligan noted in his affidavit that he also observed a "super-bright" light emitting from a second-floor window through a one — to two-inch gap, although the light source could not be identified because the shade was pulled nearly all the way down. Gov't Ex. C at 9.

On April 12, 2001, Judge Paul Cote of the Maine District Court issued a search warrant that authorized law enforcement officers to search the premises at 60 Academy Street (the home of defendant Eric Holmes) in Auburn, Maine and to seize evidence relating to a suspected marijuana grow operation. The warrant required that the executing agents provide "notice of their purpose and office" (otherwise known as a "knock and announce" warrant), which the Government concedes requires the agents to provide "pre-entry notice" before entering the premises. See Government's Objection to Defendant's Motion to Suppress and Incorporated Memorandum at 1, n. 1.

Officer Dan LaChance was in charge of effecting the execution of the warrant. Agents gathered on the day of the search for a preraid tactical briefing, where they were alerted by Officer LaChance that the warrant required them to knock and announce before entering. Tr. at 23. Agents arrived at Defendant's residence to execute the warrant at approximately 2:40 p.m. on April 12. The officers, including Officer LaChance and Agent Slivinski, were unfamiliar with how people customarily gained entrance into the residence. Tr. at 24, 33. They first approached a door on the side of the building that they "realized... was not the door that probably [the occupants] used to get inside the residence." Tr. at 12. Two agents nevertheless remained at that door. Id. The remaining seven agents moved to the door at the front of the house, which they determined would be the appropriate point of entry. See Tr. at 12-13, Gov't. Ex. 1. At that entrance, the storm door was resting in the open position but the inner door was closed. Tr. at 13, Gov't Ex. 1. LaChance testified, "I was knocking on the door, I waited a couple of seconds ... and at the same time someone told me they believed it was an entry way with a shed."³ Tr. at 13. After waiting "three seconds, three to five seconds," LaChance testified, "I tried the door, it wasn't locked, so I opened the door" and entered "thinking there would be another door inside the house." Tr. at 15. It was then that the agents first announced their identity and purpose; Officer LaChance testified, "[a]s soon as I walked in and saw the door and realized I'm pretty much straight shot into the house, I yelled `Police! Search warrant.'" Tr. at 26. LaChance was immediately followed by others who, with weapons drawn, ran in through the kitchen area and into the living room, where they saw Defendant's father seated in a chair, watching television. Tr. at 18, 27. The police handcuffed Defendant's father and proceeded to conduct the search of the residence. Tr. at 17, 19.

The agents searched the house and found a total of 164 marijuana plants, a firearm, and various items of physical evidence believed by the agents to be associated with marijuana cultivation. During the search, Eric Holmes arrived at his residence. Tr. at 20. Much of the substantive physical evidence was found in a second-floor room. Tr. at 19. Then the agents came upon a bolted door to the basement, and Officer LaChance asked Eric Holmes for a key. Tr. at 20-21. Because he could not provide one, the agents used a ram to break down the internal door and found what they believed to be another "grow room" in the basement. Tr. at 21. Holmes was arrested at the scene.

II. DISCUSSION

A. Search Warrant: Probable Cause

The Fourth Amendment protects an individual's reasonable expectation of privacy against intrusion by the government. The test for determination of a reasonable expectation of privacy is...