U.S. v. Kirk

• Decision Date: 10 February 1986
• Docket Number: No. 85-3107,85-3107
• Citation: 781 F.2d 1498
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David KIRK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1498

781 F.2d 1498

UNITED STATES of America, Plaintiff-Appellant, v. David KIRK, Defendant-Appellee.

No. 85-3107.

United States Court of Appeals, Eleventh Circuit.

Feb. 10, 1986.

Garry Stegeland, Asst. U.S. Atty., Orlando, Fla., Mervyn Hamburg, Washington, D.C., for plaintiff-appellant.

H.S. Henderson, III, Titusville, Fla., Richard Essen, Miami, Fla., Ron Dion, North Miami Beach, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

HATCHETT, Circuit Judge:

In this appeal, the government challenges the district court's finding that law enforcement officers prepared an affidavit submitted in support of an application for a warrant to search a residence with reckless disregard for the truth. We reverse.

FACTS

On October 31, 1984, an unidentified male telephoned the Orlando, Florida, office of the Drug Enforcement Administration (DEA). The caller informed Special DEA Agent Russ Wise that within the next two weeks, Marianne Gray would depart from Orlando on an early morning American Airlines flight for Hawaii, carrying two kilograms of cocaine concealed on her person. The caller added that Gray had made numerous such trips in the recent past and that the source of her cocaine supply was located "in the Melbourne area" of Florida.

Wise relayed this information to DEA Task Force Agent Edward Porro, who is Further investigation revealed that Gray was a guest at an Orlando hotel near Disney World. Toll telephone records for the address which Gray listed on her hotel registration indicated that several telephone calls had been placed from that address to a telephone number listed in David Kirk's name at 1413 Atlantic Street, Melbourne Beach, Florida.

assigned to the DEA office at Orlando International Airport. Porro's investigation revealed that Marianne Gray was scheduled to depart Orlando for Hawaii on an American Airlines flight on November 4, 1984.

On November 3, 1984, Porro and DEA Agent Michael L. Wong followed Gray, in separate automobiles, from Orlando International Airport, where she dropped off a male companion, to Melbourne. After stopping at a shopping center, she then proceeded to 1413 Atlantic Street. Gray entered the residence, stayed for approximately thirty minutes, and then left in the company of two unidentified males. They did not drive Gray's automobile, but left in a dark colored rental car.

Porro and Wong followed Gray and the two males to a nearby hotel, but lost sight of them after they entered the hotel. DEA Agents John Wallace and Alan Lively, also assigned to the DEA office at Orlando International Airport, met Porro and Wong at the hotel. After a short time, Wallace located Gray and the two males in a hotel lounge. Wallace and Lively entered the lounge to resume surveillance; Porro and Wong positioned themselves across the street from the hotel.

Four other individuals joined Gray and the two males. The group then moved to another lounge within the hotel. To avoid compromising the surveillance, Wallace and Lively decided not to follow the group to the second lounge.

When Gray and her companions left the hotel, the agents followed them to a nearby restaurant, but did not enter.

After dinner, Gray and her companions drove to 1413 Atlantic Street. Gray remained inside for approximately thirty minutes before leaving in her automobile. Agents Porro, Wallace, and Lively followed her back to Orlando.

The license plate on the dark colored automobile in which Gray and the two unidentified males had traveled indicated that the automobile was rented. Consequently, Wong remained in Melbourne to determine the name of the person who had rented the automobile. His investigation revealed that Darwin Schmidt had rented the car and that David Kirk had signed the rental contract as an additional driver.

On November 4, 1984, Wong and Porro approached Gray at Orlando International Airport as she waited for her flight to depart. Gray consented to a search of her person, which revealed she was carrying a pound of cocaine. In the search incident to Gray's arrest, several used airlines tickets were found indicating Gray's recent travel to Hawaii.

In a subsequent interview conducted in the presence of Gray's counsel, Porro sought to have Gray identify driver's license photographs of Schmidt and Gregory Lake. Wallace and Lively saw the photographs of Schmidt and Lake and identified them as the two males who had been with Gray the night before. Gray, however, denied knowing Schmidt and indicated only that Lake might "possibly [be] involved." Also during this latter interview, Gray acknowledged that she was in possession of the cocaine during her drive "back from Brevard County to Orlando."

Based upon this information, Wong prepared an affidavit and submitted it to a state judge in application for a warrant to search the premises at 1413 Atlantic Street. The affidavit is attached as an appendix.

Relying upon the affidavit, the judge issued a search warrant for the 1413 Atlantic Street premises. Law enforcement officers executed the warrant on the evening of November 4, 1984, while the residence was unoccupied, and seized a small quantity of cocaine.

Later that evening, Kirk and Jeff Hembree, who had been under surveillance, were stopped in the rental car which had The officer then arrested Kirk and charged him with possession of the .25 grams of cocaine seized from his home. The officer also prepared an affidavit in application for a warrant to search the briefcase. Relying upon this second affidavit, which was essentially an updated version of the premises affidavit, a federal magistrate issued a search warrant for the briefcase. The briefcase contained $29,641 in cash and a trace of cocaine, undetectable to the naked eye.

been used the previous evening. Kirk consented to a search of the vehicle. The agents found a briefcase in the trunk of the car, but Kirk refused the agents' request to open the briefcase. A police dog trained in ferreting out illegal drugs gave a positive indication that drugs were in the briefcase.

PROCEDURAL HISTORY

On November 20, 1984, a grand jury returned a five-count indictment against Kirk charging him with conspiracy to possess cocaine with intent to distribute (Count I), possession of cocaine with intent to distribute (Counts II, III, and IV), and simple possession of cocaine (Count V). After a four-day trial, the jury returned a verdict of not guilty as to Counts II and III; the court declared a mistrial as to Counts I, IV, and V.

Prior to trial, Kirk moved the district court to quash both the premises and briefcase warrants and to suppress the evidence seized as a result of the searches. ¹ The district court denied the motion. On the retrial which results in this appeal, before a different judge, Kirk renewed his motion to quash the search warrants and to suppress the evidence.

On February 14, 1985, the district court issued a memorandum opinion in which it concluded that the premises affidavit was prepared in reckless disregard for the truth; consequently, it granted Kirk's motion to suppress the evidence seized from the residence. Kirk had contended that if the search of his residence was invalidated and the evidence seized pursuant to the search suppressed, then no probable cause existed for his arrest and the search and seizure of his briefcase. The district court concluded, however, that the trained police dog's indication of the presence of narcotics in Kirk's briefcase was "sufficiently distinguishable" from the allegedly illegal arrest to justify a finding of probable cause to search the briefcase. Consequently, the district court denied Kirk's motion to suppress the cash seized from his briefcase. ²

CONTENTIONS OF THE PARTIES

The government contends that no issue exists as to whether the misstatements included within the affidavit were made deliberately. The government focuses upon the fact that Wallace and Lively misidentified Kirk and Hembree as known drug traffickers Schmidt and Lake, and argues that the issue is whether the misidentification was made in reckless disregard for the truth. ³ It contends that the misidentification was merely negligent rather than reckless and that, even assuming that the misidentification was reckless, the affidavit in redacted form contains sufficient evidence of probable cause.

In urging us to affirm the district court's suppression of the evidence, Kirk contends that we need not reach the issue of whether Wallace and Lively's misidentification of the two male suspects was made in reckless disregard for the truth. Rather, Kirk points to the numerous statements throughout the affidavit which Wong either expressly or impliedly misrepresented to be based upon his personal knowledge. Once the allegedly deliberate misstatements

are eliminated, Kirk maintains that the nexus as to time and place is so lacking as to be insufficient to justify a finding of probable cause.

ISSUE

The sole issue on appeal is the validity of the affidavit submitted in support of the warrant for the search of the Kirk residence. We must determine: (1) whether the misstatements included in the affidavit were made deliberately or in reckless disregard for the truth; and if they were, (2) whether in the absence of the misstatements, the affidavit is sufficient to show probable cause to search the Kirk residene.

DISCUSSION

The analytic framework within which we must address the propriety of a motion to suppress consists of two distinct inquiries. Initially, we must determine whether the movant's fourth amendment rights were violated. Only if we conclude that the movant's rights were violated do we reach the second issue: whether exclusion of the evidence seized is an appropriate sanction. United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 3413, 82 L.Ed.2d 677, 688 (1984); Illinois v. Gates, 462...