United States v. Thoms

• Decision Date: 29 June 2012
• Docket Number: No. 11–30120.,11–30120.
• Citation: 684 F.3d 893,12 Cal. Daily Op. Serv. 7472,2012 Daily Journal D.A.R. 9130
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Jennifer Anne THOMS; Trace Rae, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

684 F.3d 893

12 Cal. Daily Op. Serv. 7472

2012 Daily Journal D.A.R. 9130

UNITED STATES of America, Plaintiff–Appellant,

v.Jennifer Anne THOMS; Trace Rae, Defendants–Appellees.

No. 11–30120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2012.

Filed June 29, 2012.

Kirby Heller (argued), United States Department of Justice, Appellate Section, Criminal Division, Washington, D.C.; Jo Ann Farrington and Stephan A. Collins, United States Department of Justice, Office of the United States Attorney, Anchorage, AK, for the plaintiff-appellant.

George J. Dozier, Jr. (argued) and Rex Lamont Butler, Rex Lamont Butler and Associates, Anchorage, AK, for defendant-appellee Trace Thoms.

Vikram N. Chaobal, Law Office of Vikram N. Chaobal, Anchorage, AK, for defendant-appellee Jennifer Thoms.

Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding.

Before: RONALD M. GOULD, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

OPINION

BEA, Circuit Judge:

In a criminal pre-trial matter, it is well established in our circuit and in most others that, if a district judge is inclined to depart from credibility findings of a magistrate judge that were favorable to the defendant, he may only do so after holding a de novo evidentiary hearing. See United States v. Ridgway, 300 F.3d 1153 (9th Cir.2002). This right is grounded in the Due Process Clause. Id. at 1155–56.

But what about the reverse? What if a magistrate judge recommends denying a motion to suppress, but the district judge wishes to reverse that determination because he is inclined to disbelieve the testimony of government officials? In that case, must he hold a de novo hearing for the benefit of the government, which is the plaintiff in a criminal case?

This appeal considers such a case, and our circuit has yet to address this question. The government primarily urges us to adopt a broad rule: the government's right to a de novo hearing before a district judge is identical to that of defendants, even though the government cannot directly invoke the protections of the Due Process Clause. The defendants counter that, without the Due Process Clause to ground this right, the decision to hold a de novo hearing in such cases is entirely within the district judge's discretion.

We disagree with both of those categorical options, and today we adopt a middle ground, though our rule counsels strongly in favor of holding a de novo hearing. We agree with the defendants that the government does not have an unqualified right to a de novo evidentiary hearing whenever a district judge reverses a magistrate judge's credibility determinations in a way adverse to the government. But we also agree with the government that its interest in the integrity and accuracy of judicial proceedings—which, after all, similarly underlie a defendant's due process rights to such a de novo hearing—will often counsel in favor of such a hearing. Thus, we hold that a district court abuses its discretion when it reverses a magistrate judge's credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge's credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant. ¹

I.

Although the government's appeal challenges only the procedure by which the district court rejected the credibility determinations of the magistrate judge, and not the merits of the district court's decision to suppress the evidence, some understanding of the events leading to this dispute is necessary.

A.

On February 22, 2010, an Alaska state judge issued a warrant to search a residential house and outbuildings located in Wasilla, Alaska. The property is owned by defendants Trace and Jennifer Thoms. The warrant was issued on the basis of an affidavit submitted by Investigator Kyle Young, an Alaska state trooper, whose affidavit provided probable cause for the judge to conclude that the property's owners could be growing marijuana on the property.

The affidavit contained a variety of facts in support of the warrant, but, for purposes of this appeal, the key piece of information was Investigator Young's claim that overnight on February 21–22, 2010, he “smelled a strong odor of cultivating marijuana while driving on West Scarlett Circle, off of Scarlett Drive in Wasilla.” He then said that “I immediately stopped my vehicle and checked the wind direction and noted that I was downwind of the first residence on the right on West Scarlett Circle, off of Scarlett Drive.” Investigator Young parked his car and walked on the roadway a short distance, and he continued to smell marijuana. In the affidavit, he concluded that “Based upon the odor of marijuana in the proximity of the suspect residence and the wind direction at the time, I believe that the source of the odor was the first residence on the right on Scarlett Circle, described above.” Investigator Young later estimated that he was approximately 400 to 600 feet away from the odor's source when he first smelled the marijuana.

The state court judge approved the warrant, and officers soon executed it and searched the property. There, in two outbuildings, police found a large marijuana grow operation, consisting of around 400 plants. Later, co-defendant Trace Thoms testified to the many measures he took to contain the smell emanating from the building with the growing plants. This included insulating and taping the garage doors, installing two filtration systems, and even “ma[king] a conscious effort to grow marijuana that was less odorous.” Thoms expressed confidence that these protections would shield his operation from law enforcement. “So were you able to sleep at night knowing you had these filtration systems?” asked the prosecutor. “I slept great,” Thoms replied.

B.

Nonetheless, on July 23, 2010, the Thomses were indicted on federal drug charges in the District of Alaska. The superseding indictment charged the Thomses with one count of conspiracy to manufacture marijuana; one count of manufacturing marijuana; one count of maintaining a place for the manufacture of marijuana; one count of conspiracy to commit money laundering; and fourteen counts of money laundering. The superseding indictment also contains allegations of criminal forfeiture against some of Thomses property and possessions.

The Thomses moved to suppress the evidence of the search, and they requested a Franks hearing to challenge the truth of the statements in Investigator Young's affidavit. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and its progeny, a defendant can challenge the truth of police statements contained in an affidavit in support of a search warrant. Under Franks, suppression is appropriate only where a defendant proves that “that the magistrate or judge in issuing the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” United States v. Stanert, 762 F.2d 775, 780 (9th Cir.1985). Thus, to prevail on this claim, the Thomses were required to show that Investigator Young's statements in the affidavit were deliberate or reckless falsehoods. The matter was referred to a magistrate judge, who granted the request to hold a Franks hearing.

At the hearing, ten witnesses testified over the course of two days. Seven witnesses testified on behalf of the Thomses, including Trace Thoms and Professor Richard Doty, the director of the Smell and Taste Center at the University of Pennsylvania School of Medicine. Three witnesses testified on behalf of the government: Investigator Young, and two other officers involved in the search.

In a detailed report and recommendation, the magistrate “conclude[d] that the testimony at the Franks hearing does not show recklessness by Inv. Young nor does it prove the officer perjured himself when he claimed he smelled marijuana.” The magistrate therefore recommended denying the motion to suppress.

The Thomses filed objections to the magistrate's report, and the district court reversed the magistrate's recommendation and granted the motion to suppress. The district court did so without holding a de novo evidentiary hearing to hear any live testimony. Instead, the district court conducted a de novo review of the facts and the law based on the entire record,² includingthe hearing transcript, and the district court concluded that a preponderance of the evidence at the Franks hearing showed that Investigator Young's claim that he smelled marijuana from his location was not credible. The court said:

To conclude that Investigator Young did smell marijuana from the road, while in his vehicle would require the court to assume that Thoms' filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses' house; ³ that it either traveled around the Thomses' two-story residence or stayed warm long enough to traverse above it then suddenly dropped in the area Young claimed to smell marijuana; and that it followed the described 450 foot course without dispersing beyond perceptible levels. Those assumptions are contrary to a preponderance of the evidence presented at the Franks hearing.

Because a “district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit,” United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988) (emphasis added), and the good faith exception did not apply, the district court granted the motion to suppress.

C.

The government filed a motion to reconsider. The government requested reconsideration...