US v. Foster

• Decision Date: 26 September 1995
• Docket Number: No. CR-95-5-S.,CR-95-5-S.
• Citation: 897 F. Supp. 526
• Parties: UNITED STATES of America, Plaintiff, v. Albert FOSTER, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

897 F. Supp. 526

UNITED STATES of America, Plaintiff, v. Albert FOSTER, Jr., Defendant.

No. CR-95-5-S.

United States District Court, E.D. Oklahoma.

August 15, 1995.

As Corrected September 26, 1995.

COPYRIGHT MATERIAL OMITTED

Paul Hess, Assistant U.S. Attorney, Muskogee, OK, for plaintiff.

Donn Baker, Tahlequah, OK, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

SEAY, Chief Judge.

The defendant, Albert Foster, Jr., is charged in a twelve-count superseding indictment with various violations of Titles 18 and 21 of the United States Code related to controlled substances, firearms, false identification, sexual exploitation of minors, and transportation of a minor. Before the court for its consideration is Foster's amended motion to suppress. Foster contends that all evidence seized from his residence on December 16, 1994, should be suppressed because the underlying state court search warrant was not obtained in a timely manner and, in the alternative, the search conducted by law enforcement officials substantially exceeded the scope of the warrant. In response, the government argues that all items were seized pursuant to a valid search warrant and that evidence of criminal violations and contraband, in plain view, may properly be seized. The parties have fully briefed the issues and the court held a hearing on this matter on August 2, 1995. For the reasons stated below, the court finds that all evidence seized as a result of the December 16, 1994, search should be suppressed.

I.

The essential facts are uncontroverted. On December 16, 1994, Sequoyah County Deputy Sheriff, Raymond Martin ("Martin"), submitted his affidavit for search warrant to search Foster's residence. In his affidavit, Martin stated that he and another deputy were told by an arrestee, Dallan Davis ("Davis"), that on November 24, 1994, Davis had traded several guns for one pound of marijuana to the person occupying Foster's residence.¹ Davis told Martin that while he was at the residence he saw marijuana growing in the kitchen and bedroom; that there were scales, clear plastic baggies, and larger quantities of marijuana in the residence; and that there were more than fifty guns in the residence. Davis also told Martin that four of the exchanged guns were stolen from a residence in Poteau, Oklahoma.

Based on the information contained in Martin's affidavit, a state authorized search warrant was issued by a judge of the District Court for Sequoyah County, Oklahoma, on December 16, 1994. The search warrant was issued based on the state court judge's determination that there was probable cause to believe that evidence of the commission of the crimes of knowingly concealing stolen property and possession of a controlled substance would be found at Foster's residence. The search warrant authorized the search of Foster's residence for the following items:

Remington 12 Ga. shotgun serial # L072083, Taurus Model 85, 38 special Serial # NA44497, 22Ca. Ruger carbine # XXX-XXXXX and a 22 Caliber Ruger Carbine W/green folding stock # 23820424, as well as CDS (Marijuana).

The search warrant further authorized the search of any automobiles and outbuildings on the property and for a search of "evidence of residency in which the stolen property is found."

On December 16, 1994, at approximately 3:25 p.m., Martin and seven other officers arrived at Foster's residence and began to execute the search warrant. Marijuana was found in the bedroom of the residence and in a barn which was located directly behind the residence. Firearms were found in the residence, mainly in the bedroom on the floor near a wall. Other items, including ammunition and drug paraphernalia, were found throughout the residence and the barn. Sometime during the first hour of the search conducted by the state officers, Foster arrived at the residence with a woman identified as his stepdaughter and he was arrested on charges of cultivation of marijuana. Foster was transported to the county jail by Martin. After Foster had been transported, the state officers decided to contact the Drug Enforcement Agency ("DEA") for their assistance. A federal investigation and prosecution were authorized and DEA agents Robert Shannon ("Shannon"), Juan Beal ("Beal"), and Tim Jones ("Jones") arrived at Foster's residence at approximately 5:45 p.m. and they conducted their own search of the premises.

Before the arrival of the DEA agents, one of the state officers assisting in the execution of the search warrant, Ken Cowart ("Cowart"), Sequoyah County Deputy Sheriff, found numerous videotapes near two televisions and two VCR machines in the living room of the residence. Cowart noticed the word "Coke" on one of the videotapes which was in a black case next to the entertainment center. Believing it to be a reference to cocaine, Foster placed it in one of the VCR machines. Viewing the videotape, Cowart observed Foster and his stepdaughter lying on the couch in the living room of Foster's residence.² Cowart found and viewed approximately five other videotapes with either the word "Coke" or "Tab" on the labels. These videotapes contained footage of sexual acts involving Foster and his stepdaughter as well as footage of marijuana, including one scene involving three or four young looking females smoking marijuana on the couch in Foster's living room. Cowart informed another agent at the scene, Greg Wilson ("Wilson"), the District Attorney's Investigator, who informed the DEA agents of the contents of the videotapes upon their arrival. Without personally viewing any of the videotapes, Shannon seized all videotapes located in Foster's residence and took them to the DEA's office. A federal search warrant was obtained on December 19, 1994, and the DEA viewed the videotapes and observed numerous controlled substance and sexual exploitation violations involving Foster.

The search of Foster's residence on December 16, 1994, lasted until approximately 11:00 p.m. When the DEA agents left the residence they took with them thirty-five listed items including various firearms, ammunition, videotapes, marijuana, drug paraphernalia, and other miscellaneous items. The property that was seized by the DEA agents is listed on page three of the return filed by Martin.³ As to the property seized by the state officers, pages one and two of the return list sixty items seized from Foster's residence. These items include VCR machines, a socket set a Pro Compound Bow by York, a green pair of coveralls, a riding lawn mower, a tiller, a stereo system, two soft tip microphones, televisions with remote controls, a Dewalt heavy duty drill, a Vivitar camera tripod, a Red Rider BB-gun Daisy Model, a Corona Machete in brown leather case, a ASAHI Pentex Spotmatic Camera, a Bowie type knife in black sheath, a Yashica camera MAT-124, a Westinghouse clock radio, five hunting knives, a screw driver set, three vehicles, and a small box containing old coins, knives, watch, and jewelry.

II.

Initially, Foster attacks the legal sufficiency of the search warrant by arguing that Martin's affidavit in support of the warrant failed to establish probable cause because it was based on stale information. Foster claims the information contained in Martin's December 16, 1994, affidavit was not reliable because it consisted of events and observations occurring on November 24, 1994. Martin's affidavit recited Davis's November 24, 1994, exchange of guns for marijuana with Foster and his observation of marijuana and other guns at Foster's residence on that same date. Foster contends the three-week gap between November 24, 1994, and December 16, 1994, renders the information in Martin's affidavit stale and unreliable. The court disagrees.

Under the Fourth Amendment, probable cause to search cannot be based on stale information that no longer suggests the items sought will be found in the place to be searched. United States v. Snow, 919 F.2d 1458, 1459 (10th Cir.1990); United States v. Shomo, 786 F.2d 981, 983 (10th Cir.1986). "The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on `the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.'" Snow, 919 F.2d at 1460 (citing Shomo, 786 F.2d at 984). In the instant case, nothing suggests that a three-week gap in time would make the information provided by Davis stale or unreliable. The four guns which Davis exchanged for marijuana were likely to have been kept at the residence for some time. According to Davis, Foster stored numerous guns at his residence. There is no evidence in the record to suggest that the guns Davis exchanged would not be there for some time. Also, since Davis provided information about an ongoing marijuana growing and distribution operation, there is a substantial likelihood that the marijuana and guns would be present for some time in connection with such operation. See United States v. Williams, 897 F.2d 1034, 1039 (10th Cir.1990), cert. denied, 500 U.S. 937, 111 S.Ct. 2064, 114 L.Ed.2d 469 (1991) (information spanning a four-year period which linked defendant to drug distribution conspiracy was not stale as the court found that telephone, business, financial, and other records were likely to be present for some time); Shomo, 786 F.2d at 984 (ten-day gap between the time defendant was seen leaving his residence carrying a revolver and the issuance of the search warrant was not so long as to make the information in the affidavit stale). Consequently, under the totality of the circumstances the information provided by Davis concerning November 24, 1994, events and observations was not too stale to establish probable cause for the December 16, 1994, search warrant.

III.

Foster also contends the seizure involved in this case was...