SUSAN RUSS WALKER, Magistrate Judge.
This case is before the court on defendant's motion to suppress evidence. Doc. 16. For the reasons discussed below, the court concludes that the motion to suppress is due to be denied.
Defendant seeks to suppress "all evidence seized during his arrest, and his statements given, and the Harrison and Richardson[] Topper Model 158[] 12 gauge shotgun, and any ammunition, on or about January 12, 2018." Doc. 16 at 1. Defendant also seeks suppression of "all fruits of the illegal arrest of [defendant], searches and seizures, and [defendant's] multiple confessions and statements." Id. at 5. The court addresses each category of evidence in turn.
Defendant does not actually identify in his motion any confessions or statements that he proposes for suppression by the court, or offer any facts or argument relating to such statements. The court cannot recommend suppression of statements that either do not exist or, if they do, were not specifically brought to its attention. See United States v. Porter, 2018 WL 4214189, at *11 (M.D. Ala. 2018) (statements were not required to be suppressed where defendant did not advise the court — through his motion or argument at the suppression hearing — what the statements were that he wished to have suppressed; no testimony was provided at the hearing as to the contents of the statements, when and to whom the statements were made, how much time elapsed between the seizure of the evidence and the statements, whether defendant was in custody at the time he made the statements, and whether the statements were even incriminating in the first place; and defendant offered no argument whatsoever as to why the statements should be considered the "fruit of the poisonous tree" or whether they somehow stood alone.). See also United States v. Edwards, 563 F.Supp.2d 977, 994 (D. Minn. 2008) ("At the end of the day, as the moving party, at a minimum it is defendant's burden to come forth with some evidence and argument to support his position that evidence, statements or a witness identification should be suppressed."); United States v. Diezel, 608 F.2d 204, 207(5th Cir. 1979) ("As this Court said in United States v. Evans, ... `The burden is on the movant to make specific factual allegations of illegality, to produce evidence, and to persuade the court that the evidence should be suppressed.'") (citation omitted); United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977) ("It is well established that the burdens of production and persuasion generally rest upon the movant in a suppression hearing.").
The physical evidence that defendant seeks to suppress was secured by the government through the execution of a search warrant on January 12, 2018. The warrant, which was for the search of 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama, was signed on January 11, 2018 by Montgomery County District Court Judge Jimmy B. Pool. Id. at 1-2; Doc. 16-1 at 4.
The grounds for defendant's motion fall into two categories. First, defendant contends that the search warrant was not supported by probable cause because the affidavit used to obtain the warrant did not establish a nexus between the place searched and the claimed illegal activity that was sufficient to support a determination that the items sought to be seized would be found in the place and location sought to be searched. Id. at 3. Thus, defendant argues, the search violated the Fourth Amendment. Id. at 2. Defendant further contends that the affiant acted with "reckless disregard of the facts." Id. at 7. Defendant requests a Franks hearing "to determine whether there would have been probable cause for the warrant" without the identified paragraphs.
Second, defendant points out that while a "supplementary offense report" states that a shotgun was seized, the initial inventory report does not list the shotgun. Defendant appears to believe that this fact supports his suppression motion. However, he does not make a discrete argument regarding the unconstitutionality of this omission in the initial inventory form that accompanied the warrant return, nor does he explain how the failure to include it in the initial inventory provides a basis for suppression of any evidence.
The court turns first to defendant's probable cause argument.
The Fourth Amendment mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. IV. In issuing a warrant, a judge is "simply 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, 2332, 76 L.Ed.2d 527 (1983) (quotation omitted); see also United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000) (quoting Gates, 462 U.S. at 238). The court must find only that the judge had a "substantial basis" for concluding that probable cause existed to uphold the warrant. See Gates, 462 U.S. at 238; see also Massachusetts v. Upton, 466 U.S. 727, 728 (1984). The validity of the warrant is reviewed based on the totality of the circumstances. See United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.1999). "`[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts[.]'" Id. (quoting Gates, 462 U.S. at 232).
"Courts reviewing the legitimacy of search warrants should not interpret supporting affidavits in a hypertechnical manner; rather, a realistic and commonsense approach should be employed so as to encourage recourse to the warrant process and to promote the high level of deference traditionally given to magistrates in their probable cause determination." United States v. Miller, 24 F.3d 1357, 1361 (11th Cir.1994). Suppression of evidence is only required where the affidavit supporting the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S. 590, 610-11 (1975). "[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Upton, 466 U.S. at 734 (citation and internal quotation marks omitted).
In this case, the warrant affidavit was signed under oath by "Det. S.A. Lisenby #2435 of the Montgomery Police Department." Doc. 16-1 at 1-4. The affidavit supporting the warrant application consisted of four pages. It reported, inter alia, that Michael Conway was suspected of having committed the crime of unlawful breaking and entering of a motor vehicle and/or receiving stolen property and that the affiant believed Michael Conway was living at 5600 Carmichael Road apartment 2321, Montgomery, AL 36117.
According to the affidavit,
Doc. 16-1 at 1-4 (brackets supplied). Judge Pool signed and the Montgomery County District Court issued the warrant on January 11, 2018. Id. at 4.
Officers executed the warrant on January 12, 2018 and Lisenby returned the warrant, with an inventory log attached to it, on January 16, 2018. Doc. 16-2. On a handwritten sheet of paper, he listed the following as having been seized during the search:
Doc. 16-2 at 4 (bullets supplied).
A second inventory form that was filed with the warrant return lists the following items as having been seized during the search:
Doc. 16-2 at 5 (brackets supplied). The bottom of the form, in handwritten text, states, "No further items." Id.
Thereafter, Lisenby completed a "supplementary offense report" with "follow-up" information. Lisenby appears to have drafted this report on January 13 — the day after the search. The "[d]ate, [t]ime of [s]upplement" is listed as "1/13/2018." Doc. 16-3 at 1.
Doc. 16-3 at 1-3 (brackets supplied) (emphasis added).
Defendant Grier's claim concerning Judge Pool's finding of probable cause based on the affidavit is, in essence, that the affidavit "listed four separate paragraphs" in which the affiant "linked" Conway's address — 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama — to the "theft of tools" and that "these paragraphs considered individually or as a whole are insufficient to establish a nexus between Grier's residence and Conway's criminal activity."
A warrant affidavit "`should connect the place to be searched with the defendant and the criminal activity.'" United States v. Donaldson, 558 F. App'x 962, 968 (11th Cir. 2014) (quoting United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)). However, a specific allegation that illegal activity occurred at the place to be searched is not required. As the Eleventh Circuit has observed,
Donaldson, 558 F. App'x at 968. See also United States v. Hamda, 647 F. App'x 1004, 1009 (11th Cir. 2016) (same); United States v. Pendleton, 447 F. App'x 978, 981 (11th Cir. 2011) (same); Kapordelis, 569 F.3d at 1310 (The warrant affidavit "must supply the authorizing magistrate with a reasonable basis for concluding that Defendant might keep evidence of his crimes at his home, i.e., a safe yet accessible place.") (citation and internal marks omitted).
In the instant case, the warrant affidavit offered sworn testimony from a law enforcement officer, Detective Lisenby, that at some point between December 23, 2017 and December 26, 2017, someone broke into a trailer belonging to Structured Communications Solutions ("SCSI") — which was parked at 2740 Zelda Road in Montgomery, Alabama — and stole $150,000 worth of tools and equipment. On December 29, 2017, an individual named David Garringer contacted the affiant. Garringer told the affiant that Conway had a dummy Facebook account registered under the name of "Chris Smith" and that Conway had contacted Garringer through Facebook and asked him if he wanted to buy certain tools. Garringer told the affiant that Conway had photographs of the tools and provided the affiant with copies. Of the pictured tools that Conway was attempting to sell, at least one — a drill — was visibly marked with the letters "SCSI."
Law enforcement contacted SCSI and one of its employees confirmed that the tools Conway was attempting to sell on Facebook were the same as those that had been stolen from its trailer a few days earlier. Law enforcement also compared the photo associated with the dummy Facebook account to Conway's Alabama driver's license photo and confirmed that the man who purported to be "Chris Smith" and Conway were the same person.
Later — on either December 29, 2017 or January 10, 2018
Working from the address listed on Conway's driver's license, law enforcement contacted the Shorter, Alabama police department and confirmed that Conway was known to the department and that he lived there with his father. On a date omitted from the first affidavit,
Finally, the affiant said that on January 8, 2018, Conway had called 911 and attempted to report his white Ford F250 as "being in [u]nauthorized [u]se status," and claimed that a black female had taken the keys from him while he was asleep. Conway provided dispatch with the following address: 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama.
Under the circumstances outlined above, this court readily concludes that the affidavit submitted in support of the search warrant in this case sufficiently established a reasonable basis to conclude that Conway lived at 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama and that he was in possession of contraband that was of the type that one would normally expect to be hidden there — a place "to which easy access may be had and in which privacy is nevertheless maintained." Donaldson, 558 F. App'x at 968; see also United States v. Gamory, 635 F.3d 480, 491 (11th Cir. 2011) (citation omitted) (Affidavits supplied the authorizing magistrate judge with a reasonable basis for concluding that defendant "might keep evidence of his crimes at his home."). Under the totality of the circumstances, the court finds that Judge Pool made a common sense determination that a fair probability existed that theft-related evidence would be found in the place to be searched. See Gates, 462 U.S. at 238. The evidence, viewed as a whole, provided a "substantial basis" for the judge's finding of probable cause, and there is no Warrant Clause violation here. See Upton, 466 U.S. 727, 732-33; Gates, 462 U.S. at 238-39.
The court is not persuaded that the alleged deficiencies raised by defendant call into question the above conclusion. Defendant first argues that in paragraph three of the affidavit, the affiant states that Conway was a suspect in the theft, but does not allege that Conway stored stolen items at Grier's residence. As previously explained, the court is satisfied that the warrant sufficiently established a reasonable basis to conclude that Conway lived at 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama and that he was in possession of contraband that was of the type that one would normally expect to be hidden there. Moreover, an affidavit need not specifically allege that the home was the locus of the criminal activity. See Bradley, 644 F.3d at 1264.
Defendant also argues that in paragraph five, the affiant states that Conway's father and brother provided him with the Carmichael Road address, but fails to establish that these relatives are reliable witnesses. Defendant makes the same argument regarding the reliability of Whitlow, the passenger in the traffic stop. Similarly, defendant argues that the affiant did not include information regarding the reliability of the individual at "dispatch" who reported that Conway provided the subject address during the course of his 911 call. However, common sense permits the conclusion that Conway's immediate relatives (a father with whom he had recently lived and a brother who had been to the apartment), and a passenger in his vehicle (especially one who had been in the car with Conway when he was observed leaving the 5600 block of Carmichael Road), could reasonably be relied upon to provide Conway's correct address. Common sense also permits the conclusion that someone who works as an emergency dispatcher is reliable, especially when the specific information concerning the address noted by the dispatcher is the same as that provided by close relatives. Particularly where, as here, defendant does not explain why any of these persons' reliability should be called into question, and offers no case law or legal argument in support of his contention, the court cannot conclude that this alleged deficiency warrants suppression.
Next, defendant takes issue with the affiant's failure to state specifically whether or not he relied on information he received from other officers and, if so, his failure to identify those officers. It is axiomatic that observations of other officers involved in a common investigation are a reliable basis for warrant applied for by one officer. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965). Additionally, while it is the better practice for an agent to state in the affidavit that he or she is relying on information from other officers, this is not a "hypertechnical" requirement. An affidavit is sufficient if "it is clear from reading the affidavit as a whole, that it is based in part upon information obtained from other law enforcement officers." United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir. 1986). The affidavit in this case — especially in contrast to the supplemental offense report — is not a model of clarity. For instance, because the affiant does not speak in the first person, the court cannot know which information the affiant learned firsthand through his own investigation and which came to him through his work with fellow officers. However, one can reasonably deduce from the affidavit that multiple officers were working on this case. For example, it is clear that the affiant received information from the officers (whom he identifies by name) who initiated the traffic stop and took Whitlow into custody. In this regard, the affidavit is sufficient to support Judge Pool's probable cause determination.
Finally, defendant takes issue with the fact that the affiant stated in one paragraph that the traffic stop took place on December 29, 2017, but in another paragraph refers to a January 10, 2018 stop. A common sense reading of the affidavit is that the December date is simply a typographical error. Moreover, whether the stop occurred on the earlier or later date, the information gleaned from the stop would still form a sufficient basis for a probable cause determination. Further, even absent the paragraphs that refer to the traffic stop, the evidence, when viewed as a whole, and taking into consideration the totality of the circumstances, provided a substantial basis for the judge's finding of probable cause.
Defendant contends that he has "demonstrated at least a reckless disregard of the facts" sufficient to warrant a hearing on his suppression motion in this case. The Supreme Court has made it clear that "[t]here is ... a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684.
United States v. Ward, 732 F. App'x 861, 862 (11th Cir. 2018). Defendant fails to meet this standard.
While defendant attaches exhibits to his motion, none is of the sort that would satisfy the requirement to make a substantial preliminary showing. The only documents attached are the warrant affidavit, the warrant and return documents, and the supplemental offense report. The warrant and warrant affidavit themselves self-evidently do not constitute the offer of proof required by Franks in support of the allegation that the affiant recklessly disregarded facts in producing these documents. The supplemental offense report is simply a report of the investigation; the court cannot conclude that this unsworn form report constitutes an "[a]ffidavit[] or sworn or otherwise reliable statement[] of [a] witness" which might proffer the required proof. Franks, 438 U.S. at 171. No other affidavits, or sworn or otherwise reliable statements of witnesses, are cited by defendant, and he does not explain their absence. See U.S. v. Flowers, 531 Fed. Appx. 975, 980 (11th Cir. 2013) ("the defendant's attack `must be more than conclusory' and the allegations of deliberate falsehood or reckless disregard for the truth `must be accompanied by an offer of proof.'") (quoting Franks, 438 U.S. at 171, 98 S.Ct. at 2684). Because defendant does not meet his threshold burden, the court does not reach the question of whether the warrant affidavit's allegedly reckless disregard of the facts would constitute sufficient grounds for suppression of the evidence seized. Defendant is not entitled to a suppression hearing on this argument.
Defendant maintains that while the "supplementary offense report" states that a shotgun was seized, the initial inventory report that accompanied the warrant return does not list the shotgun. Defendant does not make any specific argument as to how this omission in the initial inventory form that accompanied the warrant return might provide a basis for suppression of the weapon. However, even if he had, the law on this issue is clear — failure to include in an inventory list evidence that was constitutionally seized is not a basis for suppression. See e.g. Cady v. Dombrowski, 413 U.S. 433, 439 (1973) ("As these items were constitutionally seized, we do not deem it constitutionally significant that they were not listed in the return of the warrant."); United States v. Parks, 2007 WL 9760399, *4 (S.D. Fla. 2007) ("[l]isting items on a search warrant inventory [i]s a ministerial which does not invalidate the search.") (quoting United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)).
For the reasons stated above, it is the RECOMMENDATION of the Magistrate Judge that defendant's motion to suppress (Doc. 16) be DENIED. It is further
ORDERED that
Failure to file a written objection to the Magistrate Judge's findings and recommendations under 28 U.S.C. §636(b)(1) shall bar a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of a party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11th Cir. R. 3-1; Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
