United States v. Lucas

1

UNITED STATES OF AMERICA, Plaintiff, v. ERNEST LUCAS (01), Defendant.

No. 22-20032-01-DDC

United States District Court, D. Kansas

November 29, 2023

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE.

Defendant Ernest Lucas filed a Motion for Franks Hearing and to Suppress Evidence (Doc. 105). Mr. Lucas asks the court to suppress two kinds of evidence. First, he seeks to suppress footage from a pole camera that police officers installed on a utility pole outside Mr. Lucas's home. Second, he seeks to suppress evidence secured through a warranted search of that same home. Mr. Lucas also asks the court to conduct a Franks hearing, by which the court may exclude evidence discovered under a search warrant if the affiant “‘knowingly or recklessly included false statements in or omitted material information from'” a supporting affidavit. United States v Smith, 846 Fed.Appx. 641, 648 (10th Cir. 2021) (quoting United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010)). Mr. Lucas's requests are highly interrelated. His motion to suppress the evidence secured through the house search and his motion for a Franks hearing both depend on the successful suppression of the pole camera footage. Because this interrelatedness is crucial to the court's holding, the court explains it more comprehensively, below.

Mr Lucas first argues that the court should suppress the pole camera footage because the pole camera surveillance constituted an unwarranted search violating Mr. Lucas's Fourth Amendment rights. If the court suppresses that footage, then, Mr. Lucas contends, the court must excise any references to the footage from a warrant affidavit. That affidavit supported law enforcement's application to search Mr. Lucas's home. In its excised form, he claims the affidavit fails to support probable cause. So, premised on this excised affidavit, Mr. Lucas also asks the court to suppress evidence secured through the search warrant's execution on Mr. Lucas's home. And, Mr. Lucas asks the court to conduct a Franks hearing. He contends the warrant's limited remaining information-after the court excises the pole camera footage- contained false statements or omissions that justify a Franks hearing.

The government disagrees. It contends there's no need to suppress any evidence and no need for a Franks hearing. The government also asserts that, in any event, the good faith exception applies. So, even if a constitutional violation occurred, the court shouldn't suppress the evidence secured by the warranted search.

This Order denies the Motion for Franks Hearing and to Suppress Evidence (Doc. 105). Under Tenth Circuit precedent the pole camera surveillance doesn't amount to a search. So, the court declines to suppress the pole camera footage. Mr. Lucas relies on the pole camera footage's suppression to excise the affidavit. Without the affidavit excised, the court concludes there's no reason to suppress the evidence from the search of Mr. Lucas's home or to conduct a Franks hearing. So, this Order denies the motion in full. The court needn't reach the government's good faith exception argument.

This Order explains these decisions, first, by reciting the background facts. Second, the Order evaluates the alleged Fourth Amendment violation arising from the pole camera surveillance. Third, the Order analyzes the sufficiency of probable cause leading to the warrant to search Mr. Lucas's home. Finally, the Order addresses Mr. Lucas's request for a Franks hearing and concludes with the court's overarching conclusions.

I. Background

The court held an evidentiary hearing on the motion on October 31, 2023. Unless otherwise noted, the court derives the following factual findings from evidence presented at that hearing.

Pole Camera Installation

On May 11, 2022, the Kansas City, Kansas Police Department and the Bureau of Alcohol, Tobacco, and Firearms installed a pole camera on a utility pole outside defendant Ernest Lucas's property on Ruby Avenue, in Kansas City, Kansas. Law enforcement agents didn't secure a search warrant authorizing the installation. The agents initiated the installation as part of an ongoing investigation into one of Mr. Lucas's co-defendants, Chaz Hicks. Doc. 105 at 2. During that Hicks investigation, agents secured a search warrant for Mr. Hicks's phone and began receiving pings from it on April 16, 2022. Id. at 2-3. These pings pinpointed Mr. Hicks's location via GPS. Id. at 3. Based on these location pings, agents decided to place a pole camera outside Mr. Lucas's Ruby Avenue home.

Ruby Avenue Property Surveillance

The pole camera surveillance in front of Mr. Lucas's home captured footage of the street, part of his driveway, his front yard, and the bottom corner of his residence. The agents installed the camera by accessing a utility pole from public property. Law enforcement officers could manipulate the camera remotely-zooming in or out and panning right or left-by clicking a link on a cell phone or computer. Mr. Lucas's Ruby Avenue home sits on a dead-end street, with barriers at the street's end preventing vehicles from proceeding further. The property is located in a wooded area within the city of Kansas City, Kansas. Mr. Lucas's property contains two homes. Other than those two structures, no neighboring homes sit in close proximity. Id. at 6.

The pole camera surveillance continued for 57 days. Id. at 9. During that time, Mr. Lucas was on house arrest based on a bond condition in a pending Johnson County, Kansas case. Id. at 3. Investigating agents made a list of the license plates and vehicles that the pole camera captured arriving and departing from the Ruby Avenue home. Law enforcement officials used this information to identify multiple co-defendants.

The Search Warrant for the Ruby Avenue Home

The pole camera surveillance footage also played a role in the Ruby Avenue home search. Detective Jakob Blackman, one of the law enforcement agents involved in the relevant investigations, repeatedly referenced the pole camera footage in his supporting affidavit to secure a search warrant for the Ruby Avenue home. Id. at 11. Law enforcement officials executed the search warrant on July 6, 2022. Id. During this execution, law enforcement recovered a cell phone, multiple firearms, ammunition, narcotics, and drug-related paraphernalia. Id.

Mr. Lucas challenges the pole camera surveillance's constitutionality and, as a result, the home search's supporting affidavit. The court addresses the pole camera surveillance first, below.

II. Pole Camera Surveillance

Mr. Lucas argues that the court should suppress all evidence from the pole camera's warrantless use because it constituted a search in violation of his Fourth Amendment rights. Id. at 14. The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. A party can establish that a search violates this Fourth Amendment protection when the search either “infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space[.]” United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (emphasis in original). To demonstrate a reasonable expectation of privacy, a party “‘must show that he had a subjective expectation of privacy . . . and that society is prepared to recognize that expectation as reasonable.'” United States v. Wells, 739 F.3d 511, 522 (10th Cir. 2014) (quoting United States v. Rhiger, 315 F.3d 1283, 1285 (10th Cir.2003)).

Here, Mr. Lucas advances three arguments to demonstrate that he possessed a reasonable expectation of privacy in the area surveilled by the pole camera. First, Mr. Lucas contends that he had an “especially strong” expectation of privacy in the area surveilled “because his home is located in an isolated part of Kansas City,” on a dead-end street without neighbors. Doc. 105 at 14. Second, he argues that, due to his house arrest, the pole camera footage captured all his associations during the 57-day timeframe. Id. at 16. This compendium of his associations opened “an intimate window” into his life that violated his expectation of privacy in a manner similar to the long-term tracking of cell phone location data in United States v. Carpenter, 138 S.Ct. 2206 (2018). Id. Third, Mr. Lucas's reply asserts that he possessed a reasonable expectation of privacy in the area captured by the pole camera surveillance because that area is curtilage. Doc. 112 at 5. The court addresses each of these expectation of privacy arguments in turn.

A. Mr. Lucas's Expectation of Privacy and His Home's Isolation

Mr Lucas asserts agents invaded his reasonable expectation of privacy when they “conducted nearly 57 days of [continuous] home surveillance[.]” Doc. 105 at 14. He further contends that his home's location in an isolated part of Kansas City heightens that expectation because “investigating agents admit that it would be impossible to surveil Mr. Lucas'[s] home in a traditional stake-out manner.” Id. The government responds that Mr. Lucas hasn't supported sufficiently an expectation of privacy: he hasn't proven “that the street outside of his house would be free from observation by others” and “everything he argues about having been surveilled in violation of the Fourth Amendment occurred in the middle of the street on public property.” Doc. 111 at 9-10. Also, the government cites Tenth Circuit precedent which holds that a defendant similarly moving for suppression of warrantless pole camera footage “‘had no reasonable expectation of privacy that was intruded upon by the video cameras.'” Id. at 12 (quoting United States v. Jackson, ...