US v. Upton

• Decision Date: 11 January 1991
• Docket Number: 2).,No. CR-2-90-38(1,CR-2-90-38(1
• Parties: UNITED STATES of America, Plaintiff, v. John UPTON, Kim Montgomery, Defendants.
• Court: U.S. District Court — Southern District of Ohio

763 F. Supp. 232

UNITED STATES of America, Plaintiff, v. John UPTON, Kim Montgomery, Defendants.

No. CR-2-90-38(1, 2).

United States District Court, S.D. Ohio, E.D.

January 11, 1991.

COPYRIGHT MATERIAL OMITTED

Gary Spartis, Groveport, Ohio, for U.S.

Marcia Zand, Paul Cassidy, Columbus, Ohio, for defendants.

MEMORANDUM AND ORDER

HOLSCHUH, Chief Judge.

This matter is before the Court on the motions to suppress evidence and the supplemental motions to suppress evidence filed by defendants, John Upton and Kim Montgomery. The government filed memoranda contra both the original motions and supplemental motions, and an evidentiary hearing was held December 4, 1990. Afterwards, the parties submitted posthearing briefs.

I.

Defendants Upton and Montgomery are charged in a four-count indictment with conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute approximately sixty (60) grams of methamphetamine, possession with intent to distribute sixteen (16) grams of psilocybin, and the knowing and intentional use of premises under their ownership and control to store and distribute methamphetamine. The indictment followed the execution of a search warrant at 97 Rumsey Road, Columbus, Ohio 43207 on December 21, 1988 by detectives of the Franklin County Sheriff's Department. It is the fruits of this search which defendants are seeking to suppress.

Defendants' original motions to suppress consist of two branches. Branch one charges (1) that the magistrate issuing the search warrant, a judge of the Franklin County Municipal Court, abandoned his detached and neutral role; (2) that the warrant authorized sheriff's deputies to deliver a package containing methamphetamine in violation of Ohio's drug trafficking laws; (3) that the search warrant was a general warrant forbidden by the Fourth and Fourteenth Amendments to the United States Constitution; and (4) that the search warrant was not issued upon probable cause and that the affidavit is barren of any facts to support a finding of probable cause to search for the items set forth in the "boilerplate" paragraph of the warrant. Branch two demands suppression of the contents of the package initially opened by United Parcel Service employees and later examined, seized and tested by Franklin County Sheriff's deputies without a warrant. Defendants' supplemental motions to suppress seek to exclude as evidence the contents of certain answering machine tapes seized during the course of the December 21, 1988 search and later replayed and transcribed by Franklin County Sheriff's deputies. Defendants contend that such conduct violated their rights protected by the Fourth and Fourteenth Amendments, 18 U.S.C. §§ 2510, 2511 and Ohio Rev.Code §§ 2933.51, et seq.

II.

Mike Spiert, a detective with the Franklin County Sheriff's Department, identified government's exhibit 1 as a copy of the search warrant which he prepared upon the advice of an assistant county prosecutor. He stated that the following facts contained in the search warrant affidavit were true:

On Wednesday December 21, 1988 a driver from United Parcel Service 2450 Rathmell Road Columbus, Ohio attempted to make a delivery of a package to an address in zip code 43207. The package was a brown paper wrapped cube approximately 9" on a side addressed with a felt tip pen. During shipment the address was partially obscured due to water contamination. Visible was the first name John, last name unreadable. Also visible was the number 97 and the first three characters of the street that being RUM. Also visible was the zip code 43207. With the address partially obscured the driver following standard United Parcel proceedures sic returned the package to the address verification clerk Scott Schradle. United Parcel Service encourages all shippers to include an additional address inside the package in case of damage to the outer wrapper of the parcel.

On opening the package to determine if there was an additional address inside, Schradle discovered a zip locked package containing a white powder. The zip locked package had been sealed in a heat sealed plastic outer bag and then both bags were sealed in a third heat sealed plastic bag. Taped to the outer bag was a note with the following: 2 OZ. 1200 × 2 = $2400.00 TOTAL DUE.

Mr. Schradle then contacted Tom Fisher, Security Officer for United Parcel who in turn contacted the Sheriff's Department. Included on the outside of the package was the return address of 717 West Union Hills, Phoenix, Az. Also on the package was a code indicating to United Parcel the agency or office that originally shipped the package for the customer. This code was for the satellite agency known as Personal Mail Box, 717 W. Union Hills, Phoenix, Az. An employee of United Parcel Service contacted Personal Mail Box in Phoenix to determine if they could provide an accurate address for delivery of the package. Personal Mail Box provided Mr. Fisher with the following address: Mr. John Upton, 97 Rumsey Road, Columbus Ohio 43207.

At approximately 1:45 PM Detective Spiert took custody of the package from Tom Fisher and transported the package to The Columbus Police Crime Lab, where at 2:20 PM the white powder was tested by Nick Zonakis and Timothy Rector the material tested positive for methamphetamine, a schedule II drug, weighing a total of 55 grams. Approximately 1 gram has been removed by Det. Spiert for preservation and evidence.

Mr. Fisher has provided Cpl. Mike Powell with a United Parcel Service truck and uniform during the afternoon hours of December 21, 1988 Det. Spiert, who has maintained the package in his custody since receiving it from Mr. Fisher, Cpl. Powell will attempt to deliver the package to 97 Rumsey Road. At that time this search warrant will be executed.

Detective Spiert further testified that when he first inspected the package, it had already been opened by UPS employees and remained open. Based on the packaging, the written notations, the strong odor emanating from the package, and his experience as a narcotics detective, he believed it to be contraband. Without opening the package further, Spiert conducted a field test for cocaine which proved negative. He then contacted assistant county prosecutor Mike Burns who suggested removing a small amount of the powder for laboratory testing and arranging for a controlled delivery of the package.

Spiert stated that he followed Burns' advice, and that after taking a sample to the crime lab and awaiting test results, he took the package to his office and rewrapped it. He then prepared the search warrant and accompanying affidavit and presented them to Judge O'Grady of the Franklin County Municipal Court. According to Spiert, Judge O'Grady read the affidavit before authorizing the search and voiced no problem as to the delivery of a drug package by a sheriff's deputy.

The following language in the warrant was identical to that found in the affidavit, and was acknowledged by Detective Spiert to be the standard language used in drug search warrants:

Pursuant to 2933.21 ORC and Criminal Rule 41, evidence of the commission of the criminal offenses of Aggravated Trafficking in Drugs, 2925.03 ORC and Drug Abuse, 2925.11 ORC. Specifically a brown UPS package approximately 9" on a side containing methamphetamine, a schedule II drug. Or any other controlled substance or drug of abuse, as defined in 3719.41 ORC. Any records, ledgers, or documents indicating the trafficking in drugs. Any tools, instruments, equipment or paraphanalia sic used to manufacture, store, process or sell drugs of abuse. Any monies derived from the trafficking in drugs. Papers, documents or utility records indicating the ownership or occupancy of the premises known as 97 Rumsey Road, Columbus, Ohio. Further to photograph and fingerprint, at the scene, any adult subjects found inside the premises for the purposes of comparison to any latent fingerprints found at the scene on drug abuse evidence.

Spiert further testified that he was always taught that the language used in the warrant should match that in the affidavit.

Corporal Powell delivered the package to 97 Rumsey Road where it was signed for and received by defendant Upton. Franklin County Sheriff's deputies then executed the search warrant. Detective Spiert testified that a protective sweep of the premises was made and that defendants Upton and Montgomery, both present at the scene, were immediately detained. The package was laying unopened on a couch and, according to Spiert, was probably the first item seized. Spiert personally searched the bedroom and while there, he was informed by other officers that a telephone call had come in over the answering machine from a man who identified himself as "Sam." UPS employees had earlier traced the origin of the package to a Sam Jacobs, and had provided this information to sheriff's deputies prior to the search. Spiert then ordered the seizure of the answering machine and the tapes because they apparently contained evidence of drug trafficking and would also indicate occupancy of the Rumsey Road address. Spiert stated that answering machines and telephones are used as tools in the drug trade. Spiert further testified that officers entered the premises at approximately 5:48 p.m. and did not remain on the premises any longer than necessary to conduct the search.

Spiert was unsure when the tapes were played or whether he actually listened to them. He did not ask defendants' permission to play the tapes nor did he contact the assistant county prosecutor for legal advice prior to seizing them since he regarded their seizure as within the scope of the warrant. According to him, the tapes were later removed from the property room by Sergeant Hammond and were transcribed. One tape contained the owner's introduction. The second tape contained messages recorded from incoming calls. Both tapes were in the answering machine at the time they were seized....