United States v. Powers, 1:13–CR–464–1.

1 F.Supp.3d 470

UNITED STATES of America

v.Ronald Earl David POWERS, a/k/a Ronald Earl Powers, Jr., Defendant.

No. 1:13–CR–464–1.

United States District Court, M.D. North Carolina.

Feb. 19, 2014.

Terry Michael Meinecke, U.S. Attorney's Office, Greensboro, NC, for United States of America.

Bryan Emery Gates, Jr., Winston–Salem, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

CATHERINE C. EAGLES, District Judge.

This matter is before the Court on a motion to suppress filed by the defendant Ronald Powers. (Doc. 10.) Mr. Powers contends that evidence seized during a search of 421 South Lee Street, Salisbury, North Carolina, on May 15, 2012, should be suppressed because the warrant authorizing that search was not supported by a showing of probable cause. The Court finds there was no probable cause and that it was not reasonable for the executing officer to rely on the search warrant, and therefore the Court will grant the motion.

The record reflects and the Court finds that on May 15, 2012, Sergeant N.T. Sides of the Salisbury Police Department applied to the General Court of Justice in Rowan County for a search warrant of 421 South Lee Street in Salisbury. In the application, Sergeant Sides provided the following sworn testimony, set forth in its entirety:

On 05/15/12, Detective Shulenburger, Officers Bouk, Gibson, Benjamin and myself; [sic] went to 421 South Lee Street in an attempt to locate Willie James Johnson Jr. Willie James Johnson Jr. is a black male with a date of birth of [redacted.] Johnson had a warrant for his arrest stemming from the 04/10/2012 robbery of Dominos Pizza (warrant is for armed robbery). In this robbery, two black males entered the store, with black semi-auto handguns, and robbed the establishment of U.S. currency.

Detective Shulenburger and I had received information from a confidential and reliable informant that they had seen Willie Johnson Jr., along with powder cocaine and ecstasy, inside of the residence of 421 South Lee Street, within the past 24 hours. The informant also advised that they [sic] had seen a shotgun inside of the home within the past 72 hours.

It was decided that we would attempt to knock on the door of 421 South Lee Street and see if we could get Willie James Johnson Jr to come out and surrender to us. Officer Benjamin and I went to the front door of the residence while Officers Bouk and Gibson, along with Detective Shulenburger, went to the back of the residence (in case anyone ran). As Officer Benjamin and I pulled up in front of the residence, we heard Officer Gibson yelling in the backyard of the home. It was found that Willie James Johnson Jr, and another black male, ran out of the back of the house upon our arrival. Detective Shulenburger gave chase to Johnson and caught him a short distance later in the woods. Once we secured Johnson we went back to the residence where Officers Bouk and Gibson had secured the residence.

(Doc. 10–1 at 4.) ¹

The application asserted that there was probable cause to believe that evidence of the crimes of “Robbery—Narcotics” was located at 421 South Lee Street. ( Id. at 2.) The application sought the seizure of the following:

Any evidence relating to the 04/10/2012 robbery of Domino's Pizza that would include: any weapons, ammunitions, knives, holster or firearm related articles, fingerprints, shoe prints or impressions, blood or other bodily fluids, clothing, hair, fibers, or any other forensic evidence.

Any Scales, plastic baggies, manila envelopes, sifters, and similar instruments used in the bagging and selling of cocaine or the sale of ecstasy.

A large quantity of paper money in United States Currency.

The following writings, dated and existing over the past six months; utility bills, mailed envelope covers, bank statements, credit card bills, and similar writings to show occupancy, control, and/or possession of the place to be searched.

Any notebooks or telephone records showing or recording the names or telephone numbers of persons likely engaged in the illegal sale of cocaine or other controlled substances.

Cocaine and/or any other controlled substance included in the North Carolina Controlled Substances Act and possessed in violation of Chapter 90 of the North Carolina General Statutes[.]

( Id. at 5.) The search warrant was issued by a judge in Rowan County. ( Id. at 1.) Sergeant Sides conducted a search of the residence.²

Mr. Powers contends the information provided in the application was insufficient to provide probable cause for a search warrant because it did not provide the judicial officer with information to make an independent determination about the informant's reliability, because it did not provide facts sufficient to make a connection between the robbery and the residence, and because it is a “bare bones” warrant. ( See Doc. 10.) The Government contends that the search warrant was supported by probable cause and that, in any event, the officers reasonably relied upon the determination made by the judicial official who issued the warrant.

1. Probable Cause

The task of a judicial officer evaluating a request for a search warrant is “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is 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). The Fourth Amendment expresses a “strong preference for warrants,” which “is most appropriately effectuated by according ‘great deference’ to a magistrate's determination.” United States v. Leon, 468 U.S. 897, 913–14, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). Thus, “courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); accord Gates, 462 U.S. at 236, 103 S.Ct. 2317. A reviewing court's duty “is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Gates, 462 U.S. at 238–39, 103 S.Ct. 2317 (internal quotation marks and alterations omitted). Probable cause exists where, given the totality of the circumstances, “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” in the place to be searched. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see Gates, 462 U.S. at 238, 103 S.Ct. 2317.

The search warrant here authorized law enforcement to search the residence for evidence of three crimes: the April 10, 2012, armed robbery of Domino's; drug trafficking; and possession of illegal drugs. To the extent the warrant authorizes a search for evidence related to the armed robbery and to drug trafficking, it is clearly insufficient. It is a closer question as to the possession, but the Court concludes that the warrant is insufficient on this ground as well given the totality of the circumstances.

As to the armed robbery, the mere presence of a robbery suspect in a third party's residence more than four weeks after the robbery is insufficient to establish probable cause to search the residence for evidence about the robbery.³See, e.g., United States v. Jones, 69 Fed.Appx. 401, 404 (10th Cir.2003); United States v. Savoca, 739 F.2d 220, 224–25 (6th Cir.1984); United States v. Flores, 679 F.2d 173, 175 (9th Cir.1982); United States v. Bailey, 458 F.2d 408, 412 (9th Cir.1972). “In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched.” United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993). Here, there is nothing to suggest that evidence of the robbery would be found at 421 South Lee Street. The affidavit does not suggest that Mr. Johnson lived there, that he had been seen in possession of firearms there, that he had been in the home immediately or even soon after the robbery, or that firearms similar to those used in the robbery had been seen in the home. There are no facts connecting the residence to evidence related to the robbery, and there is no probable cause to search the residence for evidence related to the robbery. Cf. Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (holding that an arrest warrant is insufficient to provide authority to enter the home of a third person to look for the suspect.)

Similarly, the affidavit in support of the warrant provides no evidence that any drug sales were happening at the residence and no facts to support the inference that the residence was used to prepare or store drugs for sale. The informant's report merely indicated that he saw unspecified amounts of ecstasy and powder cocaine in the house. This is insufficient to warrant a reasonable belief that evidence of narcotics trafficking would be found. Facts related to one crime, drug possession, cannot justify a search warrant for evidence of the entirely different crime of drug trafficking. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008) (holding search warrant defective where affiant established probable cause for child molestation but obtained warrant for search of evidence of child pornography); see also United States v. Doyle, 650 F.3d 460, 472 (4th Cir.2011) (holding information in affidavit concerning allegations of sexual assault did not support probable cause to search for child pornography (citing Hodson, 543 F.3d at 292)); cf. United States v. Garcia, 809 F.Supp.2d 1165, 1170–71 (N.D.Cal.2011) (holding invalid warrant to search known drug user's home for evidence of narcotics paraphernalia and packaging and...