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United States v. Thompson

United States District Court, D. South Dakota, Southern Division

May 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES JOSEPH THOMPSON, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY, Magistrate Judge.

         INTRODUCTION

         Defendant James Joseph Thompson is before the court on a second superseding indictment charging him with possession with intent to distribute methamphetamine on or about August 26 and 27, 2015, in violation of 21 U.S.C. §§ 841(a)(1). See Docket No. 101. Mr. Thompson now moves the court to suppress physical evidence seized pursuant to an August 25, 2015, state court search warrant issued in Sioux Falls, South Dakota, for Mr. Thompson's residence; an August 27, 2015, state court search warrant issued in Luverne, Minnesota, for a storage unit rented by Mr. Thompson; and all evidence deriving from those warrants. See Docket Nos. 78 and 78-1. The United States of America ("government") resists the motion. See Docket No. 79. This motion has been referred to this magistrate judge for the holding of an evidentiary hearing and the issuance of a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, District Judge. The following is this court's recommended disposition.

         FACTS

         An evidentiary hearing on this matter was held on May 5, 2015.[1] Mr. Thompson was present along with his lawyer, Mr. Jeff Larson. The government was represented by its Assistant United States Attorney, Jennifer Mammenga. One witness testified at the hearing and three exhibits were received into evidence.[2] From this evidence the court makes the following findings of fact.

         Mr. Thompson took up residence at 1009 N. Lowell Avenue in Sioux Falls at least by 2012. The city of Sioux Falls does not provide municipal garbage pick-up, so its residents must contract with private garbage services of their choice. On July 9, 2015, the Sioux Falls Police Department ("SFPD") received an anonymous Crime Stoppers[3] tip that identified Mr. Thompson as a drug dealer (methamphetamine and marijuana). SW Aff., ¶ 3. The tipster indicated Mr. Thompson was dangerous, and that he received the drugs at his home through the mail. Id . The tipster provided a physical description of Mr. Thompson as well as his address, phone number, and a description of his gray Honda Civic with a South Dakota license plate. Id., ¶ 2.

         On August 10, 2015, SFPD Detectives Nick Cook and Terrance Matia surveilled Mr. Thompson's residence. They observed a gray Honda with a South Dakota license plate in the driveway. Id . ¶ 4. They discovered the gray Honda, along with another vehicle they observed in the driveway, was registered to Mr. Thompson. Id . Other SFPD records revealed Mr. Thompson resided at the 1009 N. Lowell address. Id., ¶ 5. The detectives also observed an A-Ok Garbage Service ("A-Ok") trash can sitting in front of Mr. Thompson's house. Id., ¶ 4. Detective Matia described the garbage can as sitting in the driveway between the garage's main door and pedestrian door.[4]

         On Friday, August 14, Detective Matia contacted A-Ok Garbage Service. A-Ok confirmed it provided trash service for Mr. Thompson and that Mr. Thompson's regular trash day and time was Tuesday between 6:00 and 6:30 a.m. Id., ¶ 6. On August 17, 2015, Detective Matia contacted A-Ok to arrange for a controlled collection of Mr. Thompson's trash the next day. Id., ¶ 7.

         On Tuesday, August 18, 2015, Detective Matia contacted A-Ok at 5:40 a.m. to confirm when the trash collector would be at Mr. Thompson's house. Id., ¶ 8. Detective Matia met the A-Ok driver near Mr. Thompson's house at approximately 6:12 a.m. Id . Detective Matia testified that on this day, the trash can was again placed on the driveway but more toward the center of the driveway in front of the garage door rather than the pedestrian door. When asked specifically if the trash can was placed in the same way as when he conducted surveillance, Detective Matia described it as "all in the same area." Detective Matia watched the trash collector roll the trash can down Mr. Thompson's driveway and empty its contents into the A-Ok truck. Id . There was no other trash in the collection area of the truck at the time Mr. Thompson's trash was placed into the truck. Id . Detective Matia then followed the A-Ok driver and retrieved Mr. Thompson's trash from the A-Ok truck. Id . Mr. Thompson's trash consisted of three white bags, each tied at the top. Id. at ¶ 9.

         Those three bags were taken back to the Minnehaha County Sheriff's Office and searched. Id . Numerous items considered by Detective Matia to be indicative of illegal drugs were recovered. Id. at ¶ 10. Detective Matia photographed these items and/or placed them into the Sioux Falls Police Department crime lab as evidence. Id. at ¶ 12.

         Detective Matia made arrangements with A-Ok to conduct another trash pull the following week on August 25, 2015. Id. at ¶ 19. Detective Matia testified that on that day, the collector was a different individual than the previous week. Detective Matia met the garbage collector near Mr. Thompson's home at approximately 6:00 a.m. on that day. SW Aff. at ¶ 20. At 6:29 a.m. Detective Matia observed the trash collector bring the trash can down Mr. Thompson's driveway and empty it into the A-Ok truck. Id . Again, there was no other garbage in the A-OK truck when Mr. Thompson's trash was dumped. Id . This time, there were four white bags with hand-tied knots. Id. at ¶ 21. Again, the bags were taken back to the Law Enforcement Center and searched, and again, items which Detective Matia believed to be indicative of illegal drugs were found. Id. at ¶ 22. This time, however, there were also documents related to a Sioux Falls storage unit rented to Mr. Thompson. Id. at ¶ 23.

         Based on the information found in the trash pulls and other information received by Detective Matia, he applied for and received from a state court judge a search warrant for Mr. Thompson's residence, vehicle, and storage unit on August 18, 2015. See EX 1. During that search, law enforcement found a large amount of cash, drugs, and drug paraphernalia. The items found during the Sioux Falls search gave rise to application for a search warrant that was granted by a state-court judge in Luverne, Minnesota, on August 27, 2015, for a storage unit in Luverne.

         Mr. Thompson now moves to suppress all physical evidence taken pursuant to both the Sioux Falls and the Minnesota search warrants, including evidence from his house, his vehicles and his storage unit. See Docket Nos. 78 and 78-1. He asserts the evidence taken from the storage unit in Minnesota is fruit of the poisonous tree. Id . The basis for Mr. Thompson's motion is the putative illegality of the trash pull. Without the evidence from the trash pull, Mr. Thompson argues, there was no probable cause for the issuance of the first search warrant. Mr. Thompson further argues that without the evidence found during the trash pull and subsequent search of his home, there would have been no probable cause for the Minnesota search warrant. At the beginning of the suppression hearing, Mr. Thompson also requested a Franks hearing, asserting that Detective Matia made material misrepresentations or omissions which affected the validity of the Sioux Falls warrant.

         The government resists Mr. Thompson's motion in its entirety. See Docket No. 79. The government asserts that the trash pull was legal, that Detective Matia made no material misrepresentations in the search warrant affidavit, [5] and that even if the trash pull was not legal, police relied in good faith on the validity of the warrant, thus negating the application of the exclusionary rule to the evidence seized. The court analyzes each of the relevant issues below.

         DISCUSSION

         A. Mr. Thompson is Not Entitled to a Franks Hearing.

         A defendant is only entitled to a Franks[6] hearing if he makes a substantial showing that an affiant to a search warrant application knowingly or intentionally, or with reckless disregard for the truth, made false statements or omitted material facts and that the alleged statements were necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). "Whether [the defendant] will prevail at that hearing is, of course, another issue." Id. at 172.

         The right under the Fourth Amendment to be free from unreasonable searches and seizures is a fundamental one and must be safeguarded from police overreaching. The probable cause requirement for search warrants "would be reduced to a nullity" if a criminal defendant did not have recourse to a hearing before a reviewing judge to challenge the veracity of a search warrant affidavit. Id. at 168. Because a pre-search proceeding is necessarily ex parte and is often done in haste, it "is likely to be less vigorous... [because] [t]he magistrate has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant's allegations." Id. at 169.

         Nevertheless, "[t]he requirement for a substantial preliminary showing is not lightly met." United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998). Minor omissions or discrepancies will not suffice. United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013). Here, the court understands that the factual misrepresentation being alleged by Mr. Thompson is the description of the location of the garbage can on the days of the two trash pulls. As this court understands it, Mr. Thompson takes issue with Detective Matia's testimony during the evidentiary hearing that, when he surveilled Mr. Thompson's home, the trash can was located near the garage's pedestrian door, but on the trash pull days, the trash can was placed more toward the center of the driveway, in front of the actual garage door. See TR at 16.[7]

         The important factor for determining the validity of the search warrant, however, is the information that was placed before the judge who approved the search warrant. A review of the search warrant affidavit reveals that Detective Matia said the garbage can was "in front of the residence" when he surveilled the house on August 10th.[8] SW Aff. at ¶ 4. On the trash pull days, Detective Matia told the search warrant judge the A-Ok representative rolled the trash can "from the driveway of the residence to the garbage truck." See SW Aff. at ¶¶ 8 and 20. Viewing the photos which were marked as evidence during the suppression hearing (EX A & B) the court does not perceive the two descriptions ("the front of the residence" and "from the driveway") as being inaccurate or materially different from each other.

         During his own testimony, Mr. Thompson testified he always leaves the garbage can closer to the pedestrian door to the garage, even on garbage days. Exhibits A and B demonstrate this entire area is part of a concrete pad that serves as an extra-large driveway and extends from past the far end of the garage to part way in front of the picture window. The picture window is between the garage's pedestrian door and the cement steps which lead to the front entrance of the home. The sidewalk to the front door passes in front of the picture window that is between the garage's pedestrian door and the front door. If a guest parked on the extra parking pad, upon alighting from the vehicle the passenger could see into Mr. Thompson's picture window if the curtains were open.

         Assuming then that the garbage can was at all times where Mr. Thompson says it was, describing it as at the "front of the residence" or on "the driveway" would be accurate and neither description can be characterized as knowingly, intentionally, or recklessly in disregard of the truth. Finally, as is described in more detail below, this court believes that probable cause for the warrant would exist even if all evidence from the trash pull were excised from Detective Matia's affidavit. A Franks hearing is therefore not warranted.

         B. Legality of Trash Pull

         1. Recent Cases Applying Two Different Fourth Amendment Tests

         The Fourth Amendment prohibits unreasonable searches without a search warrant supported by probable cause. See U.S. CONST. AMEND. IV. The preeminent case involving the Fourth Amendment and trash pulls is California v. Greenwood, 486 U.S. 35 (1988). In Greenwood, police had information indicating Billy Greenwood might be involved in drug trafficking out of his home, including police surveillance showing numerous vehicles making short-term stops at Greenwood's home late at night and into the early morning hours. Greenwood, 486 U.S. at 37. Thereafter, police asked the regular trash collector to collect trash bags Greenwood left on the curb in front of his home and turn it over to police. Id . The collector did so and police rummaged through Greenwood's trash without a warrant, finding items indicative of drug use. Id. at 37-38. This information was then included in an affidavit in support of a search warrant. Id. at 38. Subsequent execution of the search warrant at Greenwood's home resulted in the discovery of cocaine and hashish. Id.

         Greenwood was arrested and posted bond. Id . After police received continuing reports of late-night, short-term visitors to Greenwood's house, they conducted another trash pull in the same manner as the first, and with the same results. Id . Police obtained another search warrant for Greenwood's home which, when executed, resulted in the discovery of more evidence of drug trafficking. Id . Greenwood moved to suppress the fruits of the trash pulls, including the fruits of the search warrants because they were based, in part, on the evidence from the trash pulls. Id.

         The Court explained Fourth Amendment protections apply only where (1) Greenwood had a subjective expectation of privacy in the thing seized or place searched and (2) that expectation of privacy was one that society accepted as objectively reasonable. Id. at 39. The Court accepted Greenwood's representation that he had a subjective expectation of privacy.[9] Id . However, the Court ruled that Greenwood's expectation was not one society would accept as objectively reasonable. Id. at 40.

         The Court stated: "It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public." Id . "Moreover, [Greenwood] placed [his] refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so." Id . Therefore, the Court reasoned that "having deposited [his] garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, ' [Greenwood] could have no reasonable expectation of privacy in" his garbage. Id. at 40-41 (quoting United States v. Reicherter, 647 F.2d 397, 399 (3d Cir. 1981)).

         Greenwood argued the evidence seized from his trash should be suppressed because, although perhaps legal on Fourth Amendment grounds, it was illegal under California state law. Greenwood, 486 U.S. at 43. He argued that society-at least in California-would recognize his privacy interest in his garbage as objectively reasonable because the California Supreme Court has held that citizens have a right of privacy in their garbage. Id . The Court soundly rejected this state-law approach to the Fourth Amendment, stating that "whether or not a search is reasonable within the meaning of the Fourth Amendment [does not] depend[] upon the law of the particular State in which the search occurs." Id.

         The Greenwood Court analogized Greenwood's interest in his trash to the numbers one dials on a telephone to talk to another person-when one conveys that data to a third party, "even in [one's] own home or office, " one loses Fourth Amendment protection for that data. Id. at 41. Although Greenwood was decided before the advent of today's pervasive internet access and smart phone technology, its reference to pen registers (devices that capture the phone numbers dialed from a suspect's phone), was prescient as much of the more-recent Fourth Amendment cases have had to decide how far to stretch that pen register analogy.

         In United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 948 (2012), the Court determined whether the attachment of a global-positioning system (GPS) tracking device to a suspect's car for 28 days constituted a search under the Fourth Amendment. Jones moved to suppress the evidence obtained from the GPS device. Jones, 132 S.Ct. at 948. The Court held that the attachment of the GPS device to Jones' car-which it characterized as "a physical intrusion" and occupation "of private property for the purpose of obtaining information"- constituted a "search" under the Fourth Amendment. Id. at 949.

         The Jones Court held that the Fourth Amendment was founded upon property rights, citing an 1765 English case familiar to the Founding Fathers in which Lord Camden said, "[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law." Id . (quoting Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)).

         The government attempted to justify its use of the GPS device by arguing that Jones had no privacy interest in the undercarriage of his car nor in the public roads on which that vehicle traveled. Id. at 950. Although the Court noted that later Fourth Amendment cases from the Court "deviated from [the earlier] exclusively property-based approach, " the Court viewed its role as ensuring, at a minimum, that the trespass theory of privacy accepted by the Founding Fathers at the time the Fourth Amendment was adopted was protected. Id.

         The Court noted its decisions which did not rely upon a property-rights basis for its holdings, nevertheless did not repudiate or "snuff out" the trespass approach. Id . (discussing Katz v. United States, 389 U.S. 347 (1967); Minnesota v. Carter, 525 U.S. 83 (1998); and Soldal v. Cook County, 506 U.S. 56 (1992) (both discussing Katz)). The Court distinguished two cases it previously decided involving the attachment of beepers to property, noting that in one case the suspect never challenged the installation of the beeper while in the other case the beeper had been installed with the consent of the owner. Id. at 952 (distinguishing Kyllo v. United States, 533 U.S. 27 (2001); and United States v. Knotts, 460 U.S. 276 (1983)).

         When the government attempted to justify its search under the "open fields" doctrine, the Court soundly rejected that rationalization, noting that "an open field, unlike the curtilage of a home, ... is not one of those protected areas enumerated in the Fourth Amendment." Id. at 953. The Court concluded that the trespass approach was still valid where there was actual encroachment onto physical property, but that the Katz reasonable-expectation-of-privacy test would still apply where there was no physical trespass. Id . Justice Sotomayer concurred in the four-Justice majority opinion and, in particular, its application of a trespass-based approach in concluding that a search occurred under the Fourth Amendment in the Jones case. Jones, 132 S.Ct. at 954-57 (Sotomayer, J., concurring). She wrote separately to discuss theoretically the approach to apply when no physical intrusion takes place, such as with electronic signals from our cell phones, a subject that came before the court in 2014. Id . See Riley v. California, 573 U.S. ___, 134 S.Ct. 2473 (2014).

         But before the Court decided Riley, it decided a major curtilage case. See Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409 (2013). In Jardines, the police received an unverified tip that Jardines was growing marijuana in his home. Id. at 1413. Although police surveilled Jardines' home for a short time, they saw nothing suspicious: no people came or left the home and police could not see inside the home because the shades were drawn. Id . Rather immediately, then, police subjected Jardines' front porch to a drug-dog sniff and the dog alerted to the base of the front door of ...


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