United States v. Ward

• Decision Date: 23 August 1982
• Docket Number: 82-30003-02 and 82-30003-03.,Crim. No. 82-30003-01
• Citation: 546 F. Supp. 300
• Parties: UNITED STATES of America, Plaintiff, v. Steve Lee WARD, Jimmie T. Sanders and Cheryl Lynn Rose, Defendants.
• Court: U.S. District Court — Western District of Arkansas

546 F. Supp. 300

UNITED STATES of America, Plaintiff, v. Steve Lee WARD, Jimmie T. Sanders and Cheryl Lynn Rose, Defendants.

Crim. Nos. 82-30003-01, 82-30003-02 and 82-30003-03.

United States District Court, W. D. Arkansas, Harrison Division.

August 23, 1982.

COPYRIGHT MATERIAL OMITTED

J. Michael Fitzhugh, Asst. U. S. Atty., Fort Smith, Ark., for plaintiff.

Wm. R. Wilson, Jr., Wilson & Engstrom, Little Rock, Ark., for defendant Sanders.

Guy Jones, Jr., Conway, Ark., for defendants Ward and Rose.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Introduction

Defendants are charged with violations of 21 U.S.C. §§ 841(a)(1), 846, i.e., possession of a controlled substance with intent to distribute or dispense, and conspiracy to possess a controlled substance with such intent.

The action is presently before the Court on defendants' motion to suppress and for disclosure of confidential informant. On August 6, 1982, the Court conducted a hearing on the motions and took the matter under advisement. Because of the complexity of some of the issues and grave importance of the precise accurate resolution of factual matters, an in camera hearing was conducted on August 11 and 12, 1982. All of the parties have diligently presented and argued their respective positions. For the reasons set forth herein, the Court concludes that the evidence is admissible under the "exclusionary rule" established in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and the present-day interpretation of Fourth and Fifth Amendment doctrine.

Factual Summary

On December 9, 1981, an undisclosed informant contacted F.B.I. Agent Jack Knox to discuss suspected criminal behavior by defendant Ward. The informant had never been an informant previously. Lieutenant Rife of the Arkansas State Police was also present.

Agent Knox testified at the suppression hearing that the informer related to him that approximately eight weeks earlier he had observed defendant Ward planting marijuana seeds in six to seven hundred clay pots in a barn located on the real property of defendant Sanders. The informer allegedly observed three rows of "grow" lights, or three "grow" lights in a row suspended over the pots which provided illumination essential to plant growth. The informant allegedly described the barn as "open," not mentioning any enclosures within the barn.

Agent Knox testified that the informant also observed several marijuana seeds in cellophane baggies. The informant allegedly related that he had in the past had drug dealings with defendant Ward.

Agent Knox testified that he then conferred with Lt. Rife and Investigators Beach and Combs of the Arkansas State Police. The informer allegedly related to Agent Knox that plants were located in a white barn with a tin roof which had black tar paper over the windows. Agent Knox directed Investigators Beach and Combs to conduct a surveillance of the barn from adjacent property. This property is located south of the barn at a distance of between 100 and 200 yards. Investigators Beach and Combs conducted nighttime surveillance with binoculars and infra-red telescopic "night scope" up to and including the early morning of December 12, 1981.

At approximately 12:30 a.m. on the morning of December 12, 1981, Investigators Beach and Combs observed an individual drive up to the barn, exit his vehicle, unlock the padlocked narrow door, and enter the barn. The individual could not be identified with the naked eye nor with binoculars, although with the use of the telescopic "night scope" Investigator Combs was able to identify defendant Ward as the individual.

Agent Knox testified that Investigators Beach and Combs related their observations to Lt. Rife, who told Agent Knox that Investigators Beach and Combs observed defendant Ward enter the barn and adjust something on the wall.

Based upon this observation and the information given Agent Knox by the informant, as well as defendant Ward's general history of drug dealing, Agent Knox allegedly related these facts to the affiant, Henry Tuck.

The affidavit of Mr. Tuck, however, recites that Investigators Beach and Combs saw defendant Ward "adjusting three rows of growing lights and/or black lights."

Investigator Beach, at the suppression hearing, specifically denied seeing defendant Ward adjust any lights and denied telling Lt. Rife or Agent Knox that he could see the lights at all. Similarly, Investigator Combs testified that he never saw defendant Ward adjust any lights and denied telling anyone that he did see it.

The proof submitted admits of no doubt that it is physically impossible to see the "growing" lights or the marijuana plants from the location of the surveillance. All windows were sealed and blocked and/or covered with tar paper. All entrances to the barn were nailed shut except the one small door through which defendant Ward entered. The lights and the plants were enclosed in a separate small room with its own door. The construction of the building is such that the two doors do not "line up" so that the door or interior of the small room can possibly be seen from outside the barn. Agent Knox, Investigators Beach and Combs and Lt. Rife all testified that it is indeed physically impossible to see the "growing" lights or the plants from their surveillance.

The undisputed proof shows that no lights at all on the interior of the barn can be seen from anywhere near the location of the surveillance.

The affidavit presented to the Magistrate states that three rows of the growing lights were seen and that defendant Ward adjusted them. Mr. Tuck testified at the suppression hearing that Agent Knox told him that these were seen. Agent Knox denies telling Mr. Tuck this.

Based upon the affidavit, a search warrant was issued and executed later that morning. Seven sets of double florescent lights and numerous small marijuana plants in plastic pots (rather than clay) were confiscated. Defendants were subsequently arrested and charged with violations of 21 U.S.C. §§ 841(a)(1), 846.

Discussion

Defendants first contend that the affidavit for search warrant was insufficient to show probable cause, and thus, all evidence seized under the warrant must be suppressed. Secondly, defendants assert that the evidence obtained during surveillance conducted with the use of the visual enhancement devices must be suppressed as fruits of a warrantless illegal search. Finally, defendants argue that the affidavit contains intentional or known false statements necessary to the finding of probable cause and therefore the results of the search must be suppressed. These arguments will be examined in turn.

I. The Sufficiency of the Affidavit for Search Warrant

Defendants' attack upon the search warrant is twofold: (A) that the affidavit presented to the Magistrate contained hearsay information furnished by an unidentified informant that does not meet the probable cause requirement of the Fourth Amendment under the test formulated by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); and (B) the affidavit relies upon stale information that does not show the existence of probable cause at the time the warrant was issued.

A finding in support of either will justify the suppression of evidence obtained by the search.

A.

The law is clear in this Circuit that in determining whether there was probable cause for the issuance of a search warrant, the reviewing court may consider only the information presented to the Magistrate. United States v. Lyon, 567 F.2d 777 (8th Cir. 1977); Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966).

The facts presented to the Magistrate by way of affidavit contain the following statements:

On December 9, 1981, a resident of Searcy County, Arkansas, who admits dealing in drugs and who is fearful of his life and who has never been an informant, advised Special Agent Jack D. Knox, Federal Bureau of Investigation (FBI), that approximately eight weeks from the date of interview he saw Steve Ward, whom source described as a person with whom he has had past narcotics dealings, at a white barn with a tin roof located on property approximately three miles west on Zack Road from Highway 65 on the south side of the road in Searcy County. Ward was in the barn where there were 600 to 700 clay pots and a large quantity of marijuana seeds in a cellophane bag. Ward was observed planting the seeds in the dirt-filled pots, and suspended above them were growing lights and/or black lights in three rows. The windows of the barn had been covered with black tar paper.

Approximately four weeks previous to December 9, 1981, source advised SA Jack D. Knox, FBI, that he was again at the above-described property and saw the front door nailed closed, a padlock on the back door with windows secured.

Source also advised SA Jack D. Knox, FBI, that on December 4, 1981, at approximately 2:30 AM, he observed a small grey-colored sportscar with convertible top, which he knows to belong to Steve Ward, at the above-described barn. He observed this vehicle backed up to the back door of the above-described barn. At this time, the barn was still secured as described in the above paragraph.

On December 10, 1981, Sergeants Bill Beach and Rod Combs, Narcotics Investigators for the Arkansas State Police, at 12:30 AM, observed the white barn with tin roof located approximately three miles west from Highway 65 on the south side of Zack Road, property which Sgt. Combs knows to belong to Jimmy Terrell Sanders and which he used to raise hogs. Sergeants Beach and Combs observed from property adjacent to the above-described property, through the use of night scope and binolars sic, a person they know to be Steve Ward adjusting three rows of growing lights and/or black lights. They advised that the barn windows were covered with black tar paper and the

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