U.S. v. McVeigh

Decision Date14 August 1996
Docket NumberCriminal Action No. 96-CR-68-M.
Citation940 F.Supp. 1541
PartiesUNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.
CourtU.S. District Court — District of Colorado

Patrick M. Ryan, U.S. Attorney for Western District of Oklahoma, Oklahoma City, OK, Joseph Hartzler, Special Assistant U.S. Attorney, Assigned from S.D. Illinois, Denver, CO, for plaintiff U.S.

Stephen Jones, Richard H. Burr, III, Robert Nigh, Jr., Jones, Wyatt & Roberts, Enid, OK, Jeralyn E. Merritt, Denver, CO, for defendant McVeigh.

Michael Tigar, Ronald G. Woods, N. Reid Neureiter, Denver, CO, for defendant Nichols.


MATSCH, Chief Judge.

This Memorandum Opinion and Order addresses motions to suppress evidence filed by defendant Terry Nichols as docket entry no. 1453 and by defendant Timothy McVeigh as docket entry no. 1457. Redacted versions of these same motions appear in the public record under docket entries 1452 and 1455. Also addressed is a motion in limine regarding statements of Terry Nichols filed by the United States as docket entry no. 1003.

The complete motions remain sealed because they include references and attachments describing facts which are not now and may never be in evidence, and the court considers them to be properly sealed under the criteria set forth in the Memorandum Opinion and Order on Media Motions, entered January 24, 1996. If that material were now made public, it would likely generate pre-trial publicity prejudicial to the interests of all parties in this criminal proceeding. The bases for the rulings are fully disclosed in this memorandum opinion.

After initial briefing, the court held a hearing on June 18, 1996. At that hearing, counsel for Timothy McVeigh made offers of proof addressing his motion challenging the following search warrants: (1) a search warrant issued by Magistrate Judge Ronald Howland on April 21, 1995, at 3:55 p.m. for the search of Timothy McVeigh's property in custody at the Noble County Jail in Perry, Oklahoma; (2) a search warrant issued by Chief Judge David Russell on April 21, 1995, at 3:10 p.m. for the search of a Mercury Marquis automobile that had been driven by Timothy McVeigh; (3) a search warrant issued by Magistrate Judge Howland on April 21, 1995, at 5:55 p.m. for taking hair samples from the person of Timothy McVeigh; and (4) a search warrant issued by Magistrate Judge Morton Sitver on April 23, 1995, at 5:23 p.m. for a search of box number 206 at the Mail Room, in Kingman, Arizona. Mr. McVeigh challenged those search warrants on the ground that the affidavits filed in support of them, signed by FBI agent Henry Gibbons, contained false and misleading information and that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court should find that the FBI provided such information to the issuing judicial officers knowingly or with reckless disregard for the truth of the information and that the challenged information was necessary to finding probable cause for issuing each of these warrants. This court ruled at the June 18, 1996, hearing that the defendant's proffer of facts was not sufficient for an evidentiary hearing under the Franks v. Delaware case. The court also made an oral ruling that the information in an additional proffer, challenging the search warrants on the ground that Chief Judge Russell and Magistrate Judge Howland were not capable of giving neutral and objective consideration to the affidavits, because of their personal experiences, was insufficient to support the contention, and that no evidentiary hearing was required. Those oral rulings are now incorporated into this memorandum opinion and order by this reference.

The other motions to suppress were the subject of a four-day evidentiary hearing and post-hearing submission of proposed findings of fact and conclusions of law. Upon a review of all of this material, the court now makes its findings and conclusions in the form of this memorandum opinion. Because the rulings on the legal issues raised are, in large part, driven by the facts, some of which are in dispute because of contradictory evidence, the court first sets forth the following findings as the facts which are relevant and material to the issues presented by the record.

At 9:02 a.m. on Wednesday, April 19, 1995, an explosion destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 168 people, injuring hundreds more and capturing the attention of the entire nation. The Federal Bureau of Investigation and other federal law enforcement agencies immediately began a massive investigation even as rescue efforts were being organized. News gathering organizations began comprehensive coverage with radio and television reporters on the scene in Oklahoma City and everywhere else where events thought to be related were occurring.

The President and the Attorney General of the United States made public statements committing all available investigative resources to determine what had happened and who was responsible, with pledges to seek the death penalty for the perpetrators.

At 10:20 a.m. on Highway I-35 about 70 miles north of Oklahoma City, State Trooper Charles Hanger stopped a 1977 yellow Mercury Marquis automobile because the vehicle was not displaying a license plate as required by Oklahoma statute. The driver of that automobile gave his name as Timothy McVeigh, showed a driver's license, gave his address as 3616 North Van Dyke Road, Decker, Michigan, and gave the name of James Nichols of Decker, Michigan as a reference. Mr. McVeigh had a loaded handgun and a knife. Trooper Hanger arrested Timothy McVeigh for misdemeanor offenses and took him to the Noble County Jail in Perry, Oklahoma. Mr. McVeigh's clothing and personal effects were placed in a storage room at the jail pursuant to the general policy of Sheriff Jerry R. Cook.

At some time on April 19, investigators going through the rubble at the explosion site found an axle from which they obtained a vehicle identification number indicating that it was on a Ryder truck which they traced to Elliot's Body Shop in Junction City, Kansas. People interviewed at that business advised that the truck had been rented to a man who presented a South Dakota driver's license with the name Robert Kling. Through interviews and records checks FBI agents learned that Timothy McVeigh had registered at the Dreamland Motel in Junction City, on April 14, using the Decker, Michigan address.

At approximately 11:30 p.m. (E.D.T.) on Thursday, April 20, FBI agents contacted Detective David Hall of the Sanilac County Sheriff's Department in Michigan seeking information about the Decker address given by Timothy McVeigh. Detective Hall reported that the address was a farm belonging to James Nichols and that the sheriff's office had conducted an earlier investigation of that farm because of reports from Kelly Langenburg, the ex-wife of James Nichols. Detective Hall said that he had been told that Timothy McVeigh had stayed with James and his brother Terry Nichols at the Decker farm. The FBI interviewed Kelly Langenburg in Michigan at approximately 9:00 a.m. (E.D.T.) on Friday, April 21. During the afternoon of that day, FBI agents surrounded the James Nichols farm and conducted an extensive search of it pursuant to a warrant. News of that search was telecast by CNN. The FBI also learned that Kelly Langenburg's sister, Lana Padilla, had been married to Terry Nichols. Agents found her in Las Vegas, Nevada, and questioned her as well as Josh Nichols, the 12-year old son of Terry Nichols and Lana Padilla.

On April 21, the FBI filed a complaint in the United States District Court for the Western District of Oklahoma, charging Timothy McVeigh with participation in bombing the Murrah Building. The court issued a warrant for his arrest. At about 10:00 a.m. federal agents contacted Sheriff Cook in Perry, Oklahoma, to inquire about Mr. McVeigh's status. Upon learning that he was still in custody, agents went to the Noble County Jail arriving there at about noon. The FBI agents formally placed Timothy McVeigh under federal arrest at about 4:30 p.m. and removed him from the Noble County Jail at around 6:00 p.m. Sheriff Cook's secretary, Deborah Thompson, typed an inventory of Mr. McVeigh's property and reviewed it with FBI fingerprint examiner Louis Hupp, who had come to the Noble County Jail to fingerprint Mr. McVeigh and obtain his property. Mr. Hupp added some handwritten items on the typed inventory and signed a receipt for the property at about 4:30 p.m. after fingerprinting Mr. McVeigh. After Timothy McVeigh was taken from the building, Mr. Hupp took the prisoner's clothes and personal property to the Prairie County Airport, got on an airplane and went to Washington D.C., where he delivered Mr. McVeigh's belongings to the FBI laboratory for testing.

Earlier that afternoon, at about 3:55 p.m., United States Magistrate Judge Howland, in Oklahoma City, issued a warrant for the search and seizure of Mr. McVeigh's clothing and personal property. The warrant was not given to Sheriff Cook, and it expired by its terms on April 28, 1995. The search warrant was returned to the court in Oklahoma City marked "returned not executed" on May 4, 1995.

The overall FBI investigation was being coordinated at the Strategic Information Operation Center ("SIOC") in FBI headquarters in Washington, D.C. Information coming in from agents working throughout the country was routed through the SIOC where FBI General Counsel Howard Shapiro was working with Merrick Garland, principal assistant to Deputy Attorney General Jamie Gorelick. Other command posts were operating at Oklahoma City, Kansas City, Fort Riley, Las Vegas and Detroit. Working with the FBI agents at the...

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