U.S. v. Jackson
| Decision Date | 20 March 2002 |
| Docket Number | No. 01-40035-01/02-SAC.,01-40035-01/02-SAC. |
| Citation | 199 F.Supp.2d 1081 |
| Parties | UNITED STATES of America, Plaintiff, v. Kevin Scott JACKSON, Darren Michael Jackson, Defendants. |
| Court | U.S. District Court — District of Kansas |
James A. Brown, Office of United States Attorney, Topeka, KS, for Plaintiff.
Melody J. Evans, Office of Federal Public Defender, Donald R. Hoffman, Jason P. Hoffman, Hoffman & Hoffman, Topeka, KS, Benjamin N. Casad, Casad & Strong Law Firm, Kansas City, KS, for Defendants.
Defendants Kevin Scott Jackson and Darren Michael Jackson have each been charged with five counts relating to the manufacture and possession of controlled substances. This case comes before the court on the following motions: Kevin Scott Jackson's motion to dismiss Count 5 (Dk.31), and Darren Michael Jackson's motion to suppress evidence (Dk.44). Each co-defendant has joined in the other defendant's motion, and has standing to do so.
On April 27, 2001, at approximately 9:07 p.m., the Shawnee County Sheriff's office was called by a citizen in the 6800 block of S.W. Windsong, complaining of a strong chemical odor he believed to be anhydrous ammonia in the area. Deputy Daniel Lotridge responded to 6801 Windsong, spoke to the complainant, and determined that the odor was anhydrous ammonia. Based upon his training and experience,1 Deputy Lotridge recognized the odor as anhydrous ammonia when he first smelled it, and knew that anhydrous ammonia is a substance commonly used as a leading component in the manufacture of methamphetamine. He could not immediately pinpoint the source of the odor, so radioed dispatch for additional units to assist him in that task.
Deputy Lotridge noticed a car in the driveway, and spoke to the driver, who identified herself as Mary Farr. A small child was in the back seat of the car. Deputy Lotridge stated that the driver seemed nervous and evasive, but she gave him her name and told him who lived in the adjacent residence. Deputy Lotridge did not notice that she demonstrated any physical symptoms of having been exposed to anhydrous ammonia. Soon thereafter, a male came out of the residence at 6803 Windsong, whom Mary Farr identified as her boyfriend, Darren Jackson. Darren Jackson got into the car and the three left.
Deputy Lotridge thereafter determined, by walking around the area, that the odor was coming from the adjacent residence at 6803 S.W. Windsong. The complainant stated that Darren and Kevin Jackson lived in that residence.
Deputies Rice, Lopez, and Peterson arrived thereafter. Through a kitchen window, Deputy Kiley Rice saw clear plastic tubing on the floor in the kitchen and two "bongs" in the kitchen area, and so informed Deputy Lotridge. The tubing was significant to Rice and Lotridge because they knew such tubing was commonly used in the filtration process in manufacturing methamphetamine. Deputy Lotridge testified that prior to going inside the residence, they saw four dogs they believed to be pit bulls inside.
Deputy Lotridge then knocked on the front door. Kevin Jackson opened the door, stepped out and quickly closed the door behind him. As he did so, Deputy Lotridge was hit by a "very strong smell" of anhydrous ammonia. Deputies stated that Kevin Jackson was very nervous, his voice was shaking and cracking, his hands were trembling, and that he was uncooperative and evasive in that he tried to avoid answering their questions. He was lucid and conversant, however. Deputy Lotridge testified that defendant did not demonstrate any ill effects from anhydrous ammonia when he talked with him. Deputy Rice testified that defendant Kevin Jackson may have cleared his throat a few times during their conversation, but showed no other adverse effects of exposure to any chemical.
Deputy Lotridge told defendant Jackson of the odor and of his suspicion that defendant was manufacturing methamphetamine inside the residence, and asked Kevin Jackson whether he had been using cleaning agents. Defendant replied that he had been cleaning with common cleaning agents such as "409." Deputy Lotridge was familiar with the smell of 409 and other household cleaning agents, did not believe the smell could have been from any such item, and believed that defendant was lying. The deputies could hear movement in the residence after Kevin Jackson answered the door, but did not know whether the noise was from the dogs or from other persons inside.
Deputy Lotridge then requested consent to search the residence. Defendant Kevin Jackson stated that the residence belonged to his brother, Darren, and his girlfriend, Mary Farr, but that he would not consent to a search. The deputy then asked whether anyone else was in the residence, and defendant replied that there was not. Deputies then contacted their supervisor, who instructed them to make sure there were no other persons in the residence for safety reasons, and to secure the residence until a search warrant could be obtained. Deputy Lotridge testified that anhydrous ammonia has a very detrimental long-term side effect to the lungs and possibly the eyes.
Deputies then entered the house without consent and without a warrant, observed an apparatus in the bathroom, which is where they believed most of the fumes were coming from, but stated that the odor burned their eyes and lungs so badly that they had to leave to get some fresh air within minutes of having entered. Deputies reentered the residence within the minute, completed their sweep of the residence, determined that no one was inside, then secured the perimeter of the house until a warrant was obtained. Kevin Jackson was placed in custody pending the issuance of a search warrant.
At approximately 11:13 p.m., Deputy John Schrock obtained a search warrant for the residence, which sought evidence relating to the offenses of methamphetamine possession, methamphetamine manufacture, and possession of drug paraphernalia, along with related records. Neither deputy Lotridge nor Deputy Rice participated in the search of the residence that night. The search, pursuant to the warrant, revealed a powder containing methamphetamine and pseudoephedrine, and other items commonly associated with the manufacture of methamphetamine.
Defendant contends that the statute upon which Count 5 is based is void for vagueness. Count 5 of the Indictment alleges that the defendants "did knowingly, willfully, and unlawfully, while manufacturing and attempting to manufacture a controlled substance, to-wit: methamphetamine, a Schedule II controlled substance, create a substantial risk of harm to human life, in violation of Title 18 United States Code, Section 858, and Title 18, United States Code, Section 2."2
Defendant alleges that the phrase "a substantial risk of harm to human life" is unconstitutionally vague, both facially and as applied. 21 U.S.C. § 858 provides:
Whoever, while manufacturing a controlled substance in violation of this subchapter, or attempting to do so, or transporting or causing to be transported materials, including chemicals, to do so, creates a substantial risk of harm to human life shall be fined in accordance with Title 18, or imprisoned not more than 10 years, or both.
The Tenth Circuit has recently held, in examining an allegation that another criminal statute was unconstitutionally vague:
"`[T]he void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" United States v. Corrow, 119 F.3d 796, 802 (10th Cir.1997) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). Village of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. 1186, 71 L.Ed.2d 362 (internal citations and quotations omitted); Corrow, 119 F.3d at 803.
United States v. Day, 223 F.3d 1225, 1228 (10th Cir.2000). In Day, the Tenth Circuit concluded that, as applied to Day, a statute was not unconstitutionally vague because evidence produced at trial demonstrated that Day had knowledge of the illegality of his activities, and thus could reasonably understand that his contemplated conduct was proscribed.
The government contends that defendants lack standing to challenge the statute on grounds of vagueness because the statute clearly applies to defendants' conduct. Some support for this proposition is found in Tenth Circuit cases which hold that where the evidence produced at trial demonstrates that a defendant is "one to whose conduct [the] statute clearly applies" that defendant cannot successfully challenge the statute for vagueness. See Day, 223 F.3d at 1228; United States v. El-Hajjaoui, 227 F.3d 1274, 1277 (10th Cir.2000); United States v. Saffo, 227 F.3d 1260, 1270 (10th Cir.2000), cert. denied, 532 U.S. 974, 121 S.Ct. 1608, 149 L.Ed.2d 473 (2001). Cases which the court has reviewed, however, have applied this rule based upon facts developed at trial, rather than in the context of examining pretrial motions where the facts are not fully developed. To apply this rule here would appear to be putting the cart before the horse. The government's argument that defendants lack standing is unpersuasive, and the merits of defendants' challenge will therefore be considered.
Defendant has the burden to show that the statute is unconstitutionally vague, as applied to him. See Day, 223 F.3d at 1228.
Defendant alleges that the statute is vague in failing to define, standardize, or identify four factors: risk, harm, persons and scienter. Specifically, defendant alleges that the...
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