U.S. v. Norsworthy

• Decision Date: 21 August 2009
• Docket Number: Criminal Action No. 4:09-cr-0228.
• Citation: 654 F.Supp.2d 581
• Parties: UNITED STATES of America v. Jeffery NORSWORTHY.
• Court: U.S. District Court — Southern District of Texas

Page 581

654 F.Supp.2d 581

UNITED STATES of America v. Jeffery NORSWORTHY.

Criminal Action No. 4:09-cr-0228.

United States District Court, S.D. Texas, Houston Division.

August 21, 2009.

Jay Hileman, Financial Litigation, Office of the U.S. Attorney, U.S. Marshal, U.S. Pretrial Svcs, U.S. Probation, Houston, TX, for United States of America.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court is Defendant's Motion to Suppress Illegally Seized Evidence. (Doc. No. 17.) For the following reasons, this Motion shall be denied.

I. INTRODUCTION

On January 2, 2009, at approximately 10:30 a.m., Deputy C. Kowis, a Harris County Sheriffs Deputy and certified narcotics dog handler, assigned to the Narcotics Unit, received a call from an anonymous caller who identified him or herself as a "concerned citizen" and said that "someone was selling methamphetamines out of a house at 1303 Great Dover Court in Channel view, Texas."¹ Four hours later, Deputy Kowis attempted a "knock and talk" investigation at the location along with his canine partner "Elmo," a certified drug sniffing dog, but no one was home. Elmo conducted a "free air sniff at the lower seam of the front door and garage door of the residence at which time Elmo sat down, indication that Elmo was alerting to the presence of illegal substances including marijuana, cocaine, heroin, or methamphetamine. At that time, Deputy Kowis ran the license plate of a white 2005 Cadillac Escalade parked in the driveway and determined that it was registered to Defendant, known to investigators as an individual with prior drug arrests.

Deputy Kowis and other Harris County Sheriff's deputies secured the outside perimeter of the residence as they prepared the affidavit for a search warrant. The deputies remained there until they entered the house, except for Deputy Kowis. At approximately 3:00 p.m., while posted outside the house, investigators observed Defendant, who they recognized, drive towards the residence on a blue motorcycle, with a female riding on the rear, but flee once he saw the investigation team and the marked Harris County Sheriff patrol vehicles. Deputy Kowis and Harris County Sheriffs Sergeant Toquica pursued Defendant until he lost control and crashed his motorcycle. Defendant was found with over $8000 in United States currency to which Elmo alerted for the presence of one of the aforementioned illegal narcotics.² Defendant and the female passenger were arrested and taken back to Defendant's house in a marked car. They remained in the car until the conclusion of the investigation and search.

Kowis relayed these facts to his colleague, Deputy T.A. Windsor, a Harris County Sheriffs Department, Narcotics Division peace officer, who has specialized training in narcotics investigations. Deputy Windsor purportedly knows through experience that drug dealers frequently store at their residences ledgers, money counters, customer and supplier lists and packaging materials in furtherance of their criminal enterprise. Deputy Windsor relayed the anonymous tip, the alert by Elmo, the identification of a car belonging to Defendant, known to have prior drug arrests, Defendant's flight upon seeing law enforcement personnel at his residence, Defendant's possession of over $8000 at the time of his arrest, and the detection of narcotics on the $8000 at the time of arrest. Harris County Magistrate and Criminal Hearing Officer Frank Aguilar issued a warrant for law enforcement officers to search the residence.

On January 2, 2009, law enforcement officers executed the search warrant. They first entered the house and made a sweep to clear the residence of possible suspects. Then they conducted a detailed physical search and discovered suspected methamphetamines, valium, and Ecstasy, as well as drug paraphernalia, firearms, ammunition, suspected drug ledgers, hand-held radios and related equipment with all of Harris County Sheriffs Office channels; a cutting agent; zip lock bags for packing individual amounts of controlled substances; and approximately $54,000.

Defendant alleged that a neighbor heard glass breaking and observed the officers first enter through the rear of the house; Defendant's family took pictures the next morning showing damage to the rear of the house. (Doc. No. 17, Ex. 2.) These pictures were taken in daylight and include an electronic date stamp, possibly from the camera that took them, of January 3, 2009. The neighbors did not testify at the suppression hearing. Defendant testified that, when he left the house on January 2 prior to his return and motorcycle chase, the house windows were not broken. Cindy Cox, Defendant's ex-wife, testified that she arrived at the house on January 2, 2009, to find Defendant in a marked Harris County officer's patrol car and then followed him when he was taken into custody at the WaUisville Substation for booking into the Harris County Jail. She contends that she returned to the house after that and found the house windows broken. None of the witnesses who testified remained at Defendant's house from the time that the deputies established the perimeter until the next day, January 3, when the windows were found broken. The deputies finished executing the search warrant late in the evening, perhaps around midnight.

Defendant was indicted on one count of felon in possession of a firearm. Defendant now moves, pursuant to the Fourth and Sixth Amendments to the United States Constitution, to suppress the evidence seized in the search.³

II. MOTION TO SUPPRESS

A. Standard

The Fourth Amendment provides in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." United States Const. Amend. IV. The exclusionary rule requires the court to suppress evidence on the basis of a warrant that is not supported by probable cause. See, e.g. United States v. Pope, 467 F.3d 912, 916 (5th Cir.2006); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." See United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). To prevail on a motion to suppress, the Government must demonstrate by a preponderance of the evidence that the challenged evidence was lawfully obtained. United States v. Matlock, 415 U.S. 164, 178, n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.").

B. Whether the Search Warrant is Facially Defective

1. Signature by a Harris County Criminal Law Hearing Officer Rather than District Court Judge

Defendant notes that, pursuant to Article 2.09 and Article 18.01(c) of the Texas Code of Criminal Procedure, a criminal law hearing officer is not authorized to sign a Subdivision 10, Article 18.02 warrant ("evidentiary warrant")—evidentiary warrants may only be signed by a judge of a municipal court of record, not a criminal law hearing officer like Hearing Officer Aguilar.

Any magistrate may sign a warrant issued pursuant to subdivisions 1 through 9 of section 18.02.⁴ The Government argues that the search warrant was issued pursuant to Article 18.02(7) or a warrant for "drugs kept, prepared or manufactured in violation of the laws of Texas." As this Court has noted, any magistrate may issue a warrant for the search of controlled substances and related paraphernalia under subdivision 7. See United States v. Jackson, H-06-0090, 2006 WL 1492277, at *2 (S.D.Tex. May 25, 2006) (denying a motion to suppress for a warrant authorizing a search for methamphetamine as well as associated records, currency, papers and other items constituting evidence of the possession, illegal manufacture, and distribution of methamphetamine).

Subdivision 10 is a catch-all section that applies only when the other articles do not.⁵ See, e.g., State v. Young, 8 S.W.3d 695, 698 (Tex.App-Fort Worth 1999, no pet.). When a search warrant may be categorized as issued under a different subdivision, it is not an evidentiary warrant. See id. (reversing a trial court's grant of a motion to suppress because the search warrant to seize "1. Keltec 9mm pistol or any other 9mm pistols" was categorized as a subdivision 9 warrant rather than an evidentiary warrant). Even if the affidavit for the search warrant and the warrant itself are titled pursuant to subdivision 10, a court may construe the search warrant as permissibly issued by a justice of the peace under a different subdivision. State v. Acosta, 99 S.W.3d 301, 304 (Tex. App.-Corpus Christi 2003, pet. ref'd) (reversing because the trial court should have denied the motion to suppress based on the substance of the warrant, not its title); State v. Maldonado, 2002 WL 34230975 (Tex.App.-Corpus Christi Dec.19, 2002, no pet.). In Acosta, the warrant, titled as Subdivision 10, explained that "[Y]ou shall search for and, if the same be found, seize and bring before me the property described in the affidavit, to wit: COCAINE;" the Court construed it as a subdivision 7 warrant. 99 S.W.3d at 304.

Defendant contends that Young and Acosta do not apply.⁶ Defendant notes that the Young court specifically addressed whether a warrant to seize a gun (not a gun and other evidence) and was a subdivision 10 rather than a subdivision 9 warrant. Because subdivision 9 pertains to "implements or instruments used in the commission of a crime," the court held that the warrant was permissibly signed by a hearing officer. Likewise, the Acosta warrant authorized the seizure of cocaine (not cocaine and other evidence) and the court found it properly authorized by...