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United States v. Bradshaw

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

September 6, 2018




         Armed with a search warrant, tribal law enforcement officers seized drugs and contraband from property located on a rural homesite and its curtilage. Christopher . Lamont Bradshaw claims that he was unlawfully stopped and detained at the site and that the warrant issued to search it was deficient and tainted certain evidence the Government intends to use against him. He seeks to suppress this evidence on Fourth Amendment grounds. Because the stop, detention, searches and seizures were constitutionally permissible and do not require exclusion of the contested evidence, the Court recommends that Bradshaw's suppression motion be denied.


         During the evening of April 25, 2017, Officers Joshua Antman and Gerald Dillon, along with Special Agent Benjamin Estes - all drug task force officers for the Rosebud Sioux Tribe - interviewed a confidential informant (CI) who stated that Antonio Valentino Foster had been selling methamphetamine on the Rosebud Reservation for the last month. In the interviews, the CI disclosed that an individual by the name of Chris (whose last name was unknown) had been driving Foster around in a red four-door Volkswagen with tinted windows and no front license plate. According to the CI, Foster fronted the CI 9 grams of methamphetamine for $600 within the last day or two and 19 grams over the past month, which the CI had distributed to pay Foster for the drugs he advanced. The CI also revealed that Foster had sold an ounce of methamphetamine to Mike Gunhammer for $1, 200 two weeks earlier.

         That same night, shortly after the interviews, Agent Estes and Officer Antman administered a controlled buy of memamphetamine from Foster using the CI. The CI was supposed to purchase seven grams of methamphetamine from Foster for $600. Before the buy, Antman searched the CI and found $450 in cash on the CI's person. When asked, the CI said that the money was what he had collected to pay Foster for the earlier nine-gram front. Antman took and stored the money separately so that it would not be commingled with the funds used in the buy.

         The CI drove to the controlled buy location while Agent Estes and Officer Antman watched from, and then passed by in, Antman's truck. After the purchase took place, the CI reported that Foster got out of a red Volkswagen Chris had pulled up in and sat in the CI's vehicle. There, Foster gave the CI two baggies of a white crystal substance in exchange for $600. Before departing, Foster remarked that he had more methamphetamine to sell. The baggies field tested positive for methamphetamine and weighed approximately 13.5 grams.

         At 6:43 p.m., the next night (April 26, 2017), Officers Dillon and Antman drove to Michael Millard's residence, outside Mission. They believed, given the information they had received, that this was where Foster and Chris were staying. The officers observed a red four-door tinted windowed Volkswagen car, without a front license plate, parked in the driveway of the home. Antman drove by the residence about four and-a-half hours later (at 11:08 p.m.) and noticed that the red Volkswagen was still there. At 3:40 the next morning, Dillon and Antman went to the home and saw the Volkswagen parked in the same spot.

         Later in the morning (on April 27, 2017), Officer Antman requested a search warrant for the residence, surrounding curtilage, and vehicles located on the premises, including any vehicles belonging to Foster. A tribal judge granted the request and issued the warrant.

         Officers arrived at the residence to, serve the search warrant shortly after noon on April 27. The red Volkswagen was present, but it began to pull out of the driveway toward the road. Chris was the driver and Foster the passenger. Seeing that the Volkswagen was on the move, Officer Antman drove into the driveway and blocked the Volkswagen from leaving.

         In response, the Volkswagen jolted in reverse, taking out a section of wire fence, before it swerved around to the corner of the fence line, became entangled in the fence and other items and came to a halt. Chris and Foster jumped out of the vehicle and took off running into a nearby open field. Foster though quickly returned to the vehicle, grabbed something from it, and took off again. As he did so, Foster began tossing items into the field until he fell to the ground.

         Ultimately, officers found $5, 285 in cash and two cell phones on Foster's person. They also retrieved a soda can and black sock in the area where he had thrown items. The sock contained two baggies of a white substance, weighing 89.15 grams, that tested positive for methamphetamine. Several officers eventually apprehended and arrested Foster and Chris (later found to be Bradshaw) after chasing the two some distance.

         At the scene, officers searched the red Volkswagen and seized from it another $97 in cash, two laptops, and a cell phone, as well as receipts and business papers with Bradshaw's name and address on them. Inside the Millard home/officers located and took possession of drug paraphernalia which, after being tested, had methamphetamine residue on it.

         The Rosebud Tribe charged Millard with one or more drug tribal offenses. He moved to suppress the evidence seized from his house. A tribal judge granted the motion, finding that the tribal search warrant lacked the probable cause necessary to search the home. Neither Bradshaw nor Foster were parties to that case and the judge's order did not address either of them.

         Meanwhile, a federal grand jury indicted Bradshaw and Foster for conspiracy to distribute 50 grams or more of methamphetamine, distribution of methamphetamine on April 25, and possession with intent to distribute 50 grams or more of methamphetamine on April 27. Foster pled guilty to the methamphetamine conspiracy charge and has since been sentenced. Bradshaw though moved to suppress from use at trial all evidence seized' during the execution of the tribal search warrant. At a hearing held to address Bradshaw's motion/ the Government called three witnesses and offered 22 exhibits into evidence/all of which were received.


         A. Stop and Detention

         At the outset, Bradshaw takes issue with his stop and detention. He maintains that he was unlawfully blocked from leaving the driveway of Millard's residence, approached at gun point, and detained after a foot pursuit in an adjacent field.

         An officer must have a reasonable basis to stop a motor vehicle. The critical question is: "[W]ould the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?"[1] In answering this question, a reviewing court "must look at the 'totality of the circumstances' of each case to see whether a detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing."[2] Officer Antman and officers assisting him in the execution of the warrant had three valid reasons to stop and detain Bradshaw and Foster, who were trying to drive away in the red Volkswagen.

         First the search warrant authorized officers to search Millard's house and any vehicles within the curtilage of it or belonging to Foster. When Officer Antman arrived to execute the warrant, he saw the Volkswagen beginning to pull out of the driveway toward the road. The vehicle was still within the curtilage, where it could be searched. The vehicle might have belonged to Foster, in which case it could have been searched wherever found. Either way, Antman had reason to believe that the warrant authorized the search of the Volkswagen and it was reasonable for him to stop the vehicle to determine if it should be in the warrant search.[3]

         Second, it was reasonable to prevent the Volkswagen from departing to find out whether any occupant of it was a resident of the Millard home. The warrant authorized searching the person of Foster as well as four other individuals. That gave Officer Antman reason to stop the Volkswagen and determine whether any of the five individuals were riding or hiding in the vehicle. The Supreme Court has recognized that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted."[4] The Court has held that it was constitutionally reasonable to detain a person descending the front steps while executing a warrant[5] and confirmed that the authority to detain forcibly during the execution process extends to all occupants of the premises, and not just the owner or subject of the warrant.[6] Detaining occupants of a house, while it is being searched "prevent[s] flight in the event that incriminating evidence is found," and permits "the orderly completion of the search."[7] Under the circumstances, Antman had the right to detain Foster and Bradshaw to determine whether they were occupants of the residence that he and executing officers were about to search.[8]

         Third, impeding Bradshaw and Foster's ability to take off in the Volkswagen was justified by a strong interest in protecting Officer Antman's safety and other officers engaged in the inherently dangerous activity of executing a warrant to search for drugs.[9] It was sunny outside and the vehicle, seen before at the residence, was attempting to leave as Antman approached. The vehicle was close enough to the residence that those inside could see or hear what was going on and mount a defense. And had Antman and officers allowed the vehicle to drive away, they faced the risk that its occupants would use a cell phone and warn those in the house that a search was forthcoming and expose officers to increased peril. "The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation."[10]

         These risks to officer safety were intensified when Bradshaw and Foster refused to stop the vehicle and show their hands as directed. Their actions gave Officer Antman reason to suspect, and probable cause to believe, that criminal activity was afoot. This justified him ordering Bradshaw and Foster out of the vehicle and detaining them for safety reasons, checking on driver license, vehicle registration, and outstanding warrants, and searching those parts of the vehicle where a weapon or contraband might be hidden.[11]

         Bradshaw and Foster were involved in criminal activity and were trying to drive off. Officer Antman and assisting officers had every right to stop and detain the two and search them and their vehicle.

         B. "Standing"

         During the suppression hearing, the Court brought up whether Bradshaw had the right to challenge the search and seizure of evidence found on Foster and in the field he ran into.[12] Bradshaw conceded that he had no such right over the property retrieved from Foster's person (cash and cell phones)[13] - and for good reason.[14] But he urged that the black sock with the methamphetamine in it be suppressed based in he and Foster being charged as co-conspirators.[15].

         The Supreme Court, however, has expressly rejected a co-conspirator exception to the "standing" rule.[16] Because Bradshaw has failed to show that he had either a property interest in the field searched or a reasonable expectation of privacy in the sock and drugs seized, he has no basis to contest the introduction of such items at trial.[17]

         C. Probable Cause

         Bradshaw next claims that the CI did not provide enough credible or reliable information to establish probable cause. He asserts that there was an insufficient showing made in the warrant affidavit to support issuing a warrant for the search of the places and items requested.

         Before a search warrant may be issued, the Fourth Amendment requires a showing of probable cause.[18] "Probable cause" to search exists "if there is a fair probability that contraband or evidence of a crime will be found in a particular place."[19]In determining whether probable cause exists, a court must look at the totality of the circumstances.[20] This determination is to be "based upon a common-sense reading of the entire affidavit"[21] and any "reasonable inferences" drawn from it.[22] The assessment of probable cause is made "from the viewpoint of a reasonably prudent police officer acting in the circumstances of the [ ] case."[23] As the name itself suggests, "probable cause is a practical, factual, and non-technical concept [that] deal[s] with probabilities" and should be applied with this in mind.[24]

         A court's duty, when reviewing a warrant, is to ensure that the issuing judge had a "substantial basis for . . . conclud[ing] that [the] search would uncover evidence of wrongdoing."[25] "Although in a particular case it may not be easy to determine when an affidavit demonstrates' the existence of probable cause, the resolution of doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants."[26]

         In deciding whether the information from a CI is reliable, the Eighth Circuit has set forth various factors to consider. The appeals court, for example, has observed that there are indicia of reliability in "the richness and detail of a first-hand observation."[27] The court has also recognized that "statements] against the penal interest of an informant typically carry considerable weight" in establishing reliability.[28] And according to the court, "[t]he circumstances of personal questioning may [likewise] enhance reliability and credibility."[29]

         What's more, "[a]n informant may [ ] be considered reliable if the information he or she supplies 'is at least partially corroborated' by other sources."[30] "Even the corroboration of minor, innocent details can suffice to establish probable cause."[31]

         Here, the CI's statements were based on "first-hand observations and knowledge rather than rumor or innuendo, "[32] and he provided information against his own penal interest.[33] Furthermore, Officer Antman, the warrant affiant, spoke with the CI directly and could personally assess his credibility.[34]

         The CI also provided specific and detailed information, independently-corroborated by officers, that proved to be accurate. This included information about Foster and Bradshaw, their ethnicity, what state they came from, who they associated themselves with, where they stayed, the vehicle the traveled in, and the time and place of the controlled buy and the buy itself, including the exchange of almost half an ounce of methamphetamine for $600. The CI provided consistent information that showed Foster and Bradshaw were involved in the distribution of methamphetamine on the Rosebud Reservation and had enlisted the CI to assist them in that endeavor.

         Giving due deference to the decision of the tribal judge, the Court finds that the CI's particularized information was reliable and sufficiently corroborated to furnish probable cause for issuing a warrant to search the Millard residence, the red Volkswagen parked in the driveway to it, and the curtilage surrounding the premises. The warrant affidavit was adequate enough to satisfy the probable cause strictures of the Fourth Amendment and to support officers' search for and seizure of drug related evidence.

         D. Nexus

         Generally, there must be a nexus between the criminal activity, the things to be seized, and the places to be searched.[35] Bradshaw contends that the facts stated in Officer Antman's warrant affidavit do not connect the property to be searched and the items to be seized. Bradshaw points out that none of the drug transactions the CI was privy to took place at the Millard residence or its curtilage.

         Two days before Officer Antman prepared his affidavit, the CI bought 13.5 grams of presumptively positive methamphetamine from Foster for $600. Bradshaw drove Foster to and from the meeting place, where the hand-to-hand exchange occurred. The next night, Antman checked Millard's home on three separate occasions over a nine-hour period, and saw the red Volkswagen - the CI had described before -parked outside the home in the same location. This information alone, which Antman included in his sworn affidavit, provided the necessary linkage between the offenses being investigated (possession and distribution of methamphetamine) and the places to be searched (the residence, curtilage and Volkswagen) to find probable cause for issuing the search warrant.[36] Bradshaw's contentions otherwise are inefficacious.

         E. Particularity

         Ever vigilant, Bradshaw complains that the search warrant was overbroad and violated the Fourth Amendment's particularity requirement. He says that the red Volkswagen, officers searched and seized evidence from, "was not even specifically described in the warrant."[37]

         The Fourth Amendment's Warrant Clause categorically prohibits issuing a warrant unless it "particularly describe[s] the place to be searched, and the persons or things to be seized."[38] The purpose of the particularity requirement is to prevent general searches. "By limiting the authorization to search the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit."[39]

         A search warrant is proper if its description of the evidence to be seized is "'sufficiently definite so as to enable the officer with the warrant to reasonably ascertain and identify the place to be searched and the objects to be seized.'"[40] The requisite degree of specificity is flexible, depending on the circumstances.[41] Thus, a description is generally valid "if it is as specific as the circumstances and nature of the activity under investigation permit."[42] The standard to be used in making this determination is one of "practical accuracy rather than a hyper-technical one."[43] A court must "base its decision on such factors as the purpose for which the warrant was issued, the nature of the items to which it is directed, and the totality of the circumstances surrounding the case."[44]

         Applying these standards here, the Court is not convinced that the search warrant lacked particularity. The warrant described both the places to be searched and the things to be seized with enough detail to pass constitutional muster. The searches were confined to the Millard residence, vehicles beside it, and the surrounding curtilage and hence, were limited to a specific area - one executing officers were familiar with. The warrant amply circumscribed the authority of where officers could search and what they could seize.

         Granted, the Volkswagen - although covered generically as a "vehicle" in the search warrant - was not named or particularly described in the warrant. But this omission is not fatal and does not invalidate the warrant.[45] Officers found the Volkswagen on the premises and the vehicle had either been given or lent to an occupant who resided in the home to be searched.[46] Officer Antman specifically-referred to the vehicle in his affidavit. And he stated that Bradshaw and Foster had used the vehicle to transport methamphetamine and to facilitate transactions involving the purchase and sale of the drug. This information was ample enough to bring the Volkswagen within the scope of the warrant authorizing the search' of the Millard premises.[47]

         The search warrant in question was not overbroad. A practical, rather than pedantic, reading of the warrant told officers where and what to search for. In the final analysis, the warrant's description of the places to be searched and the items to be seized was sufficiently particularized to satisfy the prescriptions of the Fourth Amendment. Suppression of the evidence seized from the Volkswagen, on particularity grounds, would be a mistake.

         F. Misstatements and Material Omissions

         Bradshaw further argues that Officer Antman omitted material facts and made a false statement in his search warrant affidavit that affected the tribal judge's probable cause decision. He maintains that Antman should have disclosed the nature and extent of the CI's deferred prosecution agreement (including the terms of it) and the benefits the CI received. Bradshaw also asserts that Antman failed to disclose the CI's inconsistent statements about who Foster arrived and had been with, saying the person was "Mike" in one report and "Chris" in the warrant affidavit. Citing Franks v. Delaware,[48] he alleges that Antman's omissions and misstatement were intentional or at least recklessly made and that he is entitled to an order voiding the search warrant and suppressing all evidence seized under it.

         Where the probable cause finding is premised on an affidavit containing omitted or false statements, the resulting search warrant may be invalid if the defendant can establish, by a preponderance of the evidence, that (1) the affiant intentionally, or with reckless disregard for the truth, omitted facts or included a false statement in the warrant affidavit, and (2) without the omissions or false statements, the affidavit would not have established probable cause.[49] Allegations of negligence or innocent mistake will not suffice to establish deliberate or reckless falsehood.[50]

         Officer Antman disclosed, in his affidavit, that the CI was "cooperating with the Rosebud Sioux Tribe Drug Task [Force] through a Deferred Prosecution Agreement."[51] By doing so, Antman made it known that the CI was subject to a drug prosecution and . had entered into an agreement that required him to cooperate with the Tribe's drug task force. And Antman's affidavit spelled out what the CI had done by way of cooperation. This information was important for the reviewing court to ...

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