United States v. Morton

UNITED STATES OF AMERICA v. FRED MORTON, Defendant.

Criminal No. 3:17-cr-161

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

February 2, 2018

MEMORANDUM OPINION

This matter is before the Court on Defendant's MOTION TO SUPPRESS (ECF No. 16) all evidence and information seized during the execution of a search warrant at 1704 Mechanicsville Turnpike on October 6, 2017.¹ For the reasons discussed below, the motion will be denied.

BACKGROUND

On October 5, 2017, Officer Eric O'Brien ("O'Brien") of the Richmond Police Department presented to a state magistrate an affidavit for a search warrant² for the residence and curtilageof 1704 Mechanicsville Turnpike, Richmond, Virginia. Search Warrant (ECF No. 16-1) at 2.³ The affidavit described in detail the location and appearance of the residence at that address, as well as the items to be searched for and seized.⁴ Id. For the "material facts constituting probable cause that the search should be made," O'Brien attached a page that stated, in relevant part:

On or about July and August of 2017, investigators observed heavy foot and vehicle traffic originating from 1704 Mechanicsville Tpke., in particular the rear alley area and the corner of the alley and Redwood Ave. which is just 2 lots away from 1704 Mechanicsville Tpke.

On or about August 16^th of 2017, [O'Brien] and investigators conducted a controlled purchase of suspected crack cocaine from a dealer in the immediate area of Redwood Ave. and Mechanicsville Tpke.

On October 5, 2017, [O'Brien] conducted a "trash pull" at 1704 Mechanicsville Tpke in order to confirm or dispel if this address is involved in narcotics distribution. [O'Brien] went to the rear of this address and observed a green city of Richmond garbage can outside of the fence line of the address in the alley. This garbage was putout for collection, and the city of Richmond lists Thursday as the collection day for this address. [O'Brien] retrieved from this garbage can one black garbage bag that had been tied off, hereafter referred to as Bag 1; and one open black garbage bag, hereafter referred to as Bag 2.

These items were secured in a separate empty garbage bag and transported to 1^st Precinct. At 1^st Precinct [O'Brien] sorted through the collected items.

From Bag 1 [O'Brien] collected 9 whole sandwich bags with white powder residue on them, 4 whole sandwich bags with no residue on them, 6 sandwich bags with the corners missing, and 3 ripped sandwich bags with knots in them. Also collected from Bag 1 was an empty carton of baking soda, a tied bag containing approximately 30 unmarked brown pills [O'Brien] suspect[ed] to be some sort of vitamin (such as B12), and 1 document with the name "Latesha Eberhardt" written on it.

From Bag 2, [O'Brien] collected 2 whole sandwich bags with white residue, 7 whole sandwich bags with no residue, and 1 sandwich bag with the corner ripped off. Also collected from Bag 2 was 1 one dollar bill and a google maps document giving directions, with a starting address of 1704 Mechanicsville Tpke.

In one of the whole sandwich bags with residue from Bag 2 [O'Brien] observed some particles appearing to be an off white rock like substance. It was enough for a cocaine field test. [O'Brien] conducted a field test on the narcotics sample and it was positive for the presence of cocaine.

Id. at 5. A separate attachment also stated that, based on three years of experience in narcotics investigations, O'Brien knew that individuals trafficking narcotics often keep records of controlled substance purchases and sales in their residences and "stash houses[s]," and keep receipts, money transfers, ledgers, firearms, and ammunition in their residences. Id. at 7.

After reviewing this information, the magistrate issued the warrant at 11:46 a.m. on October 5, 2017. Id. at 1. During the ensuing search of 1704 Mechanicsville Turnpike on October 6, the police seized an AK-47 firearm with ammunition, green plant material and a grinder, U.S. currency, several security cameras, digital scales, a Pyrex cup with white residue, and a container with a false bottom. Id. at 4; Criminal Complaint (ECF No. 1) ¶ 6. Defendant was arrested during the execution of the search and advised of his rights. He admitted that the seized property was his, including the AK-47, and that he deals drugs. Criminal Complaint ¶ 7. A subsequent review of Defendant's criminal history revealed that he has five previous felony convictions. Id. ¶ 8.

On December 5, 2017, Defendant was indicted on one count of possession of a firearm by a convicted felon. ECF No. 13 at 1.After pleading not guilty at his arraignment, Defendant filed this motion on January 3, 2018. ECF. No. 16.

At the suppression hearing, after O'Brien reviewed a map of 1704 Mechanicsville Turnpike and the surrounding neighborhood, he clarified that the controlled purchase referenced in the affidavit began at the intersection of the alley behind Mechanicsville Turnpike and Redwood Avenue, after which an individual went to 1616 Mechanicsville Turnpike to retrieve the narcotics being purchased before the transaction was finalized on Carver Street near the intersection with Mechanicsville Turnpike. O'Brien also stated that the area around Mechanicsville Turnpike and Redwood Avenue was a high-crime area. Finally, he said that he had searched the trashcan behind 1704 Mechanicsville Turnpike only after an individual stated, when being debriefed after his arrest, that there was suspicious narcotics activity at that address. The individual further stated that Defendant was involved in narcotics distribution, and that he had seen Defendant with a firearm inside 1704 Mechanicsville Turnpike. However, O'Brien confirmed that none of this new information revealed at the hearing was included in the warrant application.

DISCUSSION

The Fourth Amendment guarantees "[t]he right of the people to be secure in their . . . houses, papers, and effects, against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV. Except in limited circumstances not at issue here, a search of a house must be authorized by a search warrant issued on a showing of probable cause. United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004). Probable cause exists where, looking at the totality of the circumstances, Maryland v. Pringle, 540 U.S. 366, 371 (2003), "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696 (1996); see also Illinois v. Gates, 462 U.S. 213, 232 (1983) (probable cause is "a fair probability that contraband or evidence of a crime will be found in a particular place"). This concept is a "fluid" one depending on the particular facts of a case, and is thus "not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. Moreover, "a finding of probable cause does not require absolute certainty." United States v. Gary, 528 F.3d 324, 327 (4th Cir. 2008); seealso Taylor v. Farmer, 13 F.3d 117, 121 (4th Cir. 1993) (probable cause standard does not "require officials to possess an airtight case before taking action").

A court reviewing a magistrate's determination of probable cause does not assess the existence of probable cause de novo. Rather, the court must only ascertain whether "the magistrate had a substantial basis for concluding that probable cause existed." Gates, 462 U.S. at 238-39 (internal quotations omitted); see also United States v. Lull, 824 F.3d 109, 115 (4th Cir. 2016). In doing so, courts should accord the magistrate's determination "great deference," and should not invalidate warrants by "interpreting [them] in a hypertechnical, rather than commonsensical, manner." Gates, 462 U.S. at 236 (internal quotations omitted). Where, as here, a defendant challenges the sufficiency of an affidavit underlying a search warrant, a reviewing court may look only at the information actually provided to the magistrate in the warrant application process. Lull, 824 F.3d at 119 n.3; see also Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971) ("[A]n otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate."). Reviewing courts "mustconstrue th[at] evidence in the light most favorable to the prevailing party and give due weight to inferences drawn from those facts by resident judges and law enforcement officers." Lull, 824 F.3d at 115 (internal quotations omitted).

As a general rule, the defendant who seeks to suppress evidence "bears the burden of showing that he had some interest which rendered his expectation of privacy legitimate." United States v. Dawson, 7 F. App'x 208, 209 (4th Cir. 2001) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove, by a preponderance of the evidence, that the challenged evidence is admissible. United States v. Seerden, 264 F. Supp. 3d 703, 708 (E.D. Va. 2017) (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Matlock, 415 U.S. 164, 178 (1974)).

Defendant moves to suppress the evidence seized at 1704 Mechanicsville Turnpike for two related reasons. First, he argues, O'Brien's affidavit did not establish probable cause for the search because it did not mention any attempts to make a controlled purchase directly from that address, rather than in its vicinity; it lacked information about foot traffic coming in and out of that address; and there were no indications thatpolice tried to determine if the items in the trashcan behind the house were placed there by its occupants or other people. Second, Defendant contends that the good faith exception to the exclusionary rule, set forth in ...