U.S. v. Simpson

• Decision Date: 27 September 1996
• Docket Number: No. IP 96-CR-0078 H/F.,IP 96-CR-0078 H/F.
• Parties: UNITED STATES of America, Plaintiff, v. Damon SIMPSON, Defendant.
• Court: U.S. District Court — Southern District of Indiana

944 F.Supp. 1396

UNITED STATES of America, Plaintiff, v. Damon SIMPSON, Defendant.

No. IP 96-CR-0078 H/F.

United States District Court, S.D. Indiana, Indianapolis Division.

September 27, 1996.

COPYRIGHT MATERIAL OMITTED

Major Coleman, Office of the United States Attorney, Indianapolis, IN, for plaintiff.

Patrick E. Chavis, III, Chavis & Chavis, Indianapolis, IN, for defendant.

ENTRY ON DEFENDANT'S MOTION TO SUPPRESS

HAMILTON, District Judge.

Defendant Damon Simpson has been charged with possession with intent to distribute approximately 173 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Simpson has moved to suppress the cocaine and any other evidence found by police in his apartment. Simpson contends that the evidence was seized pursuant to an invalid search warrant in violation of his rights under the Fourth Amendment to the United States Constitution. Both sides filed briefs and the court conducted an evidentiary hearing on August 23, 1996. The court continued the hearing on August 26, 1996, when both sides had an opportunity to call additional witnesses. They chose not to do so, and presented only argument. The motion to suppress is now ripe for decision, and this entry states the court's findings of fact and conclusions of law to comply with Fed. R.Crim.P. 12(e).

The defendant's motion raises concerns at the core of the Fourth Amendment: the search of a private residence pursuant to a search warrant. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Two basic principles of Fourth Amendment law are central to the court's decision.

First, searching two or more separate apartments in the same building is no different than searching two or more completely separate houses. E.g., United States v. Hinton, 219 F.2d 324, 326 (7th Cir.1955). As discussed in detail below, when the police applied for the warrant to search the building that contained defendant Simpson's apartment, the police had ample reason to know that the building contained several separate residences and was not the "single-family residence" they described in their application for the search warrant.

Second, the decision to issue a search warrant must be made by a neutral judge. E.g. McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). For that fundamental protection to have any value, the police must be candid with the judge and tell the judge about the facts they know that are material to determining probable cause and the scope of the probable cause. In this case, the police told the judge who issued the warrant only about one $20 controlled buy of cocaine at the front door of the building they described for him as a "single-family residence." They chose not to tell the judge about their prior visit to the building, and they chose not to tell him about the information they obtained on that visit indicating that the building contained several separate residences. They also did not tell the judge about the information they had obtained on that visit that might have allowed the judge to conclude that, despite the separate residences, the entire building was actually being used as a single unit under the dominion and control of the target of their investigation. See, e.g., United States v. Butler, 71 F.3d 243, 249-50 (7th Cir.1995). Because the police provided the judge with information that they should have known was wrong and that was critical to determining the scope of the search warrant, the warrant and search of Simpson's apartment were invalid. In addition, because the police were not candid with the judge, and because their failure to provide the relevant accurate information was at least in reckless disregard of the truth, the good faith exception to the exclusionary rule does not apply here. Accordingly, the fruits of that search must be suppressed, and defendant's motion to suppress will be granted.

FINDINGS OF FACT

On April 8, 1996, Detective Walter Sanders of the Indianapolis Police Department (IPD) submitted a probable cause affidavit to Marion Superior Court Judge Richard Sallee stating that he had good cause to believe that cocaine was being kept, used and sold at a residence on 624 West Eugene Street in Indianapolis. The affidavit stated that the residence was under the control of one Cotriena Embers. Sanders stated in the affidavit that he based his belief on information from a reliable confidential informant who had purchased from Embers a substance described as cocaine at the Eugene Street address on April 6, 1996. The affidavit further stated that Embers had told the informant the substance was cocaine and that Sanders knew the informant was a past user of cocaine and was familiar with its appearance and packaging for sale. Based on this information, Detective Sanders requested, and Judge Sallee issued, a search warrant for the residence at 624 West Eugene Street and for Embers' person. Both the affidavit and the warrant described the structure as a "three (3) story single-family residence" consisting of "a living room, dining area, kitchen, bedroom(s) and bathroom(s)."

A. The Building at 624 West Eugene Street

The building at 624 West Eugene Street is a brown three-story structure that looks like a single-family house from the outside. It has one front door. In the back there is a wooden exterior stairway that leads to small exterior landings on the second and third floors. From the outside of the building, there are no signs, such as multiple doorbells, mailboxes, or utility meters, to indicate that the building is anything other than a single-family dwelling.¹

The interior of the building includes, however, five or six separate apartments. The front door leads into a hallway. Immediately to the right is an opening into a sitting area. On the right side of the hallway just beyond the sitting room are stairs to the basement and to the second floor. Further along the hallway on the first floor there is a door on each side of the hallway. Both doors have locks on them. One is marked "A" with black electrical tape, and the other is marked "C." The markings on the doors are not readily visible to someone standing just inside the front door. Apartments "A" and "C" take up the rest of the first floor. Each contains a kitchen, and at least one contains a bathroom. Simpson testified that both of the first-floor apartments were occupied as of April 8, 1996; a Mike Matthews lived in "A" and Simpson said he did not know who lived in "C."

The second floor contains a common kitchen and bathroom near the top of the stairs from the first floor. The second floor contains either three bedrooms or a living room and two bedrooms. At least two bedrooms have separate locks, and the three doors are marked with letters "B," "D," and "E." According to Simpson, one of these bedrooms was occupied by Steve Shepard, the resident caretaker of the building, and his girlfriend Wanda Weaver. Cotriena Embers lived in another second-floor room. Tr. 20. Just off the second-floor kitchen is a door, behind which is a stairway leading to Simpson's apartment on the third floor. The third floor contains a bedroom, bathroom, kitchen area, and living room. Tr. 7, 15. The door leading to the stairway is the only internal door to the third-floor apartment; there is no door at the top of the stairs. Tr. 16. There are two locks on the door, which is also marked with a three-inch letter "F" made with black electrical tape. Tr. 29-30, 46. Simpson testified that he did not have a key to any of the other apartments' doors, and there is no evidence directly to the contrary.² Simpson's apartment occupies the entire third floor. In addition to the stairs leading to his apartment, there is another door leading outside to the small balcony at the top of the exterior stairs, enabling one to enter and exit the third-floor apartment without passing through the rest of the building.

B. The Controlled Buy and the Warrant Application

On Saturday, April 6, 1996, a confidential informant contacted Detective Sanders with information that cocaine was being sold from 624 West Eugene Street. Sanders came into work and arranged for and supervised a controlled buy of $20 worth of cocaine at 624 West Eugene Street. The confidential informant went to the front door of the house and stayed at the front door as she made the purchase from Cotriena Embers. The informant stayed in sight of Sanders at all times and did not enter the house.

Sanders prepared a probable cause affidavit and submitted it to Judge Sallee on Monday, April 8, 1996. The affidavit requested a search warrant for 624 West Eugene Street and described the building as

a three (3) story single-family residence that is brown with beige trim and sits between 618 W. Eugene Street and 630 W. Eugene Street. Said residence consists of a living room, dining area, kitchen, bedroom(s) and bathroom(s). I request this search to include all rooms, closets, drawers, shelves, and personal effects contained therein and thereon where Cocaine, an extract of Coca may be concealed. I further request this search to include the person of Cotriena Embers B/F.

Judge Sallee issued a search warrant that contained an identical description of the building (as well as the quoted sentences in the probable cause affidavit beginning "I request" and "I further request").

C. The Police Visit on March 18, 1996

On March 18, 1996, six armed private agents and bondsmen working for a bonding agency went to the 624 West Eugene Street address to serve a "failure to appear" warrant on one Robert Harris. Tr. 74-75, 81. One of these agents was Todd Clark, who testified...