United States v. Montieth

• Decision Date: 05 December 2011
• Docket Number: No. 10–4264.,10–4264.
• Citation: 662 F.3d 660
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kwan D. MONTIETH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

662 F.3d 660

UNITED STATES of America, Plaintiff–Appellee,

v.Kwan D. MONTIETH, Defendant–Appellant.

No. 10–4264.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2011.Decided: Dec. 5, 2011.

ARGUED: Roderick Morris Wright, Jr., Wright Law Firm of Charlotte, PLLC, Charlotte, North Carolina, for Appellant. Richard Lee Edwards, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

WILKINSON, Circuit Judge:

Appellant Kwan Montieth was convicted of having used and carried a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Montieth now appeals the district court's denial of his motion to suppress physical evidence recovered in a search of his residence and statements he made to the police. For the reasons that follow, we affirm the judgment of the district court.

I.

A.

On June 10, 2008, Officer Sean Blee of the Charlotte–Mecklenburg Police Department searched the trash outside Kwan D. Montieth's home after receiving a tip from ATF Agent Kevin Kelly that Montieth was selling marijuana. Based on the evidence of drug trafficking that Blee discovered in Montieth's trash, he obtained a warrant on June 11, 2008 to search Montieth and his residence for marijuana, firearms, and additional evidence of drug trafficking. Officers were aware that Montieth lived at the residence with his wife and two young children. In an effort to minimize both the trauma to Montieth's family as well as the safety risks of a search, the officers planned to detain Montieth away from his residence and secure his cooperation to execute the warrant.

After an undercover officer observed Montieth depart his residence by car, Officers LeClerc and Starnes pulled him over about eight-tenths of a mile from his home. LeClerc smelled a strong odor of marijuana coming from the car. The officers instructed Montieth to exit his vehicle, handcuffed him, and placed him in the back of the police car. Officers Blee and Tobbe arrived at the scene and they too smelled the strong odor of marijuana from Montieth's vehicle. Blee informed Montieth that the police planned to execute a search warrant at his home, and Montieth disclosed that he had marijuana at his residence. Blee explained that the officers preferred to execute the warrant with his cooperation to avoid an abrupt or forcible entry into the house while his wife and children were inside. Montieth opted to cooperate in the warrant's execution and asked especially that his children not see him in handcuffs.

Upon return to the residence, Montieth remained in the police car as the officers instructed Ms. Montieth that they had a search warrant for the residence and that she should leave the premises with her children. Once Montieth's wife and children departed, the officers—accompanied by Montieth in handcuffs—entered the residence without force. Blee and Tobbe testified that once inside Blee read to Montieth from the search warrant and informed him of his Miranda rights, which he verbally waived. Although the district court found Blee's and Tobbe's testimony to be credible, Montieth maintains that the officers interrogated him without administering Miranda warnings.

Montieth told the officers that he sold marijuana and in response to questioning identified locations in the residence where the officers would discover marijuana, firearms, and cash. The officers seized approximately one kilogram of marijuana, two firearms, ammunition, a digital scale, baggies, and cash. The officers also searched a storage shed in the backyard where they recovered additional drug paraphernalia.

After the officers completed the search, Tobbe brought Montieth to the local law enforcement center and again read him his Miranda rights. Montieth signed a written waiver and provided a statement about his involvement in marijuana trafficking. Meanwhile, an officer informed Ms. Montieth, who was waiting with a neighbor, that the search was over and that the officers had left a copy of the search warrant on a table in the house. Ms. Montieth returned home and did not find the search warrant for her residence. Instead, she discovered on the kitchen table an incomplete draft of a warrant and warrant application for a different residence that had no connection to Montieth.

B.

Montieth was indicted by a federal grand jury on February 17, 2009 on three counts: possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841; using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Montieth filed a motion to suppress all evidence recovered during the June 11, 2008 search and any statements he made to police on that date. After conducting an evidentiary hearing, the district court denied the motion. On August 14, 2009, Montieth entered a conditional plea of guilty for violating 18 U.S.C. § 924(c)(1), preserving his right to appeal the denial of his suppression motion.

Montieth raises various Fourth and Fifth Amendment claims before this court on appeal. In reviewing the district court's denial of Montieth's motion to suppress, we review legal determinations de novo and factual findings for clear error. United States v. Blake, 571 F.3d 331, 338 (4th Cir.2009). Where, as here, the government prevailed below, “we construe the evidence in the light most favorable to the government.” United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008).

II.

We begin with Montieth's claim that the officers searched his residence without a valid warrant in violation of the Fourth Amendment. As the district court properly found, the search warrant was issued based on probable cause supplied by Officer Blee's warrant affidavit.

A.

A warrant is constitutionally sound when issued by a neutral magistrate and supported by probable cause. See U.S. Const. amend. IV; Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). The magistrate's probable cause determination is a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... 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); see also United States v. Grossman, 400 F.3d 212, 217 (4th Cir.2005). Because probable cause is evaluated through a “totality-of-the-circumstances” analysis rooted in common sense, Gates, 462 U.S. at 230, 103 S.Ct. 2317, we “must accord ‘great deference’ to the magistrate's assessment of the facts presented to him.” United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.1990) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). We therefore limit our inquiry to whether there was a “substantial basis for determining the existence of probable cause.” Gates, 462 U.S. at 239, 103 S.Ct. 2317.

B.

Officer Blee's affidavit in support of the warrant revealed the following information. Blee conducted a trash pull at Montieth's residence after receiving a tip from ATF Agent Kelly that Montieth possessed a sizeable amount of marijuana. Blee confirmed Montieth's address at 5606 Nesting Court, Charlotte, NC, and searched bags retrieved from a trash can left for pick up at the side of the Montieth residence. In the trash Blee found two bills addressed to Kwan Montieth at 5606 Nesting Court, which corroborated that the trash belonged to Montieth.

Blee also discovered in the trash extensive evidence of marijuana trafficking, including: (1) green saran wrap with suspected marijuana residue; (2) separate pieces of PVC pipe wrap (often used to package marijuana) with suspected marijuana residue; (3) pieces of green wrapper with brown tape with suspected marijuana residue; (4) several burnt marijuana cigarettes; (5) clear plastic baggies; and (6) marijuana stems. As part of his investigation, Blee inquired into Montieth's criminal history and learned that he had a prior criminal record that included several drug offenses. Blee detailed in the affidavit his considerable experience and training with drug investigations and arrests, which led him to conclude based on the trash pull that probable cause existed to search Montieth and his residence for additional evidence of drug trafficking.

Contrary to Montieth's assertions, the affidavit also described with particularity the residence to be searched and the items expected to be seized. See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Blee described in detail the location and appearance of the house at 5606 Nesting Court and specified the items he expected to discover in the search, including, among other things: (1) marijuana; (2) records of illegal drug activities; (3) drug paraphernalia; (4) U.S. currency; and (5) firearms.

C.

Based on the considerable evidence of drug trafficking discovered in the trash pull, and the information linking the drug trafficking materials to Montieth and his residence, the magistrate properly concluded that there was a “fair probability” that additional criminal evidence would be discovered upon execution of the warrant.

Montieth nevertheless argues that the affidavit suffered constitutional deficiencies and lists several bases for a search warrant that were not included in the affidavit here. For example, Montieth notes that the affidavit was not supported by incriminating information gathered from officer surveillance or from a confidential informant. But to require that the affiant amass every piece of conceivable evidence before...