U.S. v. Person, CR0609(01-02)RHK/RLE.
| Decision Date | 06 April 2006 |
| Docket Number | No. CR0609(01-02)RHK/RLE.,CR0609(01-02)RHK/RLE. |
| Citation | 427 F.Supp.2d 894 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard Charles PERSON, and Ronnielynn Marie Keezer, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Virginia G. Villa, Federal Public Defender, Robert M. Christensen, Christensen Law Office, Minneapolis, MN, for Defendants.
Clifford B. Wardlaw, U.S. Attorney, Minneapolis, MN, for Plaintiff.
Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-entitled matter, it is ORDERED:
1. The Report and Recommendation (Doc. No. 68) is ADOPTED;
2. The Motion of Ronnielynn Keezer to Dismiss the Indictment (Doc. No. 46) is DENIED;
3. The Motion of Ronnielynn Keezer to Suppress Evidence of Search and Seizure (Doc. No. 41) is DENIED;
4. The Motions of Ronnielynn Keezer to Quash Arrest and Suppress Evidence Illegally Obtained (Doc. Nos. 51 and 52) are DENIED; and
5. The Motion of Ronnielynn Keezer to Suppress Evidence Derived from Electronic Surveillance (Doc. No. 54) is DENIED AS MOOT;
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the following Motions of the Defendant Ronnielynn Marie Keezer ("Keezer"):
1. Keezer's Motion to Suppress Evidence Obtained as a Result of Search and Seizure.
2. Keezer's Motion to Dismiss Indictment on Grounds of Insufficient Allegations.
3. Keezer's Motion to Quash Arrest and to Suppress Evidence Illegally Seized.
4. Keezer's Motion to Suppress Evidence Derived from Electronic Surveillance.
A Hearing on the Motions was conducted on February 16, 2006, at which time, the Defendant Richard Charles Person ("Person") appeared personally, and by Virginia G. Villa, Assistant Federal Defender; Keezer appeared personally, and by Robert M. Christensen, Esq.; and the Government appeared by Clifford B. Wardlaw, Assistant United States Attorney.
For reasons which follow, we recommend that each of the Keezer's Motions be denied.
The Defendants are each charged with one Count of conspiracy with intent to distribute crack cocaine, in violation of Title 21 U.S.C. §§ 841(b)(1)(A), and 846; two Counts of aiding and abetting the possession with intent to distribute crack cocaine, in violation of Title 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and Title 18 U.S.C. § 2; one Count of possession of a firearm during a drug trafficking crime, in violation of Title 18 U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(B)(i), and 2; and one Count of possession of a firearm with an obliterated serial number, in violation of Title 18 U.S.C. § 922(k). The events which gave rise to the conspiracy charge are alleged to have taken place during the time period from January 1, 2005, until October 13, 2005, while the events which gave rise to aiding and abetting possession with intent to distribute charges are alleged to have taken place on January 7, and October 13, 2005, respectively; and the events which gave rise to the possession of a firearm during a drug trafficking crime, and the possession of a firearm with an obliterated serial number charges, are alleged to have occurred on January 7, 2005. All of the events are alleged to have occurred in this State and District.
Keezer has moved to dismiss the Indictment against her, to quash her arrest, to suppress evidence obtained through electronic surveillance, and to suppress evidence obtained during the execution of two separate Search Warrants. Keezer's Motion to Suppress Evidence Obtained as a Result of Search and Seizure asks us to review two Search Warrants so as to determine if the Warrants were supported by probable cause, or contained any other fatal defects. No testimony was adduced at the Hearing on the Defendants' Motions, and therefore, we limit our consideration to the "four corners" of the Search Warrants, and their supporting papers.
Keezer's Motion to Dismiss the Indictment is based upon her assertion that the issuance of the Indictment, by the Grand Jury, was not based upon competent evidence, but upon opinion evidence which, she contends, is inadequate to sustain the Indictment. However, Keezer has provided us with no basis to doubt the veracity of the Grand Jury proceedings and, in any event, the established rule in our Circuit is that "a grand jury may indict on whatever evidence is laid before it, even evidence that would be inadmissible at trial." United States v. Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997), citing United States v. Levine, 700 F.2d 1176, 1179 (8th Cir. 1983); see United States v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980)("Indictments may not be challenged merely upon the ground that there was inadequate or incompetent evidence before the Grand Jury."), citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.E d. 397 (1956)(Fifth Amendment does not require that a showing that a Grand Jury Indictment is based on competent and adequate evidence prior to proceeding to the Trial on its merits.). Therefore, we recommend that Keezer's Motion to Dismiss the Indictment be denied.
1. Standard of Review. In the issuance of a Search Warrant, the Fourth Amendment dictates that an impartial, neutral, and detached Judicial Officer, will assess the underlying factual circumstances so as to ascertain whether probable cause exists to conduct a search, or to seize incriminating evidence, the instrumentalities or fruits of a crime, or contraband. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995), cert. denied, 516 U.S. 1139, 116 S.Ct. 971, 133 L.Ed.2d 891 (1996). In order to find probable cause, it must be demonstrated that, in light of all the circumstances set forth in the supporting Affidavit, there is a fair probability that contraband, or evidence of a crime, will be found in a particular, designated place. United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995); United States v Tagbering, 985 F.2d 946, 949 (8th Cir. 1993). For these purposes, probable cause is "a fluid concept, turning on the assessment of probabilities in particular factual contexts, not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
"Search warrant "[a]pplications and affidavits should be read with common sense and not in a grudging hyper technical fashion.'" United States v. Ryan, 293 F.3d 1059, 1061 (8th Cir. 2002), quoting United States v. Goodson, 165 F.3d 610, 613 (8th Cir. 1999), cert. denied, 527 U.S. 1030, 119 S.Ct. 2385, 144 L.Ed.2d 787 (1999). In conducting such an examination, the Court should review the Affidavits as a whole, and not on a paragraph-by-paragraph basis. United States v. Anderson, 933 F.2d 612, 614 (8th Cir. 1991); Technical Ordnance, Inc. v. United States, 244 F.3d 641, 649 (8th Cir. 2001), cert. denied, 534 U.S. 1084, 122 S.Ct. 819, 151 L.Ed.2d 702 (2002). Moreover, the reviewing Court must not engage in a de novo review but, rather, should accord great deference to the decision of the Judicial Officer who issued the Warrant. United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995), cert. denied, 516 U.S. 903, 116 S.Ct. 265, 133 L.Ed.2d 188 (1995); United States v. Curry, 911 F.2d 72, 75 (8th Cir. 1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). This mandated deference to the determination of the issuing Judicial Officer is consistent with the Fourth Amendment's sound preference for searches that are conducted pursuant to Warrants. Illinois v. Gates, supra at 236, 103 S.Ct. 2317.
Moreover, "[i]t is axiomatic that probable cause must exist at the time of the search and not merely at sometime earlier." United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005); see, United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995). Therefore, a lapse of time, between the observations of a witness and the issuance of a Search Warrant, like a delay in executing a Search Warrant, "may make probable cause fatally stale." United States v. Maxim, supra at 397 [quotations omitted].
"There is no bright-line test for determining when information is stale," and the passage of time, alone, is "not always the controlling factor," as other factors, such as "the nature of the criminal activity involved and the kind of property subject to the search," are also relevant to the inquiry. Id., quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993); United States v. Rugh, 968 F.2d 750, 754 (8th Cir. 1992); see also, United States n. Kennedy, supra at 1141; United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002). As but one example, when the Affidavit alleges an "ongoing continuous criminal enterprise, the passage of time between the receipt of information and the search becomes less critical in assessing probable cause." United States v. Rugh, supra at 754. Therefore, in our analysis, we must not "simply count[] the number of days between the occurrence of the facts supplied and the issuance of the affidavit," but must consider any passage of time "in the context of a specific case and the nature of the crime under investigation." United States v. Maxim, supra at 397, quoting United States v. Koelling, supra at 822. Furthermore, "`where recent information corroborates otherwise stale information, probable cause may be found.'" United...
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