U.S. v. Ware
| Citation | 154 F.Supp.2d 1016 |
| Decision Date | 13 July 2001 |
| Docket Number | No. CRIM. A. 3:00CR-59-H.,CRIM. A. 3:00CR-59-H. |
| Parties | UNITED STATES of America Plaintiff v. Eulric WARE Defendant |
| Court | U.S. District Court — Western District of Kentucky |
Monica Wheatley, United States Attorney's Office, Louisville, KY, for Plaintiffs' Counsel.
Stephen H. Miller, Virginia F.B. Hood, Louisville, KY, for Defendants' Counsel.
Defendant Eulric Ware seeks to suppress much of the evidence relating to his indictment for possession of cocaine. Magistrate Judge Gambill conducted a suppression hearing and issued findings of fact and conclusions of law recommending that the motion to suppress be denied in its entirety. Ware has filed numerous objections to that recommendation.
The Court departs from the Magistrate Judge's recommendation in two areas. The first concerns the validity of the supposed anticipatory warrant used to justify the search of Ware's apartment after his arrest. The second concerns whether law enforcement officers sufficiently broke off their interrogation of Defendant after he requested counsel. If not, Defendant's subsequent incriminating statements during the interrogation are inadmissible.
This Court now reviews Ware's objections de novo. See United States v. Leake, 95 F.3d 409, 416 (6th Cir.1996); 28 U.S.C. § 636(b)(1) (2000).
The Court has expanded upon the extensive factual findings of the federal magistrate judge due to the importance of the facts in this analysis. As to all but a few material facts, the parties and the magistrate judge agree.
Detective Dotson, a member of the Airport Interdiction Unit of the Louisville Metro Narcotics Unit, noticed a suspicious package early in the morning of February 8, 2000. The hand addressed and heavily taped Federal Express package was shipped overnight from Dora Reeves in Daytona Beach, Florida to David Jones in Louisville, Kentucky. Detective Dotson, a K-9 handler for Metro Narcotics, then placed the package with several other packages and examined them all with his drug dog, who was trained to signal the potential presence of controlled substances. The drug dog alerted on the David Jones package and Detective Dotson then paged Detective Nunn and took the package to the Airport Interdiction Unit's office.
When he arrived, Detective Nunn drafted a state search warrant to open the package and stated in his affidavit that the drug dog had alerted on the package, the package contained a handwritten label and was heavily taped, and the package originated from a source city of illegal narcotics. Detective Nunn also drafted a second state warrant to install an electronic tracking device in the package. In his supporting affidavit, Detective Nunn stated the following:
This Affidavit concerns a parcel, copy of the mailing label attached. I am concurrently, by separate application, requesting the issuance of a search warrant for the subject parcel. That affidavit is incorporated herein by reference and is attached. If and when that warrant is issued, I will open the parcel and conduct a field test for the presence of any controlled substance. If the test is positive, all or a portion of the substance will be removed. I, or another Metro Narcotics Detective will then, functioning as a Parcel Carrier, deliver the parcel to the designated address.
If and when the parcel is opened pursuant to a search warrant applied for by separate application, I desire to install in it a device which transmits a radio tone on Metro Narcotics Unit radios. The audible tone occurs approximately every five (5) seconds in the monitor mode. This will allow Metro Detectives and other law enforcement officers to follow the parcel if it is moved from the place of delivery before it is opened. This is necessary as the individual who accepts or receives the parcel may not be the person for whom it is ultimately intended.
The device's alarm mode will activate when the parcel has been opened and the contents removed. The alarm mode is an audible tone twice every second. Activation of the alarm mode will assist in identifying the individual to whom the parcel was intended.
Once the parcel has been opened, discovery of the electronic tracking device is highly likely. This will necessitate immediate recovery of the device and the contents of the parcel before they are destroyed, secreted, consumed and/or transported by another individual. I, therefore, desire to install for a period of three (3) days and seek authorization to enter the residence, structure, and/or vehicle of the person or persons who have custody of the parcel when the device enters the alarm mode or once the beacon transmitter ceases transmitting, as loss of a device may occur after it ceases transmitting.
The warrant gave "authority to enter any such residence, structure, or vehicle to seize the parcel and contents thereof of [sic] the beeper signals indicate that the FedEx parcel has been opened or if the device ceases transmitting." Detective Nunn attached a copy of the FedEx air bill and an affidavit from Detective Dotson stating the drug dog's training and experience as well as verifying that the dog alerted on the suspect package. A state court judge signed both warrants prepared by Detective Nunn ("the Nunn warrants") at 9:30 a.m. that morning.
After the Nunn warrants were signed, Metro Narcotics detectives then opened the package and found a shoe box with two high-top basketball shoes. Inside each shoe, the detectives found about one fourth of a kilo of what appeared to be cocaine. Field testing verified that the substance was likely cocaine. The detectives removed all but about one gram of the cocaine, installed the electronic tracking device, and resealed the package.
While the detectives prepared the package for delivery, Detective Napier drafted a search warrant ("the Napier warrant") for the residence on the package label, 1426 South First Street, Apartment 3. In the affidavit, Detective Napier stated:
[H]e has and there is reasonable and probably grounds to believe and affiant does believe that there is now on the premises ... cocaine and/or any other illegal or controlled substance observed during the legal scope of the search; also anything used to cut, measure, or weigh any such illegal or controlled substance, any financial records, profits, monies or properties derived from the sale of such illegal or controlled substances.
. . . . .
Affiant has been an officer in the aforementioned agency for a period of 13 years and the information and observations contained herein were received and made in his capacity as an officer thereof.
On the 8th day of February, 2000, at approximately 9:47 a.m., affiant received information from Detective Brian Nunn of Jefferson County Metro Narcotics that he caused a state search warrant to be executed on Federal Express parcel # 818036600446. This package is addressed to David Jones, 1426 So. 1st Street Apt # 3, Lou., Ky. 40208. This package was found to contain approximately (1) one pound of cocaine. On 02-08-2000 a controlled delivery of this parcel will be attempted. Metro detectives will send in only a small portion of the illegal substance. This is to assure that all of the evidence is not destroyed. All of the above occurred in Louisville, Jefferson County Kentucky.
Acting on the information received, affiant conducted the following independent investigation:
— A check in the crisscross does not specify which apartments tenants are associated with.
A different state court judge signed the Napier warrant at 10:07 a.m.
That morning the detectives attempted a controlled delivery to the address listed on the parcel. Detective Dotson, dressed as a FedEx courier, made the first delivery attempt. After knocking on the door and receiving no response, a tenant of another apartment stated that "Ricco" was in school and would be back later in the day. Detective Dotson returned to attempt delivery again at 2:35 that afternoon, and Ware answered the door. Ware accepted the package by signing "David Jones" and returned to his apartment.
After a few minutes, Ware left his apartment, looked around the apartment and the street, and left in his car. After a very short time, Ware returned to the apartment. A few minutes later, Ware repeated this same behavior, looking around and going for a short drive. Given the short nature of his drive, the detectives concluded that he drove around the block to look for any surveillance or police activity. Ware then left the apartment carrying a Lazarus department store bag, got in his car, and drove south on First Street. At the same time, the surveillance officers notified the detectives that the beacon transmitter was being moved. Detectives Nunn and Napier followed Ware south.
The detectives followed Ware to Third Street, where he suddenly stopped his car and scrutinized those cars that drove past, including the vehicle of Nunn and Napier. Ware then drove to the University of Louisville and pulled into a semi-circular driveway in front of a campus building. Unmarked police vehicles blocked Ware's car from both sides and officers removed Ware from his car and placed him face down in the street. The officers then frisked and handcuffed Ware and Detective Napier read Ware his Miranda rights. Detective Nunn then saw the Lazarus bag sitting on the rear seat of the car. He opened the door and removed the bag, finding the unopened FedEx package inside.
The officers then brought Ware back to his apartment on South First Street. The officers did not obtain consent to search the apartment. Instead, they relied on the Napier warrant.1 Eight officers searched the two bedroom apartment and removed items from both bedrooms and the common areas. Officers seized a seventy-ounce digital scale, a ten-pound scale, and four boxes of "baggies" from the kitchen "personal papers" from the west bedroom; "personal...
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U.S. v. Monson
...One district court outside this circuit has held that a warrant similar to the one in this case was invalid. United States v. Ware, 154 F.Supp.2d 1016, 1028–29 (W.D.Ky.2001) (admitting that a “single word or two” might have been sufficient to make the warrant valid). On appeal, however, the......
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USA v. Monson
...One district court outside this circuit has held that a warrant similar to the one in this case was invalid. United States v. Ware, 154 F. Supp. 2d 1016, 1028-29 (W.D. Ky. 2001) (admitting that a "single word or two" might have been sufficient to make the warrant valid). On appeal, however,......