U.S. v. Wolfe

• Citation: 22 F.Supp.2d 627
• Decision Date: 01 September 1998
• Docket Number: No. Crim. 97-50065.,Crim. 97-50065.
• Parties: UNITED STATES of America, Plaintiff, v. Ronald Napoleon WOLFE, Sr., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 627

22 F.Supp.2d 627

UNITED STATES of America, Plaintiff, v. Ronald Napoleon WOLFE, Sr., Defendant.

No. Crim. 97-50065.

United States District Court, E.D. Michigan, Southern Division.

September 1, 1998.

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Saul Green, United States Attorney, by Mark C. Jones, Assistant United States Attorney, Flint, MI, for Plaintiff.

Kenneth G. McIntyre, Sinas Dramis, Lansing, MI, Donald E. Martin, Lansing, MI, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS FRUITS OF A STATE SEARCH WARRANT

GADOLA, District Judge.

Defendant has filed a motion to suppress the fruits of a state search warrant. Evidentiary hearings were held on the instant motion on July 30, July 31, and August 24, 1998. For the reasons set forth below, defendant's motion to suppress fruits of a state search warrant will be denied.

FACTUAL BACKGROUND

The search warrant at issue in the case at bar was based on a six-page affidavit prepared on December 19, 1996 by Daniel Garber, Chief Assistant Prosecutor for Livingston County. It was signed on December 23, 1996 by Detective Allan Perry, who was during the relevant time period, a Deputy with the Livingston County Sheriff's Department. Perry was engaged in an investigation of various larceny and fraud crimes in which the defendant and others were suspects.

Judge Michael K. Hegarty of the 53rd District Court for the State of Michigan issued the search warrant. It authorized a search of the defendant's entire premises in Howell, Michigan, including:

the residence and outbuildings commonly referred to as 5753 Fisher Road; said premises include[ ] a multi story log construction residence located on the west side of Fisher Road in Section 1 of Howell Township, Livingston County, a gray barn with a brown roof having living quarters in the upper story that is located South of the log constructed residence, a new pole barn with a dark shingled roof and OSB siding located southeast of the log constructed residence and a gray airplane hangar structure with a steel roof located north/northeast of the log constructed residence.

The property to be searched for and seized pursuant to the warrant included the following items:

[d]ocuments or evidence indicative of the ownership or occupancy of the above premises; insurance records including contracts, claim forms and payment forms; bales of hay; golf carts; records relating to building materials for the structures on the premises; shingle samples; building material samples; photographs; records relating to the purchase, ownership or registration of firearms; records relating to the possession, ownership or registration of vehicles, records or evidence relating to horse ownership, sales or veterinary treatment.

On December 23, 1996, officers from the Livingston County Sheriff's Department, Michigan State Police and Brighton State Police went to defendant's premises to assist in the entry of the premises and/or execution of the warrant. After entering the house, defendant was arrested. His wife, Marie Wolfe, was given a copy of the search warrant to review.

During the execution of the warrant, Perry went to the basement of defendant's residence where Perry located a large (approximately 10 feet by 17 feet) locked vault concealed behind a moveable shelf unit. Perry knew about this vault prior to the search. Officers asked defendant's wife for the combination to the vault. Marie Wolfe did not assist the officers, so they called the defendant. Defendant by that time had been arrested and taken from his home to the Livingston County Jail. Defendant provided the officers with the combination to the vault's door, after being denied the opportunity to consult with an attorney over the matter.

In the vault, the officers found and seized a long "plant growing light," a water pump, electric timers, a humidity gauge, 8 plastic pots and 17 marijuana growing plants. Also inside the vault the officers found scores of firearms. After locating receipts for only twelve weapons, the officers seized 86 firearms.

The guns seized on December 23, 1998 were later examined by the Federal Bureau of Alcohol, Tobacco, and Firearms (hereinafter "Bureau of ATF" or "ATF") which reported that they included: at least 13 unregistered automatic weapons; one unregistered sawed-off rifle; two unregistered pen guns; three unregistered silencers; and two stolen firearms.

Defendant, who is a Class III federally-licensed firearms dealer, ultimately was charged in federal court with 21 counts of firearms charges, including 18 counts of possession of unregistered firearms in violation of 26 U.S.C. § 5861(d), one count of possession of a short-barreled rifle in violation of 26 U.S.C. § 5861(d), one count of possession of a stolen firearm in violation of 18 U.S.C. § 922(j), and one count of failure to record a firearm transaction in violation of 18 U.S.C. § 922(m).¹

Presently before this Court is defendant's motion to suppress the fruits of the state search warrant. Specifically, defendant seeks suppression of the firearms upon which the charges in the present indictment are based.

ANALYSIS

Defendant raises a host of arguments in support of his motion to suppress the firearms. These include assertions that:

1. the affidavit was not properly sworn to by Detective Perry;

2. the affidavit contained false or misleading assertions of material fact;

3. the affidavit was not sufficient to support a finding of probable cause because it did not provide the magistrate with any basis for evaluating the credibility of the informants and did not allege any facts tending to establish the evidence of wrongdoing in the defendant's home;

4. the good faith exception to the warrant requirement is not applicable here because the magistrate acted as a "rubber-stamp" for the police and because the officers who executed the warrant did not rely in "good faith" on the warrant;

5. the search of the vault and seizure of the firearms were not otherwise valid absent a warrant since defendant did not voluntarily consent to the search of the vault;

6. seizure of the firearms was improper because the warrant did not provide for seizure of such items and because the plain view exception to the warrant requirement is inapplicable; and

7. M.C.L. § 780.656, "Breaking of doors and windows," was violated.

Each of these arguments will be analyzed and discussed seriatim.

1. DETECTIVE PERRY PROPERLY SWORE TO THE AFFIDAVIT.

Defendant contends that the search violated the Fourth Amendment since Detective Perry allegedly never swore to the document which provided the basis for Judge Hegarty's issuance of the search warrant. The Fourth Amendment specifically requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const., Amdt. 4 (emphasis added).

This Court finds that defendant has not met his burden of proving that Detective Perry was not duly sworn by Judge Hegarty. The Court is satisfied that Detective Perry attested to the truth of the contents of the "Affidavit For Search Warrant" in a telephone call to Judge Hegarty on the morning of December 23, 1996, prior to the time Judge Hegarty issued the search warrant. Telephonic oaths are permissible under Michigan law. See M.C.L. § 780.651; People v. Snyder, 181 Mich.App. 768, 772-74, 449 N.W.2d 703 (1989) (interpreting M.C.L. § 780.651 and holding that oath required to be taken by police officer requesting search warrant was not required to occur within presence of issuing judge, but could be given over the telephone).

Perry testified in this Court on July 30, 1998, that, although he does not have any independent recollection of the event, he believes that he called Judge Hegarty during the early morning hours of December 23, 1996. Perry testified that Judge Hegarty's procedure was to instruct Perry to raise his right hand and attest to the contents of the "Affidavit for Search Warrant" over the telephone. After taking the oath over the telephone, the affidavit and search warrant would either be faxed or delivered to Judge Hegarty for his signature. In this instance, Perry is convinced that the affidavit was delivered to Judge Hegarty for his signature, since Judge Hegarty's fax machine was broken.

Previously, when examined on this precise issue in state court, Perry testified that he personally swore to the affidavit at Judge Hegarty's residence in Hartland, Michigan on the morning of December 23, 1996. The Court does not find this contrary testimony to be accurate. Perry's current testimony was very credible. This Court is satisfied that Perry made a mistake when he testified earlier in state court that he personally took the affidavit to Judge Hegarty's home on December 23, 1996. Perry admitted that the reason he had earlier testified differently was that he was confusing the affidavit and warrant at issue with another affidavit and search warrant (possibly one for a trailer park on Grand River). The Court finds such an explanation plausible. The event at issue took place over two years ago and it is understandable that Perry's memory was not clear on this issue. In fact, Judge Hegarty conceded during his testimony on March 18, 1996 that his memory as to what transpired on December 23, 1996 was "hazy" as well, and that he, like Perry, could not recall whether Perry had been in his living room on December 23, 1996 and given the oath in person. Judge Hegarty recalled that Perry was in his living room on one occasion and that all the occasions "kinda blend together." Testimony of Judge Hegarty, March 18, 1996, p. 26.

Moreover, Perry's most recent version of the events is corroborated by the testimony of Deputies James Bolling and Michael Hawry. On March 11, 1998, these two deputies testified that they, not Detective Perry, took the affidavit to the home of Judge Hegarty, on Hope Lake in Brighton Township, on the morning of December 23, 1996....