U.S. v. Warford

• Decision Date: 06 March 2006
• Docket Number: No. 05-2859.,No. 05-2698.,05-2698.,05-2859.
• Parties: UNITED STATES of America, Appellee, v. Deandra Sue WARFORD, Appellant. United States of America, Appellee, v. Phillip Whatley, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 836

UNITED STATES of America, Appellee, v. Deandra Sue WARFORD, Appellant.

United States of America, Appellee, v. Phillip Whatley, Appellant.

No. 05-2698.

No. 05-2859.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2005.

Filed: March 6, 2006.

COPYRIGHT MATERIAL OMITTED

Hugh Jarrett, argued, Fayetteville, AR, for appellant Warford.

Omar F. Greene II, argued, Federal Public Defender, Little Rock, AR, for appellant Whatley.

Kenneth Elser, argued, Asst. U.S. Attorney, Fort Smith, AR, for appellee.

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Deandra Sue Warford and Phillip Whatley entered conditional guilty pleas to manufacturing more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). They reserved the right to appeal the district court's denial of their motions to suppress evidence discovered in a search of their house and surrounding areas. The district court¹ determined that the limitation on statutory minimum sentences of USSG § 5C1.2 should not apply to Whatley and sentenced him to the mandatory minimum term of 60 months' imprisonment. Warford was sentenced to 24 months' imprisonment. Whatley and Warford appeal the denial of the motion to suppress, and Whatley appeals his sentence. We affirm.

I.

On August 18, 2004, Special Agents Ken Willock and Lori Lawson of the Arkansas State Police applied for and obtained a search warrant for property located at Route 5, Box 321, on Madison County Road 8030, where Warford and Whatley resided. The warrant authorized the police to search for "[m]arijuana, other illegal drugs, any items used in the manufacture and consumption of marijuana and other illegal drugs, [and] . . . any firearms, or money, which is being possessed illegally." (Appellee's Add. at 1, 6). The warrant was based on information provided by Millicent Morgan, who is a daughter of Warford and Whatley, and Millicent's husband, Jessie Morgan.

According to the affidavit, Millicent Morgan called Agent Willock on July 29, 2004, and stated that her father, Phillip Whatley, was involved in manufacturing and delivering marijuana and was a convicted felon in possession of firearms. Millicent stated that her father transported a large bag of marijuana to his son in Mississippi in 2003, and that, as a child, she helped her father sprout, plant, and water seeds at his home. On August 9, 2004, Agent Lawson met with Millicent, who also disclosed a history of alleged sexual abuse by her father. Agent Lawson investigated the account by researching Department of Human Services ("DHS") records, which substantiated the reported neglect and abuse, and by speaking to Millicent's maternal grandfather, who verified her story.

On August 10, 2004, Agent Willock met with Millicent and Jessie near Rogers, Arkansas. Jessie told Willock that on March 15, 2004, while he and Whatley were meeting at a motel in Springdale, Arkansas, Whatley showed him a black metal Smith and Wesson 9 millimeter semiautomatic handgun. Whatley then asked if Jessie had a weapon that he carried with him for protection. When Jessie replied in the negative, Whatley gave him a Smith and Wesson .40 caliber semiautomatic handgun, which Jessie showed the officer. Both Jessie and Millicent said that Whatley and Warford carried the 9 millimeter handgun in their two-year-old son's diaper bag, and Millicent stated that her father always has a gun with or near him.

According to the affidavit, on August 11, Jessie and Whatley were meeting in another motel room near Rogers, Arkansas, and Whatley told Jessie that he had an SKS assault rifle at his home. Jessie then asked to clean the 9 millimeter handgun. Whatley agreed, retrieved the gun from a diaper bag, allowed Jessie to clean it, and returned it to the bag. Agent Lawson met with Millicent and Jessie on August 12, and Millicent stated that her parents have a long history of scamming stores out of money, and that her father "never goes anywhere without a gun." (Appellee's Add. at 3). While acknowledging that she had not visited Whatley's property for seven years, Millicent told the agent that she believed Whatley was growing marijuana on the property, because she and Jessie had asked to visit, but her parents continually said the property is "not ready for company." She also said that her father had plenty of money, despite never holding a regular job.

On August 14, the affidavit states, Millicent told Agent Lawson that she had checked the diaper bag and the gun was still there. She also expressed concern that her younger sisters, who still lived with Warford and Whatley, were in danger of being sexually abused. Agent Lawson also discovered an outstanding warrant for Warford for a misdemeanor shoplifting charge, and noted that her criminal history included several prior arrests for theft. Whatley is a convicted felon with prior convictions for a violation of the Arkansas Hot Check Law, marijuana manufacturing, and possession of firearms.

Prior to obtaining the warrant, Agent Willock learned from Sergeant Robert York of the Arkansas State Police that on August 19, the marijuana eradication program, operated jointly with the Drug Enforcement Agency ("DEA"), would be doing a helicopter flyover of the county in which Whatley's property is located. Agent Willock obtained the warrant on August 18, and Sergeant York agreed to support Agent Willock's execution of the warrant with one aircraft and ground crew.

Agents executed the search warrant on the morning of August 19, 2004. The helicopter was making its way towards the Whatley property as the officers approached the residence. As the officers began a protective sweep of the residence, Agent Willock received word from Sergeant York in the helicopter that the eradication team had observed marijuana growing on the property. Agent Willock went outside to take photographs of plots around the property, while Sergeant York directed the officers on the ground to the marijuana plants. Assisted by Sergeant York's observation from the helicopter, the officers were able to locate and seize 482 marijuana plants growing in two heavily wooded areas approximately 100 to 150 yards from the house, and in a ditch beside the driveway approximately 30 yards from the residence.

Inside the residence, the officers discovered processed marijuana, marijuana seeds, and drug paraphernalia throughout the house. They also found an M-48A high caliber rifle, a .22 caliber rifle loaded with three rounds, and part of a non-working rifle behind the front door.

Based on this evidence, a grand jury charged Warford and Whatley with conspiring to manufacture marijuana and manufacturing more than 100 marijuana plants. Whatley also was charged with three counts of unlawful possession of a firearm as a convicted felon. The defendants moved to suppress the evidence seized during the search, and, after the district court denied their motions, each entered a conditional guilty plea to one count of manufacturing marijuana.

In denying the motion to suppress, the district court found that the officers adequately corroborated Millicent's identity as the defendant's child by researching DHS records and speaking to Millicent's grandfather, and that, because she was not an anonymous informant, the requirement of further verification of her "bona fides" did not apply. (Whatley Tr. at 70-71). The court reasoned that because Millicent was the daughter of Warford and Whatley, and provided information that they were still living at her childhood home, it was reasonable for the court to believe that Warford and Whatley in fact lived there. The court also concluded that because Whatley carried guns and showed them to his son-in-law, there was probable cause to believe he had guns at his home. The court ruled that even if the warrant was defective, in light of the "possible violations of the law with respect to drugs, possible weapons violations by Mr. Whatley, and perhaps violations of the rights of children," the officers executing the warrant had a good faith belief in its validity. (Whatley Tr. at 73-74). In the alternative, the court found that the evidence inevitably would have been discovered, because Sergeant York would have flown over the property even if Agent Willock had not obtained a warrant, and Sergeant York would have sought a warrant based on his observation of the marijuana plants.

II.

Warford and Whatley argue that there was not probable cause for the magistrate to issue the warrant, because the officers did not adequately corroborate the information provided by the Morgans, and because the information pertaining to the alleged marijuana growing operation was stale. Where a search is conducted pursuant to a warrant, the good faith exception to the exclusionary rule applies, and evidence should not be suppressed due to an absence of probable cause unless the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

In reviewing a district court's denial of a motion to suppress, we may consider the applicability of the good-faith exception to the exclusionary rule before reviewing the existence of probable cause. If the officers acted in good-faith reliance on a warrant, then there is no need to visit the underlying question of probable cause. United States v. Chambers, 987 F.2d 1331, 1334 (8th Cir.1993). We review the court's factual determinations for clear error and its legal conclusions de novo. United States v. Lynch, 322 F.3d 1016, 1017 (8th Cir.2003).

Probable cause exists when the affidavit sets forth sufficient facts to lead a prudent person to believe that there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)...