U.S. v. Shamaeizadeh

• Citation: 80 F.3d 1131
• Decision Date: 09 April 1996
• Docket Number: No. 94-6384,94-6384
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ali SHAMAEIZADEH a/k/a Ali Zadeh, Brian Reed, and Joe Ford, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1131

80 F.3d 1131

UNITED STATES of America, Plaintiff-Appellant, v. Ali SHAMAEIZADEH a/k/a Ali Zadeh, Brian Reed, and Joe Ford Defendants-Appellees.

No. 94-6384.

United States Court of Appeals Sixth Circuit.

Decided April 9, 1996.

On Appeal from the United States District Court for the Eastern District of Kentucky; Karl S. Forester, Judge.

Sean Connelly (argued and briefed), U.S. Dept. of Justice, Criminal Division, Washington, DC, for U.S.

David R. Marshall (argued and briefed), Lexington, KY, for Ali Shamaeizadeh.

Joe A. Jarrell (argued), Patrick F. Nash (argued and briefed), Lexington, KY, for Brian Reed.

Mark J. Stanziano, Somerset, KY, for Joe Ford.

Before: KENNEDY and JONES, Circuit Judges; HOLSCHUH, Chief District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

Defendants Shamaeizadeh, Reed, and Ford were indicted for violations of federal drug laws in the District Court for the Eastern District of Kentucky. The sole issue on appeal is whether the district court properly invalidated a search warrant on the ground that it was not supported by probable cause. We hold that the redacted affidavit relied upon by the issuing magistrate lacked a substantial basis for establishing probable cause to search Reed and Ford's basement apartment. For this reason, we affirm the ruling of the district court.

The indictments were based in large part on evidence obtained from Reed and Ford's basement apartment pursuant to a search warrant. Before trial, each of the Defendants moved to suppress the evidence, alleging that the police had obtained the warrant only after conducting two illegal searches of Defendants' residence. The magistrate judge recommended that the district court grant the Defendants' motions. The district court adopted the magistrate's findings and redacted the evidence obtained as a result of those searches from the supporting affidavit. Subsequently, the court concluded that the redacted affidavit did not provide sufficient probable cause to support the issuance of a warrant and thereby granted the Defendants' motions. This appeal followed.

I.

The Defendants live in a one story house with a basement at 121 Millstone Drive (hereinafter "Millstone") in Richmond, Kentucky. Defendant Shamaeizadeh occupied the upper floor with his fiancee, Theresa Schmitt. Defendants Reed and Ford occupied the basement. Each of the residents regarded the basement as Reed and Ford's distinct apartment dwelling.

At 8:34 p.m. on March 14, 1994, Schmitt called the Richmond Police Department, alleging that a burglary had taken place at Millstone. The Department immediately dispatched Officer Mark Wiles, who arrived at Millstone five minutes later. Schmitt told Wiles that she had left the back door open to allow her cats to return. After taking some muscle relaxants and drinking a beer, she passed out on the kitchen table. When she awoke, she noticed that her room key was missing from her pocket, leading her to suspect that a burglar had entered the house and taken it. Schmitt then went to her room to apply some makeup. She alleged that during this time, the burglar reentered Millstone, broke the glass top of the kitchen table, and then left. Indeed, Officer Wiles observed shattered glass all over the kitchen floor.

Fearing that the burglar might still be in the house, Schmitt asked Wiles to search the house with her. Officer Wiles first searched the upper floor. He then discovered a locked door, but did not attempt to open it because Schmitt told him that it was Shamaeizadeh's room and that he kept it locked while he was away. He also discovered a broken door which led to the basement apartment of Reed and Ford. Wiles, however, did not examine it because Schmitt told him that she had kicked it open in order to use the telephone a few days earlier. Officer Wiles later testified that during this search, he detected a "faint odor" of growing marijuana.

After searching the upper floor, Officer Wiles went through the back door, which led to a large deck overlooking the back yard. He searched the back yard. Meanwhile, Schmitt, who was still in the house, entered the lower floor apartment through the broken door. After entering the apartment, she exited through the back door of the apartment and met Officer Wiles in the backyard. She asked him to check the basement apartment. She explained to Wiles that Reed and Ford occupied the basement apartment but that they were away on spring break. Having learned that the lower floor was actually a separate residence, Officer Wiles nonetheless proceeded to search the apartment.

During the course of his search of the basement apartment, Officer Wiles noticed that it contained several rooms. Most of the doors in the apartment, however, remained locked, and he did not try to open them. Nonetheless, Wiles noticed the scent of marijuana. After finishing his walk-through of the downstairs apartment, Officer Wiles--who later admitted at the suppression hearing that he had seen less than five marijuana plants in his life and could not recognize the scent of growing marijuana--called Assistant Police Chief Wayne Grant because he believed that he would need a supervisor to assist him. Wiles and Schmitt returned to the upper floor. While awaiting Grant's arrival, Schmitt told Wiles that the "government" was the burglar, causing Wiles to discredit Schmitt's allegations.

When Grant arrived, he and Wiles conducted the second search of Millstone. They did not ask Schmitt's permission for this search. As they entered the lower floor apartment, Wiles once again detected the scent of what he suspected to be marijuana. While in the basement apartment the officers discovered small marijuana cigarette butts, or "roaches," in an ashtray. They also uncovered boxes of fluorescent bulbs underneath the apartment stairway, and noticed that fluorescent lighting in one of the locked rooms turned on and off intermittently. Because marijuana is often grown under fluorescent light, the officers suspected that the lighting was being used for that purpose. As a result, Sergeant Sam Manley and Officer Joel Cunigan, who has extensive experience and training in detecting marijuana but is not normally dispatched to investigate burglaries, were called in to offer assistance. Manley and Cunigan arrived at Millstone at about 9:20 p.m.

Grant, Manley and Cunigan conducted the third search of Millstone. This search was also conducted without Schmitt's permission. Upon entering the lower floor, Cunigan "noticed a strong odor which [he] suspected to be growing marijuana." J.A. at 218. Cunigan then discovered a hemostat, rolling papers, a plastic bag of what he suspected was marijuana (but which was later discovered to be catnip), and a bag containing a variety of pills. After completing the third search, the officers advised Schmitt of her rights. Schmitt then told the officers that she believed Reed and Ford were growing marijuana in their apartment. She informed the officers that she had never seen the marijuana, but the scent was so strong, particularly at nighttime, that she covered her vents to avoid it. After obtaining this information from Schmitt, Cunigan called a state prosecutor and proceeded to secure a search warrant.

Cunigan submitted a sworn affidavit in support of his petition for a search warrant. The affidavit stated the following:

On the 14th day of March 1994, at approximately 8:34, the Richmond Police Department received a call [from] Teresa Schmidt [sic] of 121 Millstone Drive, and Ms. Schmidt reported that there had been a burglary at her residence. Officer Mark Wiles responded to the alleged burglary and upon entering the residence and beginning the investigation Officer Wiles along with Sgt. Sam Manley and Asst. Chief Wayne Grant observed numerous items of drug paraphernalia, partially smoked marijuana cigarettes, [a] plastic bag containing several different types of what appeared to be prescription pills and plastic bag of what readily appeared to be suspected marijuana. At this time I was contacted and I went to the residence where I also observed the same items.

While in the residence, I detected a strong odor of growing marijuana both upstairs and downstairs. Several of the rooms in the residence were locked and we were unable to look inside them.

According to Schmidt, some of the other occupants of the house are growing marijuana inside the house.

From under the door of one of the locked rooms, I could see a strong florescent [sic] light glow.

J.A. at 49. Relying on this affidavit, the Madison County district court judge issued a warrant for the search and seizure of "[a]ny and all illegally possessed controlled substances including marijuana, both growing and processed, and any drug paraphernalia ..." J.A. at 50.

At 11:19 p.m., Cunigan returned to Millstone with other Richmond police officers, as well as an agent from the Drug Enforcement Agency, to execute the search warrant. After forcibly opening the locked doors in the basement apartment, they found and seized 393 marijuana plants, 17 of which were found in Reed's locked basement room, and various growing equipment. They found nothing of evidentiary significance in Ford's locked basement room. Shamaeizadeh, Reed, and Ford were subsequently arrested and indicted for federal drug law violations under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. §§ 2 and 924(c)(1). In addition, Shamaeizadeh was charged with renting the basement apartment for the purpose of unlawfully manufacturing, storing or distributing marijuana under 21 U.S.C. § 856.

After their indictment, Defendants Reed and Ford moved to suppress the evidence seized pursuant to the March 14 warrant. ¹ The magistrate found that due to "exigent circumstances," the first warrantless search was constitutional despite the fact that Schmitt "did not have the 'common authority' " to authorize a search of the basement apartment. J.A. at 132 (Magistrate's Recommendation and...