US v. Bute
| Citation | 823 F. Supp. 1561 |
| Decision Date | 18 June 1993 |
| Docket Number | No. 92-CR-0108-S.,92-CR-0108-S. |
| Parties | UNITED STATES of America, Plaintiff, v. Ronald Joseph BUTE, Beverly M. Bute and Steven Barnes, Defendants. |
| Court | U.S. District Court — District of Utah |
David Schwendiman, Kevin Sundwall, Asst. U.S. Attys., U.S. Attys. Office, Salt Lake City, UT, for plaintiff.
Ronald Yengich, Loni F. DeLand, D. Gilbert Athay, Salt Lake City, UT, for defendants.
This matter is before the court on defendants' Objections to Magistrate's Report and Recommendation.
Defendants were charged with possession of a controlled substance with intent to distribute and manufacture of a controlled substance. The three defendants filed a joint motion to suppress evidence obtained by police claiming it was obtained in violation of the defendants' Fourth Amendment rights.1 The motion to suppress was referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a report and recommendation finding that whereas defendants Beverly Bute and Ronald Joseph Bute had standing to contest the search, defendant Steven Barnes did not demonstrate a sufficient expectation of privacy in the premises to confer standing on him. The court concurs.
As to the Bute's motion to suppress, the magistrate judge denied the motion but on grounds different than those suggested by the government. The United States had argued that the search of the honey factory fell within the "protective sweep" exception to warrantless searches and seizures. The magistrate judge rejected this argument finding that the protective sweep concept applies only when there is a "reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing as a danger to those on the arrest scene." As the officer in this case had no real suspicion that the premises harbored a dangerous individual, the magistrate judge held that a protective sweep was not applicable in this case.
The magistrate judge further found that absent evidence of an emergency situation, the exigent circumstances exception was also not applicable. Notwithstanding his rejection of these two exceptions, he found the warrantless search to be constitutional. The magistrate judge applied a "reasonableness" standard to the search and found that when analyzed under this standard, the search and discovery of evidence was constitutional.
Defendants have objected to the report and recommendation arguing that the magistrate judge adopted a general reasonableness exception to the warrant requirement which is not justified by applicable case law.
The court concurs with the magistrate judge's holding. The court finds there is sufficient authority to support a finding that the officer's actions were protective of the premises, that he had probable cause to perform a cursory search, and that any evidence in plain view which was subsequently seized pursuant to that search should not be suppressed. See, Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir.1987) (); United States v. Zurosky, 614 F.2d 779, 784 (1st Cir.1979) cert. denied 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980) (); United States v. Moskow, 588 F.2d 882, 892 (3rd Cir.1978) (); United States v. Estese, 479 F.2d 1273, 1274 (6th Cir.1973) (). But see, United States v. Selberg, 630 F.2d 1292, 1295 (8th Cir.1980) ().
In the instant case the officer admits that the situation was not such an emergency that he felt compelled to immediately stop and investigate. Rather he came back after dropping another officer at home. But while he did not believe a burglary was actually in progress, he did not know what the situation was. A burglary might have occurred, someone might have been injured. His purpose was to check for possible injury to persons or property. His search was cursory and limited to achieving this purpose. While the circumstances may not have risen to the level of an emergency, the facts conform to the basic assumption running throughout the case law: the officer was performing his duty as a police officer and his search of the premises was a good faith consequence of that duty. He was not there to find evidence to incriminate the owners but to protect persons and property. Under the reasonableness standard articulated by the magistrate judge, the officer's actions were justified in these circumstances. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), upon which the defendants heavily rely, is distinguishable on both the facts and law applicable to the case at hand.
Accordingly, the court hereby ADOPTS the magistrate judge's report and recommendation as its own opinion. Defendants' motion to suppress is DENIED.
So Ordered.
REPORT AND RECOMMENDATION
Defendants, Ronald Joseph Bute, Beverly M. Bute, and Steven Barnes, have been indicted by a grand jury and charged in two counts with violations of 21 U.S.C. § 841(a)(1). Count 2 charges possession, on March 21, 1992, of methamphetamine with intent to distribute. Count II charges that on the same date defendants did knowingly and intentionally manufacture a mixture containing methamphetamine (File Entry 1).
The three defendants filed a joint motion to suppress evidence obtained by police claiming it was obtained in violation of the defendants' Fourth Amendment rights (File Entry 65). The joint motion does not particularize the basis for the motion to suppress.1 A joint memorandum was filed in support of the motion (File Entry 64). An affidavit of investigator Krista L. Pickens was submitted as to the substance of her interview with Salt Lake County Deputy Sheriff Dan McConkey (File Entry 65).2 The government filed a response to the motion (File Entry 78). Hearing was held before the magistrate judge on the defendants' joint motion to suppress on December 17, 1992. Defendants were granted 14 days from receipt of the transcript to reply to the government's response and the government was given five days thereafter to reply. The transcript was received on December 30, 1992. The defendants' final memorandum was submitted on January 11, 1993, the government replied on January 21, 1993.
The defendants' motion to suppress has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendants' motion to suppress.
The hearing on the motion to suppress was held on December 17, 1992 and the transcript received on December 30, 1992. Defendants' memorandum on the motion was received January 11, 1993. The government's reply was late. It was filed January 21, 1993.
At the hearing, it was agreed that with regard to the premises searched in Riverton, Utah, defendants Joseph and Beverly Bute were lessee's of the premises (Tr. p. 5). The government contended defendant Steven Barnes had no interest in the premises. Defendants' counsel indicated that at some previous time, Barnes had used the premises to paint a car and at an unspecified time for storage with the permission of the Butes. There was no evidence that Barnes had any interest in the premises at the time of the search in question (Tr. p. 6).
Deputy Salt Lake County Sheriff, Daniel McConkey, testified that on March 20, 1992 he was assigned to patrol the Bluffdale, Herriman, Copperton, and Riverton areas of Salt Lake County (Tr. pp. 7-8). He was in a location of 13000 South 2700 West and he knew the area (Tr. p. 9). At about eleven o'clock p.m. (2300 hrs.) he began his shift. The previous patrol deputy would pick him up, he would take that officer home and McConkey would start his shift (Tr. pp. 9-10). McConkey met Deputy Cannon who was going off shift and proceeded to take him home to Sandy, Utah. On the way both officers noticed a garage door open at what was "an old honey manufacture." Both officers made note of the circumstance (Tr. pp. 10-11). McConkey has never seen anyone around the building before. He had not seen the premises open before. McConkey determined to take Deputy Cannon home and return to check it out. The building is cinder block with a small front window with a walk to the door and a garage attached (Tr. p. 11) . It was dark at the time. When McConkey drove by, the garage door was completely open. An open field is on the north side and a home to the back on the south (Tr. p. 12). It took about three to five minutes to go from the building to Deputy Cannon's house. McConkey then returned immediately. He radioed in to the dispatcher, said he noticed the door open and was going to check it out (Tr. p. 12). This is a routine procedure. Dispatch is notified of an open door of a building or house (Tr. p. 13). McConkey pulled up and shined a spotlight into the open garage. He observed shelving on the wall, a chair, and "normal garage stuff." There were no vehicles (Id. p. 13). There were no signs of anyone around. McConkey thought possibly someone had burglarized or vandalized the building. He had never seen the door open (Tr. p. 14). After notifying dispatch, the officer approached the building alone. He had a flash-light and entered the garage on...
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