U.S. v. Sherrell

• Decision Date: 18 November 1992
• Docket Number: Nos. 92-1145,92-1243,s. 92-1145
• Citation: 979 F.2d 1315
• Parties: UNITED STATES of America, Appellee, v. Bob SHERRELL, Appellant. UNITED STATES of America, Appellee, v. Norman DART, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1315

979 F.2d 1315

UNITED STATES of America, Appellee, v. Bob SHERRELL, Appellant.

UNITED STATES of America, Appellee, v. Norman DART, Appellant.

Nos. 92-1145, 92-1243.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 18, 1992.

Decided Nov. 18, 1992.

W. Swain Perkins, Thayer, Mo., argued, for appellant.

Terry Derden, Little Rock, Ark., argued, for appellee.

Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Bob Sherrell and Norman Dart appeal from their respective convictions for possession with intent to distribute methamphetamine, a violation of 21 U.S.C. § 841, and for use of a firearm during a drug trafficking offense, a violation of 18 U.S.C. § 924(c). The sole issue before us is whether the district court ¹ correctly denied Sherrell and Dart's joint motion to suppress evidence. We affirm.

I.

On March 13, 1991, Special Agent Larry Carver ² of the Drug Enforcement Administration (DEA) obtained a search warrant from the magistrate judge ³ authorizing him to search the "Sherrill [sic] Trucking facility including all buildings and vehicles located at Route 1 Box 483, Mammoth Springs, Arkansas."

Carver's affidavit submitted in support of the application for the search warrant set forth the following information gathered by law enforcement authorities during their two-year investigation. The investigation began in May 1989 when the Fulton County, Arkansas Sheriff's Department received a telephone call from a person who claimed to be Bob Sherrell's ex-father-in-law. The caller told the sheriff that Sherrell earned his livelihood by hauling drugs in his trucks. Subsequent visits to the premises by a Fulton County surveillance team in late 1989 confirmed that Sherrell was not conducting any trucking business but had constructed a large shop building on the property. On January 17, 1991, Carver flew over the property at a height greater than 3,000 feet in a DEA plane equipped with Forward Looking Infrared Radar (FLIRR). FLIRR detects objects by sensing temperature variations in the landscape within its field of vision. The FLIRR readings showed heat emanating from the shop building. On February 15, 1991, the DEA subpoenaed United Parcel Service's records for Sherrell Trucking. The subpoenaed information revealed that Sherrell Trucking had received multiple deliveries from companies associated with indoor marijuana cultivation. ⁴ On March 7, 1991, an Arkansas state police investigator interviewed a cooperating individual (CI) concerning Sherrell. The CI reported that the property was inhabited. (More specifically, the affidavit stated that "[t]he CI stated that anytime he went upstairs that one of the people living on the property would accompany him.") The CI further informed officers that Dart was currently travelling to Harrison, Arkansas to sell a one-pound package of marijuana, which the CI had seen. Carver also entered the property twice prior to the execution of the search warrant, although he testified that he had never come within fifty yards of any residences. On March 11, 1991, the DEA subpoenaed Sherrell Trucking's electric power usage records. Carver stated that in his opinion the power usage of Sherrell's large shop building was consistent with the existence of an indoor marijuana-growing operation.

The Sherrell Trucking facility is located on a country road in a rural area in north Arkansas. Commercial signs on the country road advertise the sale of ice and other items. The entire property has a single address, and all of the utilities are in Bob Sherrell's name. The property is not physically subdivided, except for a dilapidated hog wire fence. The property contains more than thirteen buildings, all of which are connected by an intercom system. No other farms are nearby.

On March 15, 1991, Arkansas state police officers and Carver executed the search warrant. The officers discovered a small rock house on the property, where Norman and Denise Dart resided. The officers discovered in the Dart residence $31,380 in cash, plastic bags of cocaine and methamphetamine mixed together, marijuana, and a number of assault firearms. In the sheds next to the Dart residence, the officers discovered $3,280 in cash, marijuana seeds and growing paraphernalia, and more than 512 grams of methamphetamine.

The officers also located a double-wide trailer, which was the residence of Bob Sherrell and his family. The officers discovered $20,000 in cash, four firearms, 367 grams of methamphetamine, and more than 100 grams of cocaine in the trailer.

In total, the officers seized thirty-eight weapons, 890.739 grams of methamphetamine, 118.754 grams of cocaine, 83.8 grams of marijuana, records relating to residency and indoor marijuana-growing techniques, tax returns, and photographs from the various buildings located on the property. These items comprise the evidence that Sherrell and Dart sought to exclude in their suppression motion.

Following the district court's denial of the suppression motion, Sherrell and Dart entered conditional guilty pleas under Federal Rule of Criminal Procedure 11, thus reserving their right to appeal the district court's denial of the suppression motion.

II.

Our review of the district court's denial of the motion to suppress is governed by several well-established principles. Under Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983), the task of a magistrate issuing a search warrant is to determine whether, in the light of all the circumstances set forth in the affidavit, " 'there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.' " United States v. Lueth, 807 F.2d 719, 724 (8th Cir.1986) (quoting Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citations omitted)). The magistrate's determination of probable cause is entitled to great deference. Lueth, 807 F.2d at 724-25. We will uphold the district court's disposition of the motion to suppress unless it is clearly erroneous. Id. at 725.

Appellants argue first that the search warrant was invalid because its description of the place to be searched lacked the particularity required by the Fourth Amendment.

The Fourth Amendment requires that warrants describe the "place to be searched" with particularity. A search warrant's description satisfies the Fourth Amendment if it is " 'sufficiently definite so as to enable the officer with the warrant to reasonably ascertain and identify the place to be searched....' " United States v. Caves, 890 F.2d 87, 92 (8th Cir.1989) (citations omitted). We observed further in Caves that "[t]he underlying measure of adequacy in the description is whether given the specificity in the warrant, a violation of personal rights is likely." Id. (citations omitted). In United States v. Ellison, 793 F.2d 942, 947 (8th Cir.1986), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986), we observed that the "test for determining the adequacy of the description of the place to be searched is whether it enables 'the executing officer to locate and identify the premises with...