CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the court on Defendant William Dallas Elmore's ("Elmore") motion to suppress, (DN 85), the report and recommendation of Magistrate Judge Lanny King on that motion (the "Report"), (DN 106), and objections filed thereto (DN 110). Elmore objects to the magistrate judge's decision not to suppress the SD card found in a keyless entry device. First, Elmore argues that the third search warrant was not sufficiently attenuated from the first two, allegedly, unconstitutional searches and is therefore fruit of the poisonous tree. Second, Elmore argues that the third search warrant was not supported by probable cause. Third, Elmore argues that the affidavit in support of the third search warrant was false and false by omission and he is therefore entitled to a Franks hearing. Fourth, in his motion to suppress, Elmore argues that the Louisville Metro Police's ("LMP") continued possession of his Ford Mustang ("Mustang") constitutes an illegal seizure and the third search warrant was the fruit of that illegal seizure.
In response to Elmore's first argument, the magistrate judge found that the attenuation doctrine exception to the exclusionary rule applied to the third search. Second, the magistrate judge concluded that the third affidavit was supported by probable cause. Third, the magistrate judge concluded that Elmore was not entitled to a Franks hearing. Fourth, the magistrate judge did not reach the question of whether the LMP's possession of Elmore's mustang constituted an illegal seizure.
As to the first argument, the Court disagrees with the magistrate judge's conclusion that the attenuation doctrine applies to the third search warrant. But, on the merits, the Court agrees that the SD card should not be suppressed since the third search warrant was not the product of any illegal government activity. As for the second argument, the Court finds that the third search warrant was supported by probable cause. As to the third argument, the Court finds that Elmore is not entitled to a Franks hearing. As to the fourth argument, the Court finds that the LMP's continued possession of Elmore's Mustang did not constitute an illegal seizure under the Fourth Amendment. Therefore, the Court will accept and adopt the Report as supplemented by this opinion and overrule Elmore's objections. As a result, the Court will deny the motion to suppress.
Elmore filed a motion to suppress on February 16, 2018. DN 42. On March 28, 2018, this Court referred the motion to Magistrate Judge Dave Whalin. DN 46. The magistrate judge issued his report and recommendation on April 23, 2018. DN 47. On October 30, 2018, this Court accepted the report and recommendation of the magistrate judge and issued a Memorandum Opinion denying Elmore's motion to suppress. DN 66. On November 21, 2018, Elmore's counsel filed a motion to withdraw from her representation of Elmore, DN 72, which was granted on December 17, 2018. DN 78. On December 20, 2018, Elmore's current counsel was appointed. DN 79.
On May 17, 2019, Elmore filed a second motion to suppress. DN 85. On August 7, 2019, this Court referred the motion to suppress to Magistrate Judge Lanny King. DN 102. The magistrate judge issued his report and recommendation on August 27, 2019. DN 106. On October 4, 2019, Elmore filed objections to the magistrate's Report and Recommendations. DN 110.
Elmore makes limited objections to the factual findings of the magistrate judge's Report. DN 110 at 2-3. Therefore, the Court adopts and repeats the factual findings of the magistrate judge in whole, noting Elmore's objections as it proceeds.
(Docket # 42-3 at PageID # 92.) The third search warrant on three key fobs was executed on August 19, 2016. (Id. at PageID # 95.) It resulted in discovery of incriminating images on a Toshiba 2GB Micro SD Card, located inside one of the three key fobs.
The Court makes a de novo determination of the proposed findings or recommendations of the magistrate judge to which the parties have objected 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(3). To the extent that no objection is filed, the arguments are waived. Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff'd, 474 U.S. 140, 147-48 (1985).
The Fourth Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Evidence obtained in violation of this command is generally inadmissible in federal court. Mapp v. Ohio, 367 U.S. 643, 654 (1961). Further, evidence later obtained as a result of an initial unconstitutional search or seizure is generally inadmissible as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963).
To establish probable cause, there must be sufficient facts which indicate "a fair probability exists that evidence of a crime will be located on the premises of the proposed search." United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). These facts must arise within "the four corners of the affidavit." Id. This requires law enforcement to establish "a nexus between the place to be searched and the evidence sought." United States v. McPherson, 469 F.3d 518, 524 (6th Cir. 2006). This inquiry is a "practical, non-technical conception" that deals with the "factual and practical considerations of everyday life" and is deferential, focusing only on whether there was a substantial basis for the issuing judge to find probable cause. Ill. v. Gates, 462 U.S. 213, 231-39 (1983). The Court must be mindful that search warrant affidavits "must be tested and interpreted . . . in a commonsense and realistic fashion" because they are drafted "by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108 (1965).
Further, "[a] defendant is entitled to a Franks hearing if he: (1) makes a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement or material omission in the affidavit; and (2) proves that the false statement or material omission is necessary to the probable cause finding in the affidavit." United States v. Pirosko, 787 F.3d 358, 369 (6th Cir. 2015). This is a "heavy burden" which requires "an offer of proof" with "supporting affidavits or [an] expla[nation] of their absence." United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). The Sixth Circuit has interpreted the Franks standard to require a "substantial preliminary showing that specified portions of the affiant's averments are deliberately or recklessly false." United States v. Campbell, 878 F.2d 170, 171 (6th Cir. 1989).
Elmore raises four arguments in favor of suppressing the SD card: (1) the third search warrant was the fruit of the poisonous tree, (2) the third affidavit lacked probable cause, (3) the third affidavit is false and false by omission, and (4) LMP's continued possession of Elmore's mustang was an illegal seizure and the third search warrant is the fruit of that illegal seizure. The Court will address each argument.
Elmore argues that the first and second search warrants were not supported by probable cause and that the third warrant, since it was based on the first two, was the fruit of the poisonous tree. DN 85-1 at 21-22. "The animating purpose underlying the exclusionary rule is the deterrence of unlawful government behavior." United States v. Gross, 662 F.3d 393, 401 (6th Cir. 2011)(citing Elkins v. United States, 364 U.S. 206, 217 (1960)). The Supreme Court has held that the exclusionary rule reaches evidence "found to be derivative of an illegality or `fruit of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804 (1984)(quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). The "indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." New York v. Harris, 495 U.S. 14, 18 (1990). But, the Court has consistently held that the exclusionary rule does not reach evidence when the "connection between the illegal police conduct and the discovery and seizure of the evidence is `so attenuated as to dissipate the taint.'" Segura, 468 U.S. at 805. The Court has also consistently held that the illegal police conduct must be more than a "but for" cause of the discovery and seizure of evidence. Wong Sun v. United States, 371 U.S. 471, 487-488 (1963); Segura, 468 U.S. at 815; Harris, 495 U.S. at 17.
Further, the Court has held that the attenuation analysis is "only appropriate when, as a threshold matter, courts determine that `the challenged evidence is in some sense the product of illegal governmental activity.'" Harris, 495 U.S. at 18. In Crews, the Court did not suppress a victim's in-court identification despite the defendant's illegal arrest because the evidence was not "come at by exploitation of...the defendant's Fourth Amendment rights." United States v. Crews, 445 U.S. 463, 471 (1980). Similarly, in Harris, the Court did not suppress a defendant's statement made prior to an illegal entry and arrest in the defendant's home. Harris, 495 U.S. at 20. The Court held that the defendant's statement "was not an exploitation of the illegal entry into [the defendant's] home" and therefore suppressing the statement would have "little effect on the officers' actions, one way or another." Id. at 19-20.
This Court also finds Segura instructive. In Segura, the Supreme Court considered "whether, because of an earlier illegal entry, the Fourth Amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence." Segura, 468 U.S. at 797-798. The Court held that the exclusionary rule did not require that the evidence be suppressed. Id. at 815. While the first entry into the defendant's apartment was illegal, the Court held that it "did not contribute in any way to the discovery of the evidence seized under the warrant." Id. "None of the information on which the warrant was secured was derived from or related in any way to the initial entry into the petitioner's apartment." Id. at 814. Therefore, the Court reasoned that the evidence was not the product of illegal government activity and did not justify the suppression of the evidence. Id. at 815. The Court also rejected the argument that "but for" the illegal entry the defendants would have "arranged for the removal or destruction of the evidence" at issue. Id. at 815-816. The Court stated that this was pure speculation and declined to extend the exclusionary rule to further protect criminal activity. Id.
Assuming arguendo that the first two searches were infirm, the execution of the first and second search warrants produced no evidence against Elmore. Detective Wilkins did not include any information produced by the first or second search in the third affidavit because nothing came of those searches. The third affidavit contained the information used previously to secure the first two search warrants and Ms. Elmore's new suspicions regarding Elmore and the keyless entry devices. DN 85-10. Ms. Elmore came forward to tell Detective Wilkins about her suspicions without any prompting from Detective Wilkins. This information was not the product of Detective Wilkins' exploitation of the prior searches or related in any way to the results of the first two searches. Rather, it was the product of Ms. Elmore's decision to inform Detective Wilkins of her suspicions. The third search warrant was not the product of illegal government activity and is therefore not the fruit of the poisonous tree.
Elmore argues that this Court must focus on his reaction to the news that his Mustang and storage unit had been searched. See DN 110 at 7-11. In short, Elmore contends that he never would have reacted to the news of the searches if they never occurred and Ms. Elmore would never have reported his reaction to Detective Wilkins. Id. This is a quintessential "but for" causation argument the Supreme Court has consistently rejected as grounds to apply the exclusionary rule. Detective Wilkins sought the third search warrant because Ms. Elmore independently contacted him about her suspicions. Even if this Court were to accept Elmore's attenuated causal chain, applying the exclusionary rule here would not change any police actions; it would be inapposite to the exclusionary rule's animating purpose. Therefore, Elmore's argument is without merit.
Elmore argues that the information included in the third affidavit is insufficient to establish a finding of probable cause. DN 85-1 at 22. First, Elmore claims that the third affidavit contains no evidence that the keyless entry devices were "connected with criminal activity." Id. Elmore argues that no information provided by either the inmate or Ms. Elmore mentioned an SD card, and therefore has no indication that there would be evidence of child pornography in the keyless entry devices. Id. Second, Elmore claims the third affidavit does not establish a likelihood that any contraband would be found in any of the keyless entry devices. Id. at 23. Elmore argues that the affidavit does not provide evidence of the likelihood child pornography would be found in each of the keyless entry devices and therefore is not sufficiently particularized to each keyless entry device. Id. Finally, Elmore argues that the third affidavit's reliance on Detective Wilkins' "training and experience" alone is insufficient to establish probable cause. DN 85-1 at 24.
The Court previously ruled that the third affidavit contained sufficient evidence to find probable cause. See DN 66 at 14-16. Elmore has not presented any evidence or arguments that would cause this Court to reconsider its prior ruling. This Court previously relied on United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986) in making its determination for the third affidavit. Pelham holds that "[w]hen a witness has seen evidence in a specific location in the immediate past, and is willing to be named in the affidavit, the `totality of the circumstances' presents a `substantial basis' for conducting a search for that evidence." Id. While it is true that Ms. Elmore did not provide explicit evidence of an SD card, or the likelihood an SD card would be inside each keyless entry device, this does not preclude a finding of probable cause. See DN 66 at 15. In analyzing the third affidavit under this standard, this Court stated the following:
Id. at 15-16. The third affidavit contained a substantial basis for conducting the search of the keyless entry devices. Therefore, Elmore's argument is without merit.
Elmore argues that the third affidavit is false and false by omission and he is therefore entitled to a Franks hearing. Elmore contends that Ms. Elmore never said he became "overly concerned" about the keyless entry devices and that phrase in the third affidavit is false. Again, while it is true that Ms. Elmore did not utter the exact phrase used in the affidavit, that does not mean the information Detective Wilkins provided was false. Indeed, Detective Wilkins' characterization of Ms. Elmore's conversation with Elmore is clearly not deliberately or recklessly false. In the call with Detective Wilkins, Ms. Elmore said that Elmore got quiet when she told him the police searched his car. DN 85-1 at 24. Ms. Elmore then told Elmore that she gave the police his keys. Id. Elmore then asked Ms. Elmore whether she gave the police the keys and whether she gave them all of the keys. Id. He then asked whether she gave the keyless entry devices along with the keys. Id. Ms. Elmore told Detective Wilkins that the keyless entry devices "[were] very important to [Elmore]." Id. Overall, it is clear that Elmore did in fact become "overly concerned" about the keyless entry devices. That phrase is an accurate summation of what Ms. Elmore relayed to Detective Wilkins. Therefore, Elmore's argument is without merit.
Elmore also argues that the "failure to include Ms. Elmore's repeated expressions of self-doubt was a Franks omission." DN 110 at 22. He provides the Court with no evidence that Detective Wilkins knowingly and intentionally, or with reckless disregard for the truth, omitted Ms. Elmore's expressions of "self-doubt." Further, this information is not material to the probable cause analysis. As the magistrate judge aptly stated, "probable cause does not require certainty." DN 106 at 19. And, as stated above, Ms. Elmore was sufficiently credible and her information had a sufficient nexus to the ongoing investigation regardless of her "self-doubt". Therefore, Elmore's argument is without merit.
Accordingly, because there are no deliberately or recklessly false portions or material omissions in the affidavit, Elmore's request for a Franks hearing will be denied.
Elmore argues that the LMP's continued possession of his Mustang constitutes an illegal seizure and ultimately led to the information contained in the third affidavit. DN 85-1 at 14. Therefore, Elmore contends that the third search warrant was the fruit of the illegal seizure of his Mustang. Id. at 16. This argument is also without merit.
On June 22, 2016, the LMP took possession of the Mustang and executed the first search warrant. Id. at 14. They retained possession of the Mustang after the search. Id. Elmore argues that this constituted an illegal seizure. Id. To support his argument, Elmore relies on Manuel v. City of Joliet, 137 S.Ct. 911 (2017). Id. at 15. Elmore argues that Manuel "resolved the circuit split over whether the continued possession of a seized item without probable cause constitutes a violation of the Fourth Amendment." Id. According to Elmore, Manuel held that the continued possession of an item seized without probable cause violates the Fourth Amendment. Id. Therefore, the LMP's continued possession of Elmore's Mustang constituted an illegal seizure. Id. at 16.
Elmore then contends that the holding in Manuel supersedes the holding of Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999).
Elmore's argument is attenuated at best and a deliberate misrepresentation of law at worst. The majority opinion in Manuel clearly states that its holding is "the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process." Manuel, 137 S. Ct. at 920. At no point does the majority address the continued possession of property after a lawful search and seizure. Manuel stands for the limited proposition that unlawful pretrial detention of persons is governed by the Fourth Amendment. Manuel does nothing to alter the binding precedential authority of Fox.
Fox controls here. The LMP executed a lawful search seizure of Elmore's Mustang. See DN 66. The LMP retained possession of the Mustang after the search. Id. Elmore then asked Detective Wilkins to return the Mustang after his release from prison. Id. As the holding in Fox dictates, the LMP's continued possession of the Mustang after a lawful search and seizure is not a seizure under the Fourth Amendment. Therefore, Elmore's argument is without merit.
For the reasons stated herein, the Court will deny Elmore's second motion to suppress (DN 85). A separate order will be entered in accordance with this opinion.
