United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
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. Â§Â§ 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. Â§ 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
evidentiary hearing on this matter was held on May 5,
2015. 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. From this evidence the court makes
the following findings of fact.
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 tip that identified Mr. Thompson as a
drug dealer (methamphetamine and marijuana). SW Aff., Â¶ 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., Â¶ 2.
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 . Â¶ 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., Â¶ 5. The detectives also observed an A-Ok
Garbage Service ("A-Ok") trash can sitting in front
of Mr. Thompson's house. Id., Â¶ 4. Detective
Matia described the garbage can as sitting in the driveway
between the garage's main door and pedestrian
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., Â¶
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., Â¶ 7.
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., Â¶ 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 Â¶ 9.
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 Â¶ 10. Detective
Matia photographed these items and/or placed them into the
Sioux Falls Police Department crime lab as evidence.
Id. at Â¶ 12.
Matia made arrangements with A-Ok to conduct another trash
pull the following week on August 25, 2015. Id. at Â¶
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 Â¶ 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 Â¶ 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 Â¶ 22.
This time, however, there were also documents related to a
Sioux Falls storage unit rented to Mr. Thompson. Id.
at Â¶ 23.
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.
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.
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,
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.
Thompson is Not Entitled to a Franks Hearing.
defendant is only entitled to a Franks 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.
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.
"[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.
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. SW Aff. at Â¶
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 Â¶Â¶ 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.
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.
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.
Legality of Trash Pull
Recent Cases Applying Two Different Fourth Amendment Tests
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.
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.
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. Id . However, the Court
ruled that Greenwood's expectation was not one society
would accept as objectively reasonable. Id. at 40.
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)).
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."
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
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.
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
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.
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)).
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).
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 ...