FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE.

The process of obtaining a search warrant exists to ensure that officers first gather sufficient facts indicating criminal activity before scouring through private property. Though search warrants are not always perfect or as specific as courts might like, the process itself acts as a bulwark against Fourth Amendment violations.

While investigating allegations of child abuse, officers were invited into the home of Veronica Villareal and Defendant Edward Verdugo. Once inside, they immediately smelled burnt marijuana. After Villareal's son admitted to smoking marijuana and possessing paraphernalia, officers sought a warrant to search the entire home. In that search, they discovered approximately 17.4 grams of heroin and a firearm in a black bag belonging to Verdugo. Before the Court is Verdugo's Motion to Suppress Physical Evidence (Doc. 28). Although the search warrant did not make specific reference to Verdugo's black bag, the smell of burnt marijuana and the presence of paraphernalia provided justification for the officers to search the entire home.

FINDINGS OF FACT

Federal Rule of Criminal Procedure 12(d) provides that "when factual issues are involved in deciding a motion, the court must state its essential findings on the record." Fed. R. Crim. P. 12(d). Verdugo was charged with felon in possession of a firearm, 18 U.S.C. § 922(g)(1), possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(e), and possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), (b)(1)(C). (Doc. 1 (Compl.).) At a hearing on January 16, 2020, the Court heard testimony from Sergeant Antonio Palomares and Agent Luis Rios. Based on the hearing and the record, the Court makes the following findings of fact:

CONCLUSIONS OF LAW

I. The officers were justified in seeking a search warrant of the entire home because they included particularized facts in the affidavit that indicated criminal activity.

The smell of burnt marijuana and admission that Villareal's son possessed paraphernalia provided justification to seek a warrant to search the whole trailer. The Fourth Amendment protects "[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. When officers seek to search an item or area, warrants require probable cause premised on a truthful and particularized description of what is to be searched. Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). The Tenth Circuit holds that "probable cause to issue a search warrant only exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime." United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (citation omitted). Probable cause turns on the "degree of suspicion that attaches" to the given facts. Illinois v. Wardlow, 528 U.S. 119, 128, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quotation omitted). Officers need only a "probability or substantial chance of criminal activity," not necessarily documented proof of criminal activity. New York v. P.J. Video, Inc., 475 U.S. 868, 877-78, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986) (quotation omitted); see also United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009) (reiterating the standard). This standard is designed to be flexible, and courts review these decisions with deference to the magistrate. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Probable cause exists "if the totality of the information contained therein establishes a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Morgan, 160 F. App'x 694, 697 (10th Cir. 2005) (citation omitted). In drug-related searches, the smell of marijuana can justify searching the entire home because the origination point may be difficult to locate, and additional drugs may be hidden throughout the house. United States v. Garcia-Zambrano, 530 F.3d 1249, 1260 (10th Cir. 2008) (when viewed on multiple occasions); Morgan, 160 F. App'x at 698 (when accompanied by admission). The search is still limited to the specific parameters set forth in the warrant, see United States v. Angelos, 433 F.3d 738, 745-46 (10th Cir. 2006), but "[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search," United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (footnote omitted).

The facts of the present case align closely with those in Morgan because the officers received an admission from Villareal's son that he possessed drugs and paraphernalia. The officers were rightfully on the premises to discuss child abuse allegations and did not smell marijuana until they were invited inside Villareal's home. The scent permeated throughout the entire double-wide trailer. While the size of the home might matter for purposes of limiting a search based exclusively on the scent, the admission that drug paraphernalia was present gave officers additional authority to conduct a comprehensive search of the premises. See Morgan, 160 F. App'x at 697. Though the officers only smelled marijuana in the living room at first and only Villareal's son admitted to smoking, the officers understood that drugs are often concealed in tiny compartments out of plain sight. This makes the inclusion of specific search locations in an affidavit unrealistic. As a result, officers are given leeway in how they frame search warrants to pursue drugs because they will not likely know where to look ahead of time. Here, the smell of burnt marijuana filled the home, and the knowledge that the son possessed paraphernalia allowed the officers to cast a wider net during the search.

II. Verdugo's black bag was included in the search because he was a resident of the home.

Verdugo lived in Villareal's home, so his personal property falls within the scope of the warrant. The Supreme Court has stated that "[w]here the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra, the Court held that although officers had a warrant to search a tavern, that did not entitle them to search patrons who happened to be on the premises during the warrant's execution. Id. Specifically, "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id. (citation omitted). Applying that holding, the Tenth Circuit has ruled that "guests have a reasonable expectation of privacy in the home of their host." United States v. Thomas, 372 F.3d 1173, 1176 (10th Cir. 2004) (citing Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990)). Conversely, the court has held that when a home is searched, a resident's belongings fall within the scope of the home, rather than acting as separate personal property. See United States v. Holt, 786 F. App'x 805, 808 (10th Cir. 2019) ("[Defendant] was not a mere guest; he had a connection to the premises substantial enough that his laptop fell within the warrant's scope.").

While Verdugo did not own the home, he lived with Villareal and is treated as a resident for purposes of the Fourth Amendment. He maintained no additional expectation of privacy in his personal property separate from the other individuals who lived in the home. Had he been a temporary guest, it is possible that his bag would fall outside the parameters of the warrant—like the search in Ybarra. But Verdugo's circumstances are more closely aligned with Holt because he had a substantial connection to the premises; thus his personal property receives no distinct protection. As a result, a description of the black bag was not necessary in the initial warrant because a comprehensive home search incorporated Verdugo's personal items. The black bag only receives mention in the second search warrant affidavit because the officers found a gun, which altered the nature of the search and the suspected infractions. The black bag was not included in the second warrant because the officers somehow thought its initial absence problematic. Rather, it was included to provide context for the amendment to expand the search—that is, from drugs exclusively to drugs and firearms.

III. It was reasonable for the officers to secure the premises while they waited for approval of the search warrant.

Once the officers determined that they would seek a search warrant, they had the authority to seize the premises for a reasonable amount of time to ensure that the evidence was protected. The Supreme Court has allowed warrantless seizures to secure property while waiting for a warrant. See Segura v. United States, 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The purpose of this seizure is to temporarily protect any potential evidence after officers determine they have probable cause to procure a warrant. Harman v. Pollock, 586 F.3d 1254, 1266 (10th Cir. 2009); see also Patel v. Hall, 849 F.3d 970, 981 (10th Cir. 2017) (reiterating the standard). Yet such a seizure is not unlimited, as the warrant must be secured within a reasonable amount of time. See United States v. Munoz-Nava, No. CR-05-99 MV, 2005 WL 8163368, at *4 (D.N.M. Oct. 27, 2005), aff'd, 524 F.3d 1137 (10th Cir. 2008) (ruling that a five-hour seizure was reasonable).

As discussed above, the officers had probable cause to seek a search warrant based on the burnt marijuana smell, enabling them to secure the premises until a judge ruled on the warrant. They sought to search the entire home and secure the trailer until they learned whether the warrant was approved or denied. The government argues that the officers' concern "was that if [they] did not continue to secure the black bag pending the issuance of a warrant, the evidence could vanish from the premises." (Doc. 40 at 11.) Such a concern was justified, and during the period that the house was secured, no one touched or tampered with any item in the home. Further, the premises were seized for only about three hours—a reasonable timeframe to seek a warrant. Therefore, the officers properly secured the home while they waited for the warrant, and they were justified in doing so to protect potential evidence.

IV. Even if there was a defect in the warrant or a problem with the search, the good faith exception applies in this case.

Even if the search warrant was overbroad or officers exceeded its scope, the good faith exception would prevent exclusion of the heroin and firearms. The good faith exception attaches when a defect exists in the warrant and excluding the evidence would not deter officers from conducting unlawful searches. United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Supreme Court has warned that excluding evidence should be a last resort. Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Specifically, "[e]xclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence." Davis v. United States, 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (citation omitted). Still, when an affidavit is so lacking in probable cause or officers search far beyond a warrant's scope, the court will not apply the good faith exception. United States v. Knox, 883 F.3d 1262, 1270 (10th Cir. 2018); see also United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (discussing Leon).

The good faith exception is rooted in policy. That is, there exists a base presumption that relevant evidence ought to be included, and minor procedural defects should not prevent courts from considering it. When an affidavit to attain a search warrant is demonstrably false, however, or when officers grossly exceed the scope of a warrant, then the good faith exception may not apply. Here, the warrant appears to be reasonably constructed—based on the marijuana scent and paraphernalia. This allowed the officers to obtain a warrant to search the entire home, which included Verdugo's black bag. Warrants could always include additional particularized detail to specify the parameters of a search, but when officers make a good faith effort to write a detailed affidavit, courts should not take the extraordinary measure of excluding evidence for minor defects. While the warrants at issue included particularized facts to justify the search of the home and the black bag, the good faith exception would apply as a backstop if the scope was exceeded. Taking these findings of fact and conclusions of law, the Court will deny Verdugo's Motion to Suppress the heroin and firearms found during the search.

THEREFORE,

IT IS ORDERED that Verdugo's Motion to Suppress Physical Evidence (Doc. 28) is DENIED.