U.S. v. Wiseman, 00-40096-01-SAC.

• Citation: 158 F.Supp.2d 1242
• Decision Date: 06 July 2001
• Docket Number: No. 00-40096-01-SAC.,00-40096-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. John R. WISEMAN, Defendant.
• Court: U.S. District Court — District of Kansas

158 F.Supp.2d 1242

UNITED STATES of America, Plaintiff, v. John R. WISEMAN, Defendant.

No. 00-40096-01-SAC.

United States District Court, D. Kansas.

July 6, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James A. Brown, Office of U.S. Atty., Topeka, KS, for United States.

Melody J. Evans, Office of Federal Public Defender, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

Defendant John R. Wiseman has been charged with three counts of attempted manufacture of methamphetamine, occurring on February 20, 2000,¹ February 25, 2000, and May 13, 2000. This case comes before the court on two discovery motions of defendant, and two motions to suppress. At the evidentiary hearing held on June 22, 2001, the parties submitted on the briefs defendant's motion to suppress the search of his cellular phone, and the court took evidence regarding defendant's motion to suppress his custodial statements. After the evidence was presented, defendant's counsel stated her intent to limit the suppression motion to statements made by defendant on February 25, 2000.

FACTS

The facts as established at the hearing follow. On February 20, 2000, a Kansas Department of Wildlife and Parks Officer contacted Labette County Sheriff's Department Detective Scott Higgins to advise that he had found some trash which may have been from a methamphetamine lab. Det. Higgins arrived and observed numerous items in various trash bags, including items commonly associated with the manufacture of methamphetamine. Inside one of the trash bags was a cardboard box containing some items and chemicals. The label on that box was addressed to the defendant at 10104 Woodson Road, Oswego, Kansas, the residence of Michelle and Bryan Collins.

On February 23, 2000, officers executed a search warrant at 10104 Woodson Road, Oswego, Kansas. During the search, officers located numerous components of a clandestine methamphetamine lab inside the residence, in the yard, and in a barn.

Defendant was not at the residence at the time of the search, but drove by, and was apprehended by law enforcement officers. At the time of defendant's arrest, methamphetamine was found on his person and in his vehicle. Defendant was interviewed by KBI Agent Hutchings, who Mirandized defendant. Defendant told Hutchings that he had been taught a trick or two about how to cook methamphetamine, but did not know anything about the lab at the residence.

On February 24, 2000, Agent Holsinger applied for and received a warrant to search the cellular phone that was located in defendant's vehicle at the time of his arrest. After seizing the phone, Agent Holsinger retrieved all the numbers and names from the address book as well as messages that were saved in the phone's memory.

The following day Agent Holsinger went to the Labette County jail, where the defendant was being held, for the purpose of delivering a copy of the executed search warrant to him. While the defendant was in custody, a conversation was had between the two, but defendant was not Mirandized at that time.

On September 10, 2000, Det. Higgins stopped the defendant for speeding in Oswego, Kansas, and at which time methamphetamine was found in defendant's vehicle. Defendant was Mirandized at the scene, and was Mirandized again when he was interviewed by Det. Higgins and Agent Holsinger. During that interview, defendant admitted, among other matters, that he was involved in all of the methamphetamine lab cases which they had discussed.

Other facts relevant to the motions are included in the analysis which follows.

I. Motion to Suppress Search re: Cellular Phone (Dk. 25).

When defendant was arrested on or about February 22, 2000, an inventory search of his truck revealed a cellular phone on the seat of the truck. Defendant does not challenge the legality of the inventory search. On Feb. 24, 2000, Agent Tim Holsinger swore out an affidavit in support of a search warrant to search the cellular phone in defendant's truck, received a search warrant, and retrieved information from defendant's cellular phone. Defendant has moved to suppress the search of the cellular phone seized from his truck, alleging solely that no probable cause existed to support issuance of the search warrant because there was no nexus between the phone and any methamphetamine manufacture.

General Law—Probable Cause

Generally, a search must be made pursuant to a warrant based on probable cause. U.S. Const. amend. IV. The reviewing court gives "great deference" to the issuing judge's determination of probable cause, for it is a determination based on common sense. United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997). The issuing judge must make a practical, common-sense determination from the totality of the circumstances presented whether 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). The issuing judge is expected to draw reasonable inferences from the affidavits. See United States v. Edmonson, 962 F.2d 1535, 1540 (10th Cir. 1992).

The reviewing court will uphold that determination if the supporting affidavits provide a substantial basis for finding that probable cause existed. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Finnigin, 113 F.3d at 1185. "In applying the test enunciated in Gates, this Court has stated that the `affidavit' should be considered in a common sense, nontechnical manner ..." Edmonson, 962 F.2d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir.1982) (citation omitted)).

"[P]robable cause is a fluid concept —turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct. 2317. The Supreme Court has found it sufficient to say that probable cause is more than a mere suspicion, but considerably less than what is necessary to convict someone. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); see United States v. Wicks, 995 F.2d 964, 972 (10th Cir.1993) ("The existence of probable cause is a `common-sense standard' requiring `facts sufficient "to warrant a man of reasonable caution in belief that an offense has been committed."'") (quoting United States v. Mesa-Rincon, 911 F.2d 1433, 1439 (10th Cir.1990) (quoting Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)), cert. denied, 510 U.S. 982, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993)).

Probable cause to search a location does not depend on direct evidence or personal knowledge that evidence or contraband is located there. United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). The affidavit need not aver that criminal activity actually occurred in that location. See United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir.1992). It is enough when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. Hargus, 128 F.3d at 1362. This nexus "may be established through ... normal inferences as to where the articles sought would be located." United States v. Freeman, 685 F.2d 942, 949 (5th Cir.1982). "[C]ourts often rely on the opinion of police officers as to where contraband may be kept." $149,442.43 in U.S. Currency, 965 F.2d at 874 (citations omitted).

Good Faith Exception

In United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court pronounced "that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." 468 U.S. at 918, 104 S.Ct. 3405. "The engine that drives Fourth Amendment protection is prevention and deterrence." United States v. McCarty, 82 F.3d 943, 949 (10th Cir.), cert. denied, 519 U.S. 903, 117 S.Ct. 257, 136 L.Ed.2d 183 (1996).

Thus, "where the officer's conduct is objectively reasonable," that is, the officer acts with "objective good faith" in obtaining the warrant from a magistrate and in executing the warrant within its scope, "there is no police illegality and thus nothing to deter." Leon, 468 U.S. at 919-21, 104 S.Ct. 3405. It is the "magistrate's responsibility to determine whether the officer's allegations establish probable cause." 468 U.S. at 921, 104 S.Ct. 3405. "In the ordinary case, the officer cannot be expected to question the magistrate's probable-cause determination." Id. Indeed, there is a "`presumption created in Leon that when officer relies upon a warrant, the officer is acting in good faith.'" United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993) (quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985)).

In applying the Leon exception, the court understands that the:

"`good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization.' ... To answer this `objectively ascertainable question,' we are to consider `all of the circumstances,' and assume that the executing `officers have a reasonable knowledge of what the law prohibits.'"

United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir.1993) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir.1988) (quoting in turn Leon, 468 U.S. at 919, 104 S.Ct. 3405)), cert. denied, 511 U.S. 1045, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994). "[T]he reviewing court must examine `the text of the warrant and the affidavit to ascertain whether the agents might have reasonably presumed it to be valid.'" McKneely, 6 F.3d at 1454 (quoting United States v. Corral-Corral, 899...