United States v. Ellis

• Decision Date: 19 December 2012
• Docket Number: Case No. 1:12–CR–91.
• Citation: 910 F.Supp.2d 1008
• Parties: UNITED STATES of America, Plaintiff, v. Laurel Wesley ELLIS, Defendant.
• Court: U.S. District Court — Western District of Michigan

910 F.Supp.2d 1008

UNITED STATES of America, Plaintiff,

v.Laurel Wesley ELLIS, Defendant.

Case No. 1:12–CR–91.

United States District Court,

W.D. Michigan,

Southern Division.

Dec. 19, 2012.

Mark V. Courtade, U.S. Attorney, Grand Rapids, MI, for Plaintiff.

Brian Patrick Lennon, Sarah Riley Howard, Warner Norcross & Judd LLP, Grand Rapids, MI, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

ROBERT J. JONKER, District Judge.

I. INTRODUCTION

On March 12, 2012, police obtained a warrant to search the home of Defendant Laurel Ellis (“Ellis”). During the resulting search, they found 189 marijuana plants growing in Ellis' basement, along with other evidence that Ellis was unlawfully manufacturing marijuana. After the search, police interviewed Ellis at his home and he admitted to the grow operation. On July 26, 2012, Ellis filed the Motion now before the Court (doc. # 29), seeking to suppress the results of the search and his incriminating statements made after the search. He also moves to suppress an incriminating statement police allege he made before the search, but that he denies making at all. The Court conducted an evidentiary hearing on October 4, 2012, and afterwards received supplemental briefing on several points. Having considered all matters of record, the Court finds no basis for suppression and therefore denies Ellis' Motion.

II. FACT FINDINGS¹A. Undisputed Facts of the Search Warrant and Confession

On March 12, 2012, Detective Todd Butler (“Butler”) applied for a warrant to search Ellis' home. (Search Warrant Aff., doc. # 30–1.) In his application for a warrant, Butler set out three reasons for believing that Ellis was unlawfully growing marijuana in his home: (1) Douglas Kurylowicz had told KANET officers that, just a few days earlier, he had personally observedEllis growing a large number of marijuana plants in his home; (2) a search of the Law Enforcement Intelligence Network (“LEIN”) did not disclose a license from the State of Michigan for Ellis to grow marijuana for medicinal purposes; and (3) upon learning that Butler was going to apply for a warrant to search Ellis' home, Ellis had said, “You are going to be taking me to jail for sure now when you see what is down in the basement.” ( Id. at 3–4.) A magistrate judge reviewed Butler's affidavit and issued the search warrant that evening.

Butler and other officers of the Kent Area Narcotics Enforcement Team (“KANET”) executed the search warrant shortly after it issued. (Resp. to Mot. to Suppress Evidence [“Resp.”], doc. # 32, at 6.) The officers who searched Ellis' home found 189 marijuana plants growing in the basement, along with other evidence that Ellis was manufacturing marijuana. ( Id. at 3.) While officers searched Ellis' home, Butler and Ellis walked outside to a police vehicle. ( Id.) Ellis sat in the front seat of the vehicle. He was not handcuffed or otherwise restrained at the time and the vehicle was unlocked. Butler also told Ellis that he was not under arrest and that he was free to leave the vehicle at any point. Butler then read Ellis the Miranda warnings. ( Id.) Ellis signed a written waiver of rights form, after which he confessed to operating an illegal marijuana grow operation in his basement. ( Id.)

Manufacturing marijuana is a crime under both federal law and Michigan state law. See21 U.S.C. § 841 et seq.;Mich. Comp. L. Ann. § 335.301 et seq. The federal law criminalizing marijuana manufacture is not subject to any exceptions; growing even a single marijuana plant is, per se, a federal offense. See, e.g., United States v. Rigsby, 943 F.2d 631, 643 (6th Cir.1991) (“Under the present rule, the jury had to find defendant guilty under § 841(a), as it did for possession of a controlled substance based on defendant's manufacture of the single marijuana plant.”). The same is true under Michigan law, but the Michigan Medical Marihuana Act (“MMMA”), Mich. Comp. L. § 333.26421 et seq., does establish an affirmative, state-law defense for some manufacturers of medical marijuana. SeeMich. Comp. L. § 333.26428 (entitled “Medical purpose for use of marihuana as affirmative defense in prosecution of patient or primary caregiver ...”) (emphasis added). The defense is a narrow one, subject to strict limitations. People v. King, 291 Mich.App. 503, 804 N.W.2d 911, 915 (2011); see also Casias v. Wal–Mart Stores, Inc., 764 F.Supp.2d 914, 922 (W.D.Mich.2011), aff'd,695 F.3d 428 (6th Cir.2012). Moreover, the MMMA's affirmative defense “does not abrogate state criminal prohibitions of the manufacturing of marijuana.” King, 804 N.W.2d at 915.

Ellis does not dispute any of the foregoing facts. Nevertheless, he moves to suppress (1) the physical evidence obtained by execution of the search warrant, (2) his confession, made to Butler in an interview after the warrant had been issued and after he signed a written waiver of his rights; and (3) evidence of a statement he denies making at all, but that others say he made upon learning that Butler was going to apply for a search warrant. (Mot. to Suppress Evidence (“Mot.”), doc. # 29, at 1.) His Motion hinges almost entirely on events antecedent to Butler's application for the search warrant.

B. Facts Leading up to Search Warrant and Confession

On the evening of March 12, 2012, Butler and a team of KANET officers executed a search warrant at the home of Douglas Kurylowicz (“Kurylowicz”). (Resp., doc. # 32, at 1.) The officers discovered evidence that Kurylowicz was illegally growing marijuana in his home. ( Id.) Kurylowicz agreed to speak with the officers and admitted that he had been growing marijuana for several years under the MMMA. (Def.'s Br. in Supp. of Mot. to Suppress Evidence (“Def.'s Br.”), doc. # 30, at 3–4.) He also identified Ellis as the person licensed under the MMMA to grow marijuana for him and told police that he had been “inside [Ellis'] residence three or four days ago” and had personally observed that “Ellis had 30–40 marijuana plants [more than] he is allowed per his medical marijuana caregiver card.” ( Id. at 4.) At another point in the police interview, Kurylowicz confirmed that Ellis “is a medical marijuana caregiver but he is way over the number of marijuana plants that he is allowed.” ( Id.)

Butler and several of the KANET agents decided to visit Ellis' home to investigate Kurylowicz's allegations. The officers believed they had probable cause for a warrant to search Ellis' home, but they elected not to apply for a search warrant right away. Instead, they drove straight to Ellis' home to seek his consent to search the premises by conducting a so-called “knock-and-talk.” ² The officers' decision to proceed without a search warrant was the product of several practical considerations: (1) it was already evening when they left Kurylowicz's home; (2) by the standards of rural Kent County, Kurylowicz's home was relatively close to Ellis'; (3) obtaining a search warrant would have required the officers to spend additional time driving to the station house (a considerable distance), completing an affidavit, and waiting for the warrant to issue; and (4) the officers believed that Ellis would consent to a search of his home, obviating the need for a warrant because, in their experience, citizens more often than not consent to search.

Butler and the other officers reached Ellis' home around 10:00 p.m. When the officers knocked on the door to the residence, Ellis initially grabbed a loaded handgun and took it with him to answer the door. ( Id. at 5.) When the officers identified themselves as law enforcement personnel, Ellis put the gun away, opened the door, and stepped outside to speak with them. ( Id.) Butler told Ellis, truthfully, that he had information Ellis was growing marijuana illegally and then asked to search Ellis' home. (Resp., doc. # 32, at 2.) Ellis admitted to participating in Michigan's medical marijuana program, but denied ever selling marijuana illegally. (Report, doc. # 30–2, at 2.) He further demanded that the officers obtain a warrant before searching his home. ( Id. at 2.) Butler then told Ellis, truthfully, that he would seek a search warrant right away, and that Ellis would be detained while Butler went to the police station to apply for a search warrant. ( Id. at 2.) Ellis was handcuffed at this time. ( Id.) When Butlernotified Ellis that he was going to apply for a warrant, Ellis said, “You are gonna be taking me to jail for sure when you see what is down in the basement.” (Resp., doc. # 32, at 2.) Ellis denies ever making such a statement, but the Court finds, by a preponderance of the evidence including the testimony of multiple officers, that Ellis made the statement.

At this point, the officers confronted a dilemma. By notifying Ellis of their plans and by detaining him outside, the officers had put anyone inside the home on notice of the impending search. This created a very real risk that individuals still inside the home might destroy evidence while the officers waited for Butler to return with a search warrant. Several of the officers testified that they had participated in investigations where suspects inside a home had flushed full-grown marijuana plants down the toilet as officers were literally at the door waiting for a warrant to issue. To guard against the possibility that evidence would be destroyed in this case, the officers decided to detain Ellis inside his home and check to make sure the premises were otherwise secure. ( See Resp., doc. # 32, at 2.) They did not at this point conduct a formal warrantless search of the premises and the government does not seek to justify a warrantless search based on exigent circumstances. See, e.g., United States v. Gaitan–Acevedo, 148 F.3d 577, 584–85 (6th Cir.1998) (warrantless entry and search of hotel room justified because officers reasonably believed suspect, alerted to their presence through open phone line, would destroy drug evidence).

As Ellis,...