US v. McIntyre, Case No. 8:09CR62.
| Decision Date | 04 February 2010 |
| Docket Number | Case No. 8:09CR62. |
| Citation | 683 F. Supp.2d 1020 |
| Parties | UNITED STATES of America, Plaintiff, v. David McINTYRE and Kathi McIntyre, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Nancy A. Svoboda, Assistant United States Attorney, Omaha, NE, for Plaintiff.
James K. McGough, McGough Law Firm, Omaha, NE, for Defendants.
This matter is before the Court on the objections filed by the Defendant David McIntyre (Filing No. 78) and by the Defendant Kathi McIntyre (Filing No. 76) to the Magistrate Judge's: (1) oral order (Filing Nos. 61, 62) denying the Defendants' motion for reconsideration (Filing No. 59) of the Magistrate Judge's previous order (Filing No. 57) denying a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); and (2) findings and recommendation (Filing No. 75) denying the motions to suppress (Filing Nos. 15, 34) filed by the Defendant, David McIntyre, and the motion to suppress (Filing No. 56) filed by the Defendant, Kathi McIntyre.
In his Memorandum and Order, Judge Thalken set out a detailed factual summary. Briefly, on December 8, 2008, Nebraska State Patrol ("NSP") Investigator Jason Sears and Nebraska State Trooper Lueders contacted the Defendant, David McIntyre ("McIntyre"), outside his Fremont, Nebraska, residence during their investigation of a missing person case. A person of interest sold a trailer to McIntyre that might have been used to dispose of a vehicle relating to the missing person case. While walking past a vehicle in the driveway, Investigator Sears noticed a pen tube in the ashtray, which he thought was a "tooter" used to ingest controlled substances. Inside the residence, Investigator Sears smelled a strong odor of raw marijuana and had an allergic reaction to the odor. McIntyre was nervous, and his hands shook. McIntyre said the trailer was loaded with wood and was at his cabin in Crofton, Nebraska, or at Mark Narke's residence. McIntyre called Narke and told him to get the trailer to Narke's residence in Santee, Nebraska, unload the wood, and have the trailer at Narke's residence before NSP officers arrived. On December 8, 2008, Investigator Sears and Trooper Lueders went to Narke's residence and saw nothing unusual.
On January 9, 2009, at approximately 7:00 a.m., Investigator Sears and Cedar County Sheriff Koranda drove past McIntyre's Crofton residence. They saw an Oldsmobile backed up to a garage. When they returned at 1:00 p.m. the Oldsmobile was gone. The officers got out of their car, and Investigator Sears saw a couple of unusual things when looking at the garage, including a hanging shingle as well as a small hose protruding from under the garage door. Investigator Sears smelled a strong odor of raw marijuana near the garage, and the smell caused him to suffer symptoms that he described as an allergic reaction. Investigator Sears ran McIntyre's record and found two prior drug-related arrests. Based on the instances of smelling raw marijuana and McIntyre's criminal history, Investigator Sears decided to obtain McIntyre's power usage records. A subpoena was needed for the Crofton records. NSP Investigator Douglas Kelley obtained a subpoena and received records for the Crofton property, which showed a huge spike in electrical usage for November 2008.1 The general manager of the public power district told Investigator Sears that McIntyre's usage seemed higher than that of neighboring properties.
On January 14, 2009, a Knox County judge issued a thermal imaging warrant for McIntyre's Crofton residence after Investigator Kelley presented a search warrant affidavit referring to Investigator Sears's allergic reactions from smelling raw marijuana at both of McIntyre's residences, McIntyre's drug arrest history, the "tooter," and information regarding the use of thermal imaging in locating marijuana-growing operations. The warrant was executed and returned with a recording of thermal imagery showing more electrical usage in the garage than in the living areas of the Crofton residence.
On January 15, 2009, Investigator Kelley obtained a second warrant to conduct thermal imagery. On its face, the warrant was for McIntyre's Crofton residence. Investigator Kelley testified that his purpose was to obtain representative comparisons of readings from other residences in the area. Investigator Kelley also testified that, although this information was not included in the application and affidavit that mirrored the January 14, 2009, application and affidavit, he told the issuing judge about his wish to obtain information from nearby homes for comparison purposes. This warrant was executed and returned with a recording of thermal imagery showing that in the neighboring residences the usage was higher in the living areas as opposed to the accompanying garages.
Based on the information set out in the thermal imagery search warrant affidavits and the thermal imagery obtained as a result of the warrants, on January 16, 2009, a search warrant was issued for a search of McIntyre's Crofton residence. In executing the warrant, a marijuana growing operation was seized.
A search warrant was also issued for McIntyre's Fremont residence on January 16, 2009. No evidence was found during execution of the warrant, and this warrant is not a subject of these proceedings.
Judge Thalken denied the Defendants' request for a Franks hearing. Also, he concluded that the Defendants do not have standing to contest the thermal imaging of the neighboring residences near McIntyre's Crofton home and, moreover, that the Defendant, Kathi McIntyre ("Ms. McIntyre"), lacks standing to challenge the subpoena for McIntyre's electric usage records and the thermal imaging warrants. Assuming, however, for the sake of argument, that the Defendants have standing to contest the searches of those residences, Judge Thalken concluded: a warrant was not needed to obtain McIntyre's utility use records; even if Investigator Sears violated state law in obtaining McIntyre's utility use records, no Fourth Amendment violation occurred; the search warrant affidavits submitted in support of the applications for warrants for the thermal imaging and McIntyre's Crofton residence contained sufficient probable cause to support their issuance; and, even assuming that probable cause did not exist with respect to the thermal imaging or Crofton residence, the good faith exception set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) applied. Therefore, Judge Thalken recommends that the Defendants' motions to suppress be denied.
A district court may set aside any part of the magistrate judge's order, on a non-dispositive matter, shown to be clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A).
Defendants allege that the applications for the search warrant of David McIntyre's Crofton cabin and the two warrants for thermal imagery searches of the cabin included false statements made intentionally or with a reckless disregard for the truth. Specifically, Defendants refer to a statement that the affiant learned that the kilowatt usage for the property was unusually high for November of 2008.2 Defendants also argue that information regarding investigators' desire to obtain thermal images of neighboring properties for comparison with similar information already obtained from the cabin was orally stated to the issuing judge but omitted from the affidavit. Defendants also argue that the statements in the affidavits regarding an allergic reaction experienced by Investigator Sears of the Nebraska State Patrol upon smelling raw marijuana inside David McIntyre's Crofton cabin and outside his garage on the Crofton property are false, because no evidence was presented indicating that Investigator Sears suffers from a diagnosed allergy. Finally, Defendants argue that the shingle hanging down and the hose protruding from the garage were not in plain view.
To obtain a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Defendants must: 1) make a "substantial preliminary showing" that the affidavit contains false information deliberately or in reckless disregard for the truth; and 2) the information is necessary for a finding of probable cause. United States v. Kattaria, 553 F.3d 1171, 1176 (8th Cir.2009), cert. denied, ___ U.S. ____, 130 S.Ct. 771, ____ L.Ed.2d ____ (2009). The same analysis applies to omissions of fact. The defendant must show: (1) facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.2001); United States v. Gladney, 48 F.3d 309, 313 (8th Cir.1995). This "substantial preliminary showing" is "not lightly met." United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995). If the affidavit is sufficient to establish probable cause with the false material removed or with the omitted material included, no evidentiary hearing is required. United States v. Crook, 936 F.2d 1012, 1014 (8th Cir.1991). Probable cause is defined as a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
If the allegedly false information is excluded from the affidavits, the affidavits describe the following: the presence of a pen tube (indicative of controlled substance use) in McIntyre's vehicle; the smell of raw marijuana inside the cabin; McIntyre's nervousness and shaking hands while talking with Investigator Sears; events surrounding the temporary presence of a vehicle parked backed up to the garage at 7:00 a.m.; the smell of raw marijuana outside the garage; McIntyre's prior...
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U.S. v. Mcintyre, 10–3111.
...information is deficient because that statute relates only to identifying information and not to usage records.” United States v. McIntyre, 683 F.Supp.2d 1020, 1026 (D.Neb.2010) (emphasis added). Therefore, we conclude that McIntyre's Fourth Amendment rights were not violated by law enforce......