US v. Green

• Citation: 178 F.3d 1099
• Decision Date: 28 May 1999
• Docket Number: No. 98-3243.,98-3243.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glenn L. GREEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

178 F.3d 1099

UNITED STATES of America, Plaintiff-Appellee, v. Glenn L. GREEN, Defendant-Appellant.

No. 98-3243.

United States Court of Appeals, Tenth Circuit.

May 28, 1999.

COPYRIGHT MATERIAL OMITTED

Brian K. Holland, Holland, Kaplan & Pagliuca, P.C., Denver, Colorado, for appellant.

Lanny D. Welch, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for appellee.

Before ANDERSON, McWILLIAMS, and LUCERO, Circuit Judges.

ANDERSON, Circuit Judge.

Glenn L. Green was convicted by a jury of two counts of possession of methamphetamine with intent to distribute and one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841. Green appeals these convictions, arguing that (1) the officers who investigated him, obtained warrants to search his residence, executed those warrants, and discovered incriminating evidence were acting outside their jurisdiction, and that therefore the searches violated the Fourth Amendment to the U.S. Constitution, and (2) the government improperly refused, until trial, to disclose the identity of a confidential informant. For the reasons stated below, we affirm.

BACKGROUND

In late October or early November 1997, officers of the Wichita Police Department (WPD) received information from a confidential informant that Green was engaged in narcotics distribution at his residence. At that time, Green resided outside the city limits of Wichita, in rural Butler County, Kansas.¹ On November 12, 1997, in an attempt to corroborate the information received from the informant, WPD Officer Chris Bannister set up a "controlled buy" of narcotics at Green's house in Butler County. WPD officers thoroughly searched the informant's person and ascertained that she had no narcotics on her person. Bannister gave the informant $1100 in cash, which had been photocopied to record the serial numbers. In the early evening of November 12, Bannister and the informant traveled together, in the informant's vehicle, to Green's residence in Butler County, which was already under surveillance by several WPD officers. While Bannister hid in the vehicle, the informant entered Green's house and returned in a few minutes with a small package. Bannister and WPD officer Frank Cook, who was conducting surveillance, both saw the informant with Green as she exited the residence. The informant then got back into the car with Bannister and drove off. A few minutes later, the informant gave the small package to Bannister; the contents of the small package were determined to be methamphetamine.

Bannister then set about obtaining a search warrant for Green's Butler County residence. He contacted Bob Bartlett, a member of the Butler County Drug Task Force,² who directed him to the Butler County district attorney and a Butler County judge. Bannister proceeded to fill out an application for a Butler County search warrant, complete with an affidavit describing the controlled buy. Butler County Judge John Jaworsky signed the warrant late in the evening on November 12. The warrant was addressed to "Officer John C. Bannister # 1624, Wichita Police Department, or any peace officer of the State of Kansas," and authorized a search of Green's residence for methamphetamine and related items. Appellant's App. at 40.

After the search warrant was obtained, WPD officers waited for Green to leave his house. About 11:30 P.M., Green was seen leaving the residence in his truck. Two WPD officers stopped Green's truck and arrested Green. In his truck and/or on his person, WPD officers found and seized a ziploc bag containing methamphetamine, over $1400 in cash, a cellular phone, and a pager. Officers also confiscated Green's keys.

A few hours later, in the early hours of November 13, WPD officers executed the Butler County search warrant. Butler County's Bartlett was present at the execution of the warrant, as were two other Butler County detectives. Using the keys found in Green's truck, the officers entered the residence. Inside the residence, officers found two ounces of methamphetamine in a plastic drink holder, as well as other small amounts of methamphetamine at other locations in the house. Officers also discovered various kinds of drug paraphernalia, including scales, plastic wrap, and baggies, as well as a firearm and two bundles of cash. Some of this money was later determined to be part of the $1100 that Bannister had given the informant. Officers also discovered a surveillance camera mounted in one of the upstairs bedrooms of the house. This camera was pointed at an old pickup truck in the driveway of the house, and the camera was set up so that a person in the living room of the house could view, on the television screen, the truck in the driveway. Officers subsequently searched the truck, and discovered 12-14 ounces of methamphetamine in a jacket under the front seat of the truck.

Approximately one month later, the same WPD officers received information from the same informant that Green was again conducting narcotics sales out of his residence. On December 10, 1997, Bannister conducted another largely identical controlled buy, using the same confidential informant, at the Butler County residence. The informant again entered the house with photocopied money given to her by WPD officers, and returned with one ounce of methamphetamine. This time, however, Bannister did not contact Butler County authorities or ask a Butler County judge for a search warrant. Rather, Bannister contacted an Assistant United States Attorney, who helped Bannister seek a federal search warrant from a United States Magistrate Judge. Bannister completed an affidavit to support his application for a federal search warrant. In that affidavit, Bannister described the results of the November search of the residence and the results of the second controlled buy conducted earlier that evening. Bannister further stated in his affidavit that, during the controlled buy, Green told the informant that he would be coming into Wichita to purchase cocaine at a specified address that same evening. Magistrate Judge Karen Humphreys issued the warrant at 12:45 A.M. on December 11. The warrant was addressed to "John Bannister and any Authorized Officer of the United States."³ Appellant's App. at 44.

While Bannister was obtaining the warrant, other WPD officers observed Green leave his residence in a van. Green proceeded to drive into Wichita, to precisely the address identified by the informant as the address at which Green was to purchase drugs, and to which Green told her, during the controlled buy, that he would travel that evening. Officers observed Green pull into the driveway at this Wichita address, exit his vehicle, and enter the front door of the house. Green was in the house for approximately one hour. After Green left the Wichita address, officers followed Green's vehicle until they observed him fail to signal a turn. At that point, WPD officers stopped Green's vehicle, arrested Green, and searched both Green and the vehicle. In the passenger compartment of the vehicle and/or on Green's person, officers discovered a plastic bag containing one ounce of white powder later determined to be cocaine, and over $1700 in cash ($300 of which was determined to be photocopied money from the second controlled buy). Officers also confiscated Green's keys.

Using the keys confiscated at the traffic stop, WPD officers returned to Green's Butler County residence and again entered it and searched it, pursuant to the federal warrant. This time, however, they were unassisted by Butler County law enforcement officers, but they were accompanied by Bruce Watts, a WPD officer who had apparently been granted statewide authority to conduct narcotics investigations by the Attorney General of Kansas. A search of the house yielded two ounces of methamphetamine and various drug paraphernalia, including scales, razor blades, and a mirror. Officers also discovered a semiautomatic pistol, as well as a new surveillance camera trained on the front yard of the house.

Based on the evidence discovered in the various searches, a federal grand jury returned a multiple-count indictment against Green, charging him with (1) possessing, with intent to distribute, 450 grams of methamphetamine discovered in the November search of the house, in violation of 21 U.S.C. § 841; (2) possessing, with intent to distribute, one ounce of cocaine discovered in the December search of his vehicle, in violation of 21 U.S.C. § 841; and (3) possessing, with intent to distribute, 55 grams of methamphetamine discovered in the December search of his house, in violation of 21 U.S.C. § 841.⁴

In February 1998, Green moved to suppress the evidence discovered in the November search of his house, the December search of his van, and the December search of his house, on the ground that the WPD officers who investigated him, conducted the controlled buy, obtained and executed the search warrants, and discovered the incriminating evidence, were acting outside their jurisdiction. Green argued that searches conducted by law enforcement officers outside their jurisdiction violate the Fourth Amendment. On March 9, 1998, the district court began to hear arguments on the suppression motion. Officer Bannister testified on March 9. However, due to time constraints, the district court was unable to conclude the hearing that day. The hearing was continued on March 13, 1998, and completed on March 30.

On March 23, 1998, after the suppression hearing was substantially completed, Green and his co-defendant filed a motion to compel the government to disclose the identity of the confidential informant.

On May 1, 1998, the district court denied Green's motion to suppress on all counts. However, because "the government had not responded in opposition" to the defendants' motion for disclosure of the informant's identity, the district court granted...