U.S. v. Koons

• Decision Date: 29 August 2002
• Docket Number: No. 01-3177.,01-3177.
• Citation: 300 F.3d 985
• Parties: UNITED STATES of America, Appellee, v. Timothy Donald KOONS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

300 F.3d 985

UNITED STATES of America, Appellee, v. Timothy Donald KOONS, Appellant.

No. 01-3177.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2002.

Filed: August 29, 2002.

COPYRIGHT MATERIAL OMITTED

Clemens A. Erdahl, argued, Iowa City, IA, for appellant.

Robert L. Teig, argued, Cedar Rapids, IA (Kevin C. Fletcher, on the brief), for appellee.

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

MURPHY, Circuit Judge.

Timothy Donald Koons pled guilty to possession of methamphetamine with intent to distribute within 1,000 feet of a public playground, in violation of 21 U.S.C. §§ 841(a) and 860(a), and to criminal forfeiture of property related to drug trafficking, under 21 U.S.C. § 853. On his appeal Koons challenges the constitutionality of 21 U.S.C. § 860(a) and argues that the district court¹ erred by denying his motion to suppress and by not granting him a safety valve reduction or downward departure at sentencing. We affirm.

The attorney for Emmet County, Iowa received a tip on June 28, 2000 from Albert Bahr that Koons was dealing in illegal drugs. At that time Koons was living in the town of Estherville within 1,000 feet of Mickelson Park, which the parties stipulated is a public park containing at least three separate apparatus intended for the recreation of children. See 21 U.S.C. § 860(e). The county attorney passed on the tip to the Estherville police chief, who turned the investigation over to Officer Paul Budach. Budach happened to be a cousin of Koons, and he was informed that Albert Bahr was the source of the tip and knew that he was the father of Cindy Bahr, the girlfriend of Koons.²

Budach sought to corroborate the tip and did a record search on Koons which showed that he had been convicted of marijuana possession in 1986. Budach subsequently took two trash bags from the curb outside Koons' residence and searched them. In one bag he discovered mail addressed to Koons, several scorched "foilies" which are used to smoke methamphetamine, and numerous plant stems that appeared to be marijuana. Budach performed a field test on one of these stems, using a narcotics identification kit or NIK test. That test is designed to indicate the probable presence of narcotics, and the stem tested positive for tetrahydrocannabinol (THC), a chemical found in marijuana and hashish.³

Budach then prepared an application for a search warrant and a supporting affidavit. The affidavit stated that Budach had conducted an inspection of Koons' trash in response to a tip received by the county attorney that Koons was "dealing illegal drugs." The affidavit further stated that the trash inspection had yielded "numerous marijuana stems" which had "tested positive for THC content" in a NIK test. The application requested authorization to search Koons' residence, the outbuildings on his property, his 1996 Blazer, and his person for "illegal drugs, drug paraphernalia, cash money, and drug transaction records." Budach did not mention in the affidavit that the trash had also contained scorched foilies suggestive of methamphetamine use, that Koons had been convicted of marijuana possession in 1986, that he was a cousin of Koons, or that the tip had come from Cindy Bahr's father.

A state magistrate reviewed the application and affidavit and issued a search warrant. Budach testified at the suppression hearing that the magistrate asked him if he affirmed the truth of everything in the affidavit but did not ask any other questions. Budach also testified that he did not intentionally omit any relevant information from the affidavit or include any untrue information in it.

Budach and Officer Greg Van Langen waited until Koons returned to his residence and then approached him in the driveway and told him they had a search warrant. Koons agreed to let them in, and Budach read him the warrant and asked if there were any illegal drugs in the residence. Koons said there was a bag of marijuana underneath a mattress in the main bedroom. Eventually Koons produced $310 in cash from his pockets, and Van Langen detected a lump in the top of one of his front pockets which turned out to be a plastic bag containing 15 grams of methamphetamine. Van Langen also felt a long skinny object in his back pocket, which proved to be an empty pen casing which Koons admitted he used to smoke methamphetamine.

The search of the bedroom turned up a number of items specified in the warrant. On top of a dresser Budach found a partial marijuana cigarette, a piece of paper with marijuana scattered on it, a Tupperware bowl wrapped with green duct tape, and a small black book containing nicknames and dollar amounts owed. In the Tupperware bowl were three baggies containing individually wrapped quantities of methamphetamine. In the top drawer of the same dresser Budach found a baggie containing approximately 15 grams of marijuana and a pouch containing approximately $3,250 in cash and more marijuana. On top of a different dresser was a foily containing approximately one gram of methamphetamine and another small black book containing drug notes. The amount of methamphetamine found in the residence was later determined to be 89.95 grams.

Budach placed Koons under arrest. While they waited for another officer to arrive, Koons looked over the search warrant and asked why Cindy's name was on it. Budach said that he thought she lived there. Koons said she had moved out a month earlier, and all the drugs belonged to him. Budach and Van Langen concluded their search and found another small black book with drug notes. While Koons was being booked at the station, he again admitted to using methamphetamine.

Koons was indicted on charges of possession of 89.95 grams of methamphetamine with intent to distribute within 1,000 feet of a public playground, 21 U.S.C. §§ 841(a), 860(a) (count one), possession of a firearm as a user of controlled substances,⁴ 18 U.S.C. §§ 922(g)(3), 924(a)(2) (count two), and criminal forfeiture of property related to drug trafficking, 21 U.S.C. § 853 (count three). He moved to suppress evidence obtained from the search of his residence on the ground that the search warrant was not supported by probable cause. He also moved separately to strike all penalties for violation of 21 U.S.C. § 860(a), arguing that Congress lacked power under the Commerce Clause to enact that statute.

A suppression hearing was held before a magistrate judge, who concluded that Budach's affidavit was insufficient to establish probable cause, that Budach's search could not have been in good faith, and that the physical evidence seized and virtually all of the incriminating statements made by Koons resulted from an illegal search. The magistrate judge recommended that the motion to suppress be granted except for one statement made by Koons. The United States filed objections to the magistrate judge's report and recommendation.

After a de novo review, the district court denied the motion to suppress except for a statement made by Koons during the booking process before he received Miranda warnings. The court concluded that both officers had acted in good faith in executing the search warrant regardless of whether or not the supporting affidavit actually showed probable cause. The court also denied the motion to strike penalties because it concluded that 21 U.S.C. § 860(a) is constitutional.

Koons stipulated to possession of 1,254.03 grams of methamphetamine⁵ and pled guilty to counts one and three of the indictment. Count two, the firearms charge, was to be dismissed. Prior to sentencing he sought a safety valve reduction, see 18 U.S.C. § 3553(f); United States Sentencing Commission Guidelines Manual [USSG] § 5C1.2, and he also asked for a downward departure under USSG § 5K2.0 on the grounds that he had posed no real danger by his "proximity to a park," as well as his exceptional personal and family circumstances and willingness to cooperate. The district court declined to grant a reduction or a departure and stated that it lacked authority to depart downward on the basis of his actual danger argument "in circumvention around the Congressional statute in 860." The district court calculated the sentencing range at 97 to 121 months and sentenced Koons at the low point to 97 months.

Koons argues on appeal that the search warrant lacked probable cause and that all evidence obtained under its authority should have been suppressed. He contends that Budach's affidavit was "bare bones," that reliance on it was unreasonable because it lacked indicia of probable cause, and that the magistrate who issued the search warrant had abandoned his judicial role. Koons argues that 21 U.S.C. § 860(a) is unconstitutional because its enactment exceeded the scope of congressional power under the Commerce Clause. He also claims that the district court erred by denying him a safety valve reduction, by concluding that it lacked authority to depart downward on the basis that his location presented no added danger, and by declining to depart on the basis that a combination of factors took his situation out of the heartland of cases. The government responds that the district court was correct in its rulings on these issues.

We review factual findings of the district court for clear error, United States v. Reinholz, 245 F.3d 765, 773 (8th Cir. 2001), but our review is de novo for denial of a suppression motion, United States v. Davis, 288 F.3d 359, 362 (8th Cir.2002), for ruling on the constitutionality of a statute, United States v. McMasters, 90 F.3d 1394, 1397 (8th Cir.1996), for interpreting or applying statutes, United States v. Auginash, 266 F.3d 781, 783 (8th Cir.2001), or for determining whether a court has discretion to depart on a particular basis. United States v. Beltran, 122 F.3d 1156, 1158 (8th Cir.1997).

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and...