U.S. v. Pennington

• Decision Date: 26 April 2002
• Docket Number: No. 01-2881.,01-2881.
• Citation: 287 F.3d 739
• Parties: UNITED STATES of America, Defendant-Appellee, v. Douglas Lynn PENNINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 739

287 F.3d 739

UNITED STATES of America, Defendant-Appellee, v. Douglas Lynn PENNINGTON, Defendant-Appellant.

No. 01-2881.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2001.

Filed: April 26, 2002.

COPYRIGHT MATERIAL OMITTED

Keith D. Sorrell, Poplar Bluff, MO, argued, for appellant.

Abbi Crites-Leoni, Asst. U.S. Atty., Cape Girardeau, MO, for appellee.

Before LOKEN and BYE, Circuit Judges, and BOGUE,^* District Judge.

LOKEN, Circuit Judge.

A warrant search of Douglas Lynn Pennington's rural Missouri property uncovered methamphetamine, precursor chemicals, equipment for manufacturing and distributing methamphetamine, and documents relating to drug transactions. Officers returned to Pennington's property two months later to investigate complaints he had resumed his methamphetamine activities; a search incident to his arrest uncovered methamphetamine, and a warrant search of the property yielded equipment used to manufacture methamphetamine and containers with methamphetamine residue. Pennington was indicted on three counts of manufacturing and possessing with intent to distribute methamphetamine. The district court¹ denied his motions to suppress evidence seized during the two searches, and for a Franks hearing. Pennington then entered conditional guilty pleas to all three charges, and the district court sentenced him to concurrent 210-month prison terms on each count. He now appeals the court's suppression and Franks rulings. We affirm.

Regarding the initial search, Pennington argues (1) the warrant was invalid because police failed to corroborate information provided by a confidential informant; (2) a Franks hearing is required because of a misleading statement in the search warrant affidavit; and (3) the search of areas other than his home went beyond the scope of the warrant. Regarding the second search, Pennington argues (4) his arrest and the search incident to his arrest were based upon evidence illegally discovered after police entered his home without a warrant; and (5) evidence seized during the subsequent warrant search was the tainted fruit of the earlier illegal entry. We will affirm the denial of a suppression motion "unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made." United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir.1998).

I. The Initial Search.

Validity of the Warrant. On June 21, 2000, a person arrested earlier that day for possessing methamphetamine told Trooper Chris Graves that he had been purchasing an eighth ounce of methamphetamine from Pennington every two to three weeks for over a year; that Pennington was manufacturing methamphetamine; and that Pennington often carried methamphetamine with him in his red truck.

On June 22, the confidential informant (CI) agreed to cooperate with law enforcement officers in a controlled buy and arranged a meeting with Pennington to purchase methamphetamine. While planning the controlled buy, Trooper Graves twice saw Pennington standing next to or driving a red truck. At 8:30 p.m., officers searched the CI's vehicle and gave him two hundred dollars cash. Trooper Graves watched the CI drive to Pennington's residence, pull into the driveway behind Pennington's red truck, exit his car, and walk toward a box trailer near the modular home. Ten minutes later, the CI returned to his car and drove off to their scheduled meeting place, followed by other officers. When Trooper Graves arrived at the rendezvous, the CI said that he had purchased methamphetamine and that Pennington was currently manufacturing methamphetamine in the box trailer. The CI gave Trooper Graves a bag containing a white substance and wet coffee filters containing a brown substance, both of which field-tested positive for methamphetamine. Graves noticed that the CI "reeked" of ether. Trooper Graves prepared a search warrant application and an affidavit setting forth the above information. The application and affidavit were reviewed by the prosecuting attorney and by a circuit court judge, who issued a warrant authorizing a search of Pennington's property later that evening.

1. Pennington argues that the June 22 warrant was invalid because the officers failed to corroborate information provided by the CI. This argument is without merit because, by arranging and monitoring a controlled buy at Pennington's farm, the officers reliably corroborated the CI's information that Pennington was manufacturing and distributing methamphetamine at that location. Moreover, in cooperating with Trooper Graves, the CI implicated himself in criminal activity, which tends to support a finding of probable cause to search. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct 2075, 29 L.Ed.2d 723 (1971). Thus, Trooper Graves's warrant affidavit gave the issuing magistrate more than sufficient information to conclude there was probable cause to issue the search warrant, that is, "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

2. Pennington further challenges the June 22 search warrant by arguing he is entitled to a hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to explore whether Trooper Graves made a knowingly false statement in his warrant affidavit that was necessary to the issuing magistrate's finding of probable cause. In describing the CI's controlled buy, Trooper Graves averred, "After several minutes, the informant exited the Pennington residence and traveled to a predetermined location where he met with [the investigating officers]." At the suppression hearing, Trooper Graves testified that he observed the CI approach the box trailer, not Pennington's modular home. Therefore, Pennington argues that Trooper Graves lied in the warrant affidavit when he said he saw the CI exit the residence.

Trooper Graves's suppression testimony was very clear: "My definition of the residence would be the modular home, the box trailer, [and] the other out buildings on the property." Using Graves's definition of Pennington's residence, his warrant affidavit was not false in stating that the CI "exited the Pennington residence" and proceeded to his rendezvous with the investigating officers. And certainly this is not the strong initial showing of deliberate falsehood that a defendant must make to warrant a Franks hearing. See United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.), cert. denied, 516 U.S. 871, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995). Moreover, whether the controlled buy occurred in the box trailer or in the modular home did not affect whether Graves's affidavit established probable cause to search both structures and the surrounding premises for controlled substances, equipment for drug manufacturing, drug proceeds, and other evidence of drug trafficking crime. See United States v. Reivich, 793 F.2d 957, 963 (8th Cir.1986). The district court properly denied Pennington's request for a Franks hearing.

Scope of the June 22 Warrant. In his affidavit accompanying the June 22 search warrant application, Trooper Graves stated:

According to the confidential informant every time that he (C.I.) has been at the Pennington residence Doug Pennington has been in possession of methamphetamine. The confidential informant further stated that Pennington manufactures methamphetamine. Some of the manufacturing stages are done at the Pennington residence in a box trailer located on the north side of the modular home. According to the confidential informant Pennington often carries methamphetamine in his personal vehicle.

The warrant — also drafted by Trooper Graves — provided:

IN RE THE MATTER OF: The residence of Doug Pennington, who resides at 1049 Butler County Road # 480 in Butler County, Missouri. The residence is a white modular home that faces East. There is a metal outbuilding on the north side of the residence and a box trailer on the north side of the residence. The home is approximately 3 tenths of a mile north of Highway 67 on Butler County Road # 480. The residence sits approximately 150 yards on the west side of County Road # 480. ITEMS TO BE SEARCHED FOR: Controlled substances, imitation controlled substances, drug paraphernalia, items used to manufacture controlled substances and/or monies related to drug sales.

* * * * * *

NOW THEREFORE IN THE NAME OF THE STATE OF MISSOURI

I, COMMAND that you search the ... place ... above described within ten (10) days ... and if said described property, or any part thereof, be found on said ... place ... that said property be seized ... to be dealt with according to the law.

In executing the June 22 warrant, police officers seized evidence found in Pennington's modular home, in the box trailer, in weeds alongside the metal outbuilding, in the red truck, in a dump truck parked near the box trailer, and buried in a back pasture 250-300 yards from the modular home. Pennington argues that the warrant authorized only a search of his "residence," that is, the modular home. Therefore, the box trailer, the metal outbuilding, the red truck, the dump truck, and anything buried in the back pasture were outside the scope of the warrant, and evidence seized from these parts of the property must be suppressed.

The Fourth Amendment provides that warrants must "particularly describ[e] the place to be searched, and the persons or things to be seized." This particularity requirement "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). The authority to search granted by any warrant is "limited to the specific places described in it and...