United States v. Boyce

• Decision Date: 04 February 1985
• Docket Number: No. Crim. 4-84-89.,Crim. 4-84-89.
• Citation: 601 F. Supp. 947
• Parties: UNITED STATES of America, Plaintiff, v. William Walter BOYCE, Defendant.
• Court: U.S. District Court — District of Minnesota

601 F. Supp. 947

UNITED STATES of America, Plaintiff, v. William Walter BOYCE, Defendant.

No. Crim. 4-84-89.

United States District Court, D. Minnesota, Fourth Division.

February 4, 1985.

James M. Rosenbaum, U.S. Atty., and Paul A. Murphy, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.

Steven Meshbesher, Meshbesher, Singer & Spence, Minneapolis, Minn., for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on defendant's objections to the December 28, 1984 report and recommendation of the United States Magistrate. On November 8, 1984, defendant moved to suppress evidence seized pursuant to a search warrant executed on October 19, 1984. The Magistrate recommended denying this motion in a report and recommendation dated November 30, 1984. The Magistrate also concluded that defendant had not made a showing sufficient to warrant a Franks hearing. Defendant filed in camera objections to the November 30, 1984 report and recommendation. On December 13, 1984, the Court remanded the case to the Magistrate in light of the in camera documents defendant submitted with his objections. On remand, the Magistrate conducted a Franks hearing. The Magistrate next issued the December 28, 1984 report, recommending that defendant's suppression motion be denied. The Court will not adopt that report and will grant defendant's motion to suppress.

FACTS

On October 24, 1984, a grand jury indicted defendant for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982). The indictment was in large part based on the fruits of a search of defendant's residence.

Sergeant Ronald Johnson of the Minneapolis Police Department's Narcotics Squad, along with two other law enforcement officers, executed a search at defendant's residence on October 19, 1984. The search produced approximately nine ounces of cocaine and $3,600 in cash. The officers executed the search pursuant to a search warrant Johnson had obtained on October 19, 1984. The warrant was issued on the basis of Johnson's affidavit (hereafter search warrant affidavit) which stated in part:

On this date, 10/18/84, your affiant talked to a confidential, reliable informant who has proven to be reliable by supplying information over the past month to your affiant concerning Cocaine traffickers which as sic been independently corroborated to be factual in all instances by investigation. This confidential, reliable informant advised your affiant that within the past 72 hours, the informant has been in the residence at 4936 Nokomis Avenue South and observed a large quantity of Cocaine in the possession of Bill Boyce who was offering the Cocaine for sale.

Even though Johnson's affidavit stated that he spoke with the informant on October 18, 1984, no one disputes that the conversation actually took place on October 19, 1984.¹

The confidential informant Johnson was referring to in his affidavit was Christopher Hamilton. Johnson described his relationship with Hamilton in an affidavit sworn to on November 16, 1984.² In that affidavit, Johnson described his dealings with Hamilton prior to October 19, 1984 as follows:

5. It is my understanding that on or about October 1, 1984, Christopher Hamilton called Assistant U.S. Attorney Don Lewis and told Mr. Lewis that he feared that Joseph Sazenski was out to get him. Mr. Lewis referred Hamilton to me, since Lewis knew that I had previously investigated Mr. Sazenski.

6. Shortly thereafter, I received a telephone call from Mr. Hamilton who stated that he wanted to cooperate against Mr. Sazenski and other cocaine dealers. I then set up an appointment to meet with him.

7. On the same evening, Special Agent Bauer and I met with Mr. Hamilton in Minnetonka, Minnesota. During the interview, Mr. Hamilton described his involvement with Sazenski and others and stated that his girl friend, Shelly Wentz, was dealing directly with Joseph Sazenski. I had previously arrested Shelly Wentz on several occasions, one of which involved receiving cocaine in the mails from Colombia. Therefore, I was aware of Shelly Wentz's prior drug involvement.

8. During the same interview, I asked Mr. Hamilton when was the last time he used cocaine. He stated that he had used 3 ½ grams of cocaine the night before. Despite this, he was able to give me details concerning Shelly Wentz such as her address and her past activities, many of which were already known to me.

9. Inasmuch as it appeared that Mr. Hamilton had a serious cocaine habit, I suggested to him that he enter drug treatment. I told him that after he had dried up his cocaine habit, if he still wanted to cooperate, we still would work with him.

Johnson went on in the affidavit to tell of the information Hamilton revealed on October 19, 1984 concerning the defendant.

Although Johnson's affidavit states that Hamilton contacted Assistant U.S. Attorney Donald Lewis on or about October 1, 1984, the Court concludes that Hamilton contacted Lewis on October 4, 1984. This conclusion is slightly different from the Magistrate's proposed finding that Hamilton and Johnson first met "on or about October 1, 1984." December 28, 1984 Report and Recommendation at 3 (hereafter 2d R & R). The Court bases its finding on Hamilton's testimony that he had contacted Lewis on October 4, 1984. December 19, 1984 Transcript at 105-06 (hereafter 2d Tr.). Hamilton also testified that Hamilton had met Johnson no more than two weeks before Hamilton implicated the defendant on October 19, 1984. 2d Tr. at 112.³ Johnson himself testified that on October 19, 1984, he had known Hamilton for only two or three weeks. November 15, 1984 Transcript at 49 (hereafter 1st Tr.). The record also contains indications that Hamilton first contacted Johnson one week after Hamilton spoke with Lewis on October 4, 1984, which would mean that the Johnson-Hamilton meeting took place only one week prior to October 19, 1984. See 2d Tr. at 72-74, 107. One point is unquestioned, Johnson and Hamilton first met subsequent to Hamilton's first contacting Lewis. Therefore, the Court concludes that the time between the initial Johnson-Hamilton meeting and Johnson's swearing to the search warrant affidavit was no longer than two weeks.

Subsequent to Christopher Hamilton's contacting Lewis, but prior to Christopher Hamilton implicating defendant on October 19, 1984, Christopher Hamilton's brother Gregory Hamilton spoke with Johnson regarding Christopher. Gregory wanted to know if he should take seriously certain statements that Christopher made about Christopher's life being in danger. Gregory testified that Johnson stated that Christopher "was the typical cocaine addict, he was all strung out, he wasn't making any sense, and he didn't have any information that he Johnson could use." 2d Tr. at 74-75. Gregory also testified that Johnson said Christopher "didn't have enough information that could do anybody any damage." 2d Tr. at 75.

On October 19, 1984, Christopher Hamilton was arrested. During interrogation on that day, Hamilton told Johnson that the defendant was Hamilton's supplier. Hamilton also told Johnson that he had recently (within the last three days) made a cocaine purchase from defendant at defendant's residence. At the time Hamilton made these statements, he had been using cocaine for three consecutive days. 2d Tr. at 105. In addition, Hamilton had not slept for the past four days. 2d Tr. at 113. The Magistrate concluded that when Hamilton provided Johnson with information on October 19, 1984, Hamilton was "under the influence" or at least "suffering from the effects of cocaine" use. 2d R & R at 3. The affidavit of Special Agent Michele Leonhart, who was also present during one of the Hamilton interrogation sessions, supports the Magistrate's conclusions. The Court agrees with the Magistrate that Hamilton was under the influence of cocaine on October 19, 1984. It is also clear that Hamilton was very emotionally upset on that day. Again, Leonhart's affidavit supports this conclusion, as does the affidavit and testimony of Probation Officer Pamela McNulty. McNulty interviewed Hamilton on October 19, 1984, and she testified that Hamilton was hyperactive, nervous, anxious, and that he cried at inappropriate times. 2d Tr. at 131-32.

Although Hamilton was under the influence of cocaine on October 19, 1984, the Magistrate concluded that Hamilton nevertheless gave appropriate answers in response to questions of McNulty and law enforcement officials. The affidavit of Leonhart, and the affidavit and testimony of McNulty support this conclusion. 2d Tr. at 134. Therefore, the Court finds that Hamilton was able to give appropriate answers to questions on October 19, 1984, even though Hamilton was obviously quite upset and under the influence of cocaine. Aware of Hamilton's condition, the law enforcement officers sent Hamilton to a detoxification center on October 19, 1984. 1st Tr. at 34. Thus, instead of making a first appearance before a magistrate on October 19, 1984, Hamilton did not make a first appearance until October 22, 1984.

Sometime after Hamilton implicated defendant, defendant began to suspect that Hamilton was the confidential informant referred to in Johnson's search warrant affidavit. After the Magistrate issued his first report and recommendation, defendant submitted in camera objections to the Magistrate's report. Included in the submission was a two-page handwritten statement signed by Hamilton. (A witness attested to the statement, but the document was not notarized.) Defense counsel's investigator, accompanied by a close friend of Hamilton, obtained this statement on November 13, 1984 while Hamilton was staying at a drug treatment center in St. Mary's Hospital. In this statement, Hamilton said that he had never mentioned defendant's name to Johnson on October 19, 1984. Defendant submitted this statement to the Court after the Magistrate issued his first report and...