JAMES P. JONES, District Judge.
In this criminal case, the defendant, charged with firearms offenses, has moved to suppress certain evidence seized by local police pursuant to a search warrant on the ground that the items seized exceeded the scope of the warrant. In addition, she has moved to dismiss the charges on the ground that they violate her rights under the Second Amendment. Following an evidentiary hearing, I will deny the motions for the reasons that follow.
The defendant, Lynn Spencer Conrad, has been charged by indictment with possessing firearms while being an unlawful user of a controlled substance, 18 U.S.C.A. § 922(g)(3) (West 2000) (Count Two), disposing of firearms to a prohibited person, 18 U.S.C.A. § 922(d) (West 2000) (Count Three), and making a false statement in connection with the acquisition of a firearm, 18 U.S.C.A. § 922(a)(6) (West 2000) (Count Four).
In her first motion, the defendant argues that evidence of these seized firearms should be suppressed as violative of her Fourth Amendment rights. She contends that the officers who conducted the search exceeded the scope of their warrant in that firearms were not identified in the warrant as items to be searched for and that the pickup truck was not parked on the property described in the warrant.
A joint hearing was conducted on the motions, at which the court heard testimony from officers who conducted the search as well as the defendant and a neighbor. From the evidence presented at the hearing, I find the following facts:
The defendant contends that the officers exceeded the scope of their warrant by searching the interior of the truck. The search warrant permitted the officers to search the house, curtilage, vehicles and outbuildings located at the Conrads' address. The warrant did not authorize a search of any other property. The truck, parked on a neighbor's property at the time of the search was, therefore, not within the scope of the permitted search. Moreover, Mrs. Conrad asserts that she
"[T]he application of the Fourth Amendment depends on whether the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Supreme Court has found this inquiry to incorporate two discrete questions. First, the court must consider whether the individual has exhibited a subjective expectation of privacy — that is, whether the "individual has shown that `he seeks to preserve [something] as private.'" Id. (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Second, the court must consider whether the individual's subjective expectation of privacy, when "viewed objectively, is `justifiable' under the circumstances." Smith, 442 U.S. at 740, 99 S.Ct. 2577 (quoting Katz, 389 U.S. at 353, 88 S.Ct. 507). "[I]t must be objectively reasonable; in other words it must be an expectation `that society is prepared to recognize as reasonable.'" United States v. Bullard, 645 F.3d 237, 242 (4th Cir. 2011) (quoting Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)).
In this case, the defendant has failed to establish that she had even a subjective expectation of privacy in the truck. No evidence presented at the hearing suggested that Mrs. Conrad took any action to protect the truck or the objects therein as private. The doors to the truck were always unlocked and the key was always in the ignition. The primary users and drivers of the truck were Eli and the Conrads' neighbor, Mr. Edwards. No evidence was presented during the hearing showing that Mrs. Conrad ever used or even rode in the truck. Mrs. Conrad's primary use of the vehicle, to the extent she had one, appears to have been as a sort of community storage shed. Most of the neighborhood — at least seven individuals named at the hearing — could enter the truck. Given the level of access that so many people had to the interior of the truck, Mrs. Conrad cannot now argue that she reasonably expected any items stored in the truck to be private. See Katz, 389 U.S. at 351, 88 S.Ct. 507 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). Because I find the defendant did not have a legitimate expectation of privacy in the truck, I hold that her Fourth Amendment rights have not been violated and I decline to suppress the evidence discovered therein.
Moreover, even if the defendant were to have had a legitimate expectation of privacy in the truck, the police officers who conducted the search of the Conrad property searched the truck in good faith. "`The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.... Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.'" United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Peltier, 422 U.S. 531, 539, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975)). "[T]he harsh sanction of exclusion should not be applied to deter objectively reasonable law enforcement activity." Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011)
In this case, the police obtained a warrant, supported by probable cause, to search the Conrads' home, outbuildings, curtilage and vehicles. They observed an deteriorating fence in between the house and the truck, but nothing about this fence row put the officers on notice that it marked a property line, especially given that the Conrads frequently used this access to their home. There was also a large gap in the fence between the truck and the house. Most importantly, the closest home to where the truck was parked, other than the defendant's, was a quarter of a mile away. The officers in this case, therefore, were not negligent in executing their warrant and reasonably believed the truck was located on the property they were authorized to search. Their good faith obviates the application of the exclusionary rule to the evidence collected from the truck.
The defendant also argues that the evidence of the firearms should be suppressed because weapons were not among the property or objects for which the warrant authorized the officers to search. Courts have consistently held that officers may seize evidence of criminal activity, even though it is not enumerated in a warrant, when that evidence is in plain view. See, e.g., Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Supreme Court has defined three factors for courts to consider in determining the admissibility of evidence seized pursuant to the plain view doctrine. First, the officer must be lawfully in the place where he observed the evidence; that is, the search warrant must have allowed the officer to search where he views the evidence. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In addition, the evidence must be in plain view and "its incriminating character must also be `immediately apparent.'" Id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); see also United States v. Uzenski, 434 F.3d 690, 707 (4th Cir.2006).
In this case, the officers were legally on the Conrad property conducting a search authorized by warrant. The search warrant authorized the officers to search for "blood, hair, tissue or other biological fluids," as well as "any burned clothing and cloth towels," pursuant to the officers' investigation of a murder. Evidence of this nature could be found in many places in the home and on the property, including on the defendant's bed and in a vehicle owned by Mr. Conrad, where the evidence Mrs. Conrad seeks to suppress was discovered. The officers were, therefore, lawfully in the location where they discovered the firearms and the evidence was lying in those places in plain view.
The defendant appears to contend that the "incriminating character" of the firearms was not "immediately apparent." Horton, 496 U.S. at 136, 110 S.Ct. 2301. The defendant points out that she had no prior felony convictions and, therefore, should have been allowed to legally possess firearms. This argument, however, runs into a number of barriers. First, the officers conducting the search at the defendant's home were investigating a homicide, and the means employed to commit that homicide had not yet been determined by the medical examiner at the time of the search. The officers, therefore, reasonably suspected and had probable cause to believe that the firearms might be evidence of the murder. Second, in the course of the search and before seizing the firearms, the officers had found evidence, including a smoking device with methamphetamine residue and marijuana, that
In addition to her motion to suppress, the defendant has filed a motion to dismiss Counts Two, Three and Four of the Indictment. She argues that the application of these statutes to her conduct violates her Second Amendment right to keep and bear arms.
The Second Amendment provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court decided in District of Columbia v. Heller that the Second Amendment guaranteed an individual right to bear arms. 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ("There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."). The Court qualified its holding, however, noting that "the right secured by the Second Amendment is not unlimited." Id. at 626, 128 S.Ct. 2783. The Court enumerated a list of historical prohibitions of the possession of firearms as examples of regulations that the Heller decision should not be read to impugn.
Following the Heller decision, the Fourth Circuit prescribed a "two-part approach" for evaluating regulations under the Second Amendment. United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010). First, the court must determine "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. (internal quotation marks and citation omitted). If the conduct was not understood to be within the scope of the right at the time of ratification, then the challenged law is valid. Id. If the challenged regulation burdens conduct that was within the historical scope of the Second Amendment, then the court must apply "an appropriate form of means-end scrutiny" in which the government bears the burden of demonstrating constitutional validity. Id.
The Fourth Circuit applied this analysis to 18 U.S.C.A. § 922(g)(3), which prohibits possession of firearms by unlawful users of controlled substances, in United States v.
Although readily conceding that removing firearms from the hands of dangerous individuals is an important interest, the court concluded that the government could not rely on mere supposition in making its argument that there was a connection between the use of controlled substances and violence. Id. at 418. The Fourth Circuit remanded the case to the district court to allow the government to submit evidence to demonstrate that the regulation was tailored to substantially serve its important interest. On remand, the district court found the empirical evidence and the practical considerations propounded by the government to be persuasive in concluding that § 922(g)(3) was constitutional. United States v. Carter, No. 2:09-00055, 2012 WL 5935710 (S.D.W.Va. Nov. 27, 2012).
Like the district court in Carter, I begin my analysis of the constitutionality of § 922(g)(3) by noting, as the Fourth Circuit did in its Carter decision, that this section is more circumscribed than other subsections of § 922(g). Section 922(g)(3) prohibits the possession of a firearm only while a person is currently an unlawful user or addict. 669 F.3d at 419. The prohibition terminates when a person is no longer a user of drugs. This section is narrowly tailored not only because it is less permanently intrusive, but also because it tracks and responds to an individual's future behavioral decisions. Id.
Second, I consider the government's scientific and empirical evidence, almost all of which was presented to the district court on remand in the Carter case, regarding the nexus between controlled substances and crime. The district court in Carter reached the conclusion that the government's evidence demonstrated not only a connection between drug use and crime but also specifically between drug use and violent crime. 2012 WL 5935710 at *4-6. I concur with this conclusion and find compelling the nine scientific studies that the government introduced at the hearing on the present motion. See, e.g. Carrie B. Oser et al., The Drugs — Violence Nexus Among Rural Felony Probationers, 24 J. Interpersonal Violence 1285, 1294 (2009) ("Regarding the use of illicit drugs, participants who had ever used cocaine/crack ... or any other stimulants such as methamphetamines... were significantly more likely to have ever committed a violent offense."); H. Virginia McCoy et al., Perpetrators, Victims, and Observers of
In its Carter decision, the Fourth Circuit listed a number of more practical provides substantial support to its important interest. Illicit drug users are more likely to lose self-control, threatening the safety of others, especially police officers who are likely to come into contact with them. 669 F.3d at 420. Illicit drug users will also encounter drug dealers, raising an additional specter of danger. The financial burden of drug dependency can also drive users to commit burglaries and robberies, which are only made more dangerous by firearms. Id.
I believe that the government has presented adequate evidence in this case to establish the constitutionality of § 922(g)(3), especially given that "intermediate scrutiny has never been held to require a perfect end-means fit." United States v. Mahin, 668 F.3d 119, 127-28 (4th Cir.2012). The scope of this section is limited, creating only a temporal prohibition. The government has demonstrated a nexus between violence and consumption of controlled substances. The commonsense considerations the statute serves are clear and tailored to the important interest of protecting the community. I also note that no appellate court has to date found § 922(g)(3) to be unconstitutional. See, e.g., United States v. Dugan, 657 F.3d 998, 999 (9th Cir.2011); United States v. Seay, 620 F.3d 919, 925 (8th Cir.2010); Yancey, 621 F.3d at 686.
The defendant has argued that the immediacy of her particular interest in possessing a firearm warranted a higher level of scrutiny for the application of this statute to her conduct. She points out that her husband had recently been stabbed by a gang member and she had been warned by law enforcement that the gang could return. She contends that her legitimate fear places her possession of a firearm squarely in the core right to self-defense Heller found the Second Amendment to have codified. The Second Amendment, however, is not concerned with the legitimacy of a person's fear. "The weight of the right to keep and bear arms depends not only on the purpose for which it is exercised but also on relevant characteristics of the person invoking the right." Carter, 669 F.3d at 415. As explicated above, an individual's status as a user of illegal drugs would remove him or her from the core right defined in Heller, necessitating the application of only intermediate scrutiny.
The defendant has also argued that applying this statute to her under intermediate scrutiny is unconstitutional because she has not yet been shown to be a user of illegal drugs, nor does she have any prior convictions for this behavior. The defendant effectively argues that she is entitled to the protection of strict scrutiny, and dismissal of the Indictment against her, until the government has proven she is a drug user. This is, however, precisely what the government will be required to prove at trial in order to convict her. Therefore, I do not find that this argument raises genuine issues of constitutional concern.
The defendant has also moved to dismiss Count Three of the Indictment, which charges her with knowingly disposing of firearms to a person whom she had reason to believe had been convicted of a felony,
The Fourth Circuit recently addressed this argument:
United States v. Chafin, 423 Fed.Appx. 342, 344 (4th Cir.2011) (unpublished).
In this case, the defendant is not accused of actually selling a firearm, but the distinction is immaterial. An individual's decision to give or sell a firearm to another person does not directly bear on the individual's capacity to possess firearms in her own right. I find the Fourth Circuit's observations in Chafin persuasive. The defendant, therefore, is not entitled to a dismissal of Count Three.
Finally, the defendant has moved to dismiss Count Four of the Indictment, which charges her with knowingly making a false statement on an ATF form in connection with the acquisition of a firearm from a licensed dealer in violation of 18 U.S.C.A. § 922(a)(6). Specifically, the Indictment alleges that the defendant falsely stated on ATF Form 4473 that she was not an unlawful user of controlled substances, while knowing that she was a user of methamphetamine and Xanax®.
I find that the defendant's arguments under this statute are subject to the same analysis that I have applied to the charge in Count Two. The regulation imposed by § 922(a)(6) is even narrower in scope than that imposed by § 922(g)(3). The section does not prohibit possession of a firearm at all; it merely asks that a person seeking to purchase a firearm not lie in the process of doing so. Moreover, the Supreme Court has indicated its approval of precisely the type of regulation imposed by § 922(a)(6). See McDonald v. City of Chicago, Ill., ___ U.S. ___, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010) (emphasizing that "longstanding regulatory measures" such as "`laws imposing conditions and qualifications on the commercial sale of arms'" are presumptively constitutional) (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). For the reasons outlined above, I find that § 922(a)(6) is constitutional under the Second Amendment because it substantially serves an important government interest in preventing dangerous persons from obtaining firearms.
For the foregoing reasons, it is hereby
