U.S. v. Sherman, No. CR-04-11-B-W.
| Decision Date | 12 November 2004 |
| Docket Number | No. CR-04-11-B-W. |
| Citation | 344 F.Supp.2d 223 |
| Parties | UNITED STATES of America, v. Alton SHERMAN, Richard Rodrigue, Defendants. |
| Court | U.S. District Court — District of Maine |
Wendy D. Hatch, Law Offices of Donald F. Brown, Brewer, Leonard I. Sharon, Sharon, Leary & Detroy, Auburn, for Alton Sherman (1), Richard Rodrigue (2), Defendants.
Daniel J. Perry, Office of the U.S. Attorney, District of Maine, Bangor, for USA, Plaintiff.
ORDER REJECTING IN PART THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE AND GRANTING DEFENDANTS' MOTIONS TO SUPPRESS
Rejecting in part the Recommended Decision of the Magistrate Judge, this Court concludes evidence seized in violation of the Fourth Amendment's knock-and-announce rule must be suppressed.
Facing federal drug charges, Defendants Rodrigue and Sherman on March 24, 2004, filed separate Motions to Suppress Evidence. The Motions raised two identical grounds: (1) the affidavit in support of the warrant did not contain specific facts sufficient to support a probable cause finding; and, (2) the officers failed to execute the warrant properly in accordance with the "knock and announce" rule. After the Government filed a Response and after an evidentiary hearing, the United States Magistrate Judge filed with the Court on July 21, 2004 her Recommended Decision to Deny the Motions to Suppress Evidence. Defendant Rodrigue filed Objections to the Recommended Decision on August 18, 2004, and Defendant Sherman followed on August 23, 2004; the Government filed an Objection to the Recommended Decision on September 23, 2004. Defendants Rodrigue and Sherman filed Responses on October 12, 2004, and October 13, 2004 respectively. This Court has reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record and has made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; this Court REJECTS in part the Recommended Decision and GRANTS the Defendants' Motions to Suppress.
This Court referred these Motions to Suppress to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), which permits "a district court to refer to a magistrate a motion to suppress evidence and authorizes the district court to determine and decide such motion based on the record developed before a magistrate, including the magistrate's proposed findings of fact and recommendations." United States v. Raddatz, 447 U.S. 667, 669, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Upon objection, the statute requires the district court to make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The Supreme Court has clarified that the "de novo determination" of § 636(b)(1)(C) does not mandate a de novo hearing.1 Raddatz, 447 U.S. at 674, 100 S.Ct. 2406. If the district court elects not to hold an evidentiary hearing, it is required to consider the record which has been developed before the magistrate and give "fresh consideration" to those issues to which specific objection has been made. Id. at 675, 100 S.Ct. 2406 (quoting H.R.Rep. No. 94-1609, at 3 (1976)).
The Government's objection focuses on disparities between the Magistrate Judge's factual findings and the officers' testimony at the evidentiary hearing on two specific issues: 1) whether the officers announced their presence before entering the premises; and, 2) whether there was a delay between the knock and the entry. At the hearing, the officers testified there had been an announcement before entering the premises. They also testified there had been a five to ten second delay between the knock and announcement and the entry. Transcript of Testimony of Chief Lyford at 30 (June 24, 2004) (hereinafter "Trans.") ( ) (emphasis added); Trans., Lieutenant Young at 13 () (emphasis added); Trans., Deputy Dow at 49-50 ( ).
The Magistrate Judge rejected this testimony and relied instead upon the contents of contemporaneous police reports prepared by Deputy Dow and Lt. Young. Deputy Dow's report stated in part: Gov't Ex. 2 (emphasis in original). Lt. Young's June 2002 report stated in part: "Upon arrival we knocked on the door, stated that we were the Sheriff's Office and had a search warrant, waited several seconds and then opened the door." Gov't Ex. 3.
The Government objects to the Magistrate Judge's reliance on the contents of the contemporaneous police reports over the later testimony of the officers. To buttress its objection, the Government points out two errors in the Magistrate Judge's recitation of the facts. In the Recommended Decision, Magistrate Judge Kravchuk wrote:
"Deputy Dow and Lt. Robert Young of the Sheriff's Department testified that the night prior to the suppression hearing in front of me they met together and discussed the case."
Magistrate Judge's Recommended Decision at 5.
The Government argues only Lt. Young, not both Lt. Young and Deputy Dow, testified about this meeting. The Government is correct, but the distinction is trivial. Lt. Young testified he met with Deputy Dow the day before the suppression hearing and discussed the case; Deputy Dow was never asked about the meeting. The unrebutted evidence establishes Lt. Young and Deputy Dow met to discuss the case the day before the hearing.
The Government next contends the Magistrate Judge was in error in the following finding:
Lt. Young testified that as a result of Dow refreshing his recollection he now remembers that before entry was made into the camp, Dow knocked at the door and then Chief Lyford of the Milo Police Department announced, "Piscataquis County Sheriff's Office, Search Warrant" and then after a 5 to 7 second pause, Dow and the Chief entered the camp followed by Young. Young testified that he remembered these events now, two years later, because when Dow reminded him of the procedure, he then recalled that he had found it extraordinarily unusual at the time for the Chief to be announcing on behalf of the Sheriff's Department. However, he had apparently forgotten that fact until reminded of it by Dow.
Recommended Decision at 5-6 (emphasis added).
The Government asserts Dow did not refresh his recollection about when the announcement was made, but only about who made the announcement. First, the Government is incorrect about what the Magistrate Judge found. Lt. Young's contemporaneous report states that the police announced their presence before entering. Gov't Ex. 3. In referring to the "forgotten fact," the Magistrate Judge was referring to Lt. Young's recollection that it was Chief Lyford who had made the announcement. In any event, whether the announcement was made before or upon entering is immaterial. The Magistrate Judge's critical finding is "several seconds (five being the outside maximum)" elapsed from the time of the knock to the time of the entry. It is this finding in the totality of the circumstances that determines the constitutionality of the entry.2
This Court has performed a de novo review of the facts found by the Magistrate Judge and adopts the facts as set forth in the Recommended Decision with one exception. See United States v. Raddatz, 447 U.S. 667, 680 n. 7, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (). The finding that both Deputy Dow and Lt. Young testified about their meeting the day before the suppression hearing is amended to reflect only Lt. Young testified about their meeting.
The Defendants object to the Magistrate Judge's Recommended Decision on the grounds that the search violated the knock-and-announce rule incorporated into the Fourth Amendment, and no exigent circumstances justified the violation.
The Magistrate Judge found the following facts, which this Court adopts, relating to the execution of the warrant:
After an investigation and through aerial surveillance, law enforcement officers located a "large grow area" in an isolated part of Piscataquis County containing approximately 100 marijuana plants and some Pro-Mix potting soil. Over the course of a week, officers observed both a white Polaris ATV and a small black vehicle bearing registration plates GTOCRUZ loaded with Pro-Mix at the site. After the plants were confiscated, a local police officer informed the investigating officer that an ATV and a black car with the GTOCRUZ plates were seen parked behind the Knight's Landing Camp. Armed with this information, Deputy Sheriff Dow of the Piscataquis County Sheriff's Department obtained a search warrant.
At the time the warrant was executed, there were three law enforcement officers present. Deputy Sheriff Dow of the Piscataquis County Sheriff's Department and Chief Lyford of the Milo Police Department stepped up onto the porch of the Knight's Landing Camp to execute the warrant. Lt. Young of the Piscataquis County Sheriff's Department was a short distance away, off to the side of the...
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U.S. v. Rodrigue, 08-1359.
...findings and accepted without discussion the conclusion that the warrant was supported by probable cause.3 United States v. Sherman, 344 F.Supp.2d 223, 227 n. 3 (D.Me.2004). Evidence of the seized marijuana plants was introduced at II. LEGAL STANDARDS "In reviewing the district court's deni......