United States v. Fairchild

774 F. Supp. 1544, 1990 U.S. Dist. LEXIS 19314, 1990 WL 306162
CourtDistrict Court, W.D. Wisconsin
DecidedMay 8, 1990
DocketNo. 89-CR-111-C
StatusPublished
Cited by5 cases

This text of 774 F. Supp. 1544 (United States v. Fairchild) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fairchild, 774 F. Supp. 1544, 1990 U.S. Dist. LEXIS 19314, 1990 WL 306162 (W.D. Wis. 1990).

Opinion

ORDER

CRABB, Chief Judge.

So as to preserve his rights to appeal, defendant has filed objections to the report and recommendation entered herein by the United States Magistrate on April 13, 1990. He contends the magistrate erred in finding that the affidavit in support of the application to search an apartment in San Antonio was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; that the magistrate erred in finding that probable cause existed for the issuance of a warrant for the search of a motorhome; and finally, that the magistrate erred in finding that defendant had no standing to contest the legality of a search of a mini warehouse, and that even if he did have such standing, there was sufficient probable cause to justify the search.

After reviewing the magistrate’s report, defendant’s objections, and the briefs of both parties, I conclude that the findings of fact and conclusions of law proposed by the magistrate in his report and recommendation should be adopted as the court’s own and that his recommendation should be followed.

There is no merit to defendant’s challenge to the magistrate’s proposed finding that it was unreasonable for the executing officer to rely on the validity of the warrant for the search of the San Antonio apartment. As the magistrate noted, there was a nexus between the premises and the contraband that went beyond a mere “ ‘tenuous and conclusory suggestion.’ ” Report and Recommendation at p. 20 (quoting United States v. Granger, 596 F.Supp. 665, 671 (W.D.Wis.1984)). It rested on a sworn statement that defendant had been seen at the apartment within the preceding 36 hours.

I conclude also that there is no merit to defendant’s objection to the magistrate’s proposed finding and conclusion that sufficient probable cause existed for the issuance of the warrant to search the Coachmen motor home.

Defendant’s challenge to the validity of the warrant to search the Lyden Mini Warehouse is based on his contention that the magistrate intends to recommend the suppression of evidence obtained during the search of another warehouse. In light of defendant’s representation, I have reviewed the affidavit in support of the application to search the Lyden warehouse. Even if all of the information obtained as a result of the search and seizure of Mueller’s Nursery and Fur Shed Mini-Warehouse were excluded, the affidavit would still be sufficient to support the issuance of the search warrant.

Moreover, I concur with the magistrate that defendant lacks standing to contest the legality of the search because he has failed to establish that any personal Fourth Amendment right was implicated in the search. Defendant contends that it was not his burden to establish standing, that he was entitled to rely on the government’s failure to object to the averments of his affidavit in that regard. He is wrong in that respect, but the issue is of minimal importance, given the sufficiency of the affidavit he seeks to challenge.

IT IS ORDERED that the findings of fact and conclusions of law proposed by the magistrate in his April 13, 1990 Report and Recommendation are adopted as the court’s own; defendant’s motion to suppress evidence obtained during the search of the San Antonio apartment is DENIED; the motion to suppress evidence obtained in the search of the automobile is GRANTED; and defendant’s motions to suppress evidence obtained during the search of the Coachmen motor home and the Lyden Mini Warehouse are DENIED.

REPORT AND RECOMMENDATION

JAMES GROH, United States Magistrate Judge.

In a superseding indictment returned on October 4, 1989, defendant is charged with [1547]*1547one count of conspiring to manufacture or distribute methamphetamine from May 15, 1987 to May 31, 1989, in violation of 21 U.S.C. §§ 846, 841(a)(1), and two counts of possessing phenylacetone with intent to manufacture another controlled substance in violation of 21 U.S.C. § 841(a)(1). (Dkt. #2)

Defendant moves to suppress evidence seized pursuant to three search warrants on the ground, among others, that the warrants were issued without bases in probable cause. The warrants are: (1) a Texas state court warrant to search an apartment at 3935 Thousand Oaks, Apt. 901, San Antonio, Texas, and an automobile in the parking lot there (Dkt. #70); (2) a Texas state court warrant to search a Coachman motorhome located in Kingsland, Texas (Dkt. # 59); and a Wisconsin state court warrant to search a mini-warehouse located in the Township of Union Wisconsin (Dkt. #75). This Report and Recommendation, submitted pursuant to 28 U.S.C. § 636(b)(1)(B), recommends that the first motion (Dkt. #70) be granted in part and denied in part and that the other two motions be denied.

FINDINGS OF FACT

For the purpose of this motion, I find the following facts:

1. The Thousand Oaks Warrant

On October 27, 1988, the Hon. David Berchelmann, Judge1 for the 290th Texas District Court at San Antonio, Bexar County, Texas, issued a warrant to search Apt. 901, 3935 Thousand Oaks, San Antonio, and a black 1984 Chevrolet Corvette, Texas license number 355LMH in the parking lot located there.2 The warrant authorized a search for methamphetamine, a controlled substance, and commanded the arrest of those parties controlling the premises or found in the possession of controlled substances. The warrant was executed that afternoon at 3:45 p.m. and the search yielded several items including a number of plastic baggies of a substance believed to be methamphetamine. (See police reports attached to Def. Br., Dkt. # 71)3

The warrant was based on the affidavit of Detective Jack Wright of the San Antonio Police Department sworn at 11:15 a.m., October 27, 1988. The complete factual allegations of the affidavit are as follows:

That [Det. Wright] has good reason to believe and does believe that a certain place in Bexar County, Texas described as The Dublin Square Apartments known as and numbered as 3935 Thousand Oaks and the apartment to be searched being known as and numbered as apartment number 901, and a 1984 Chevrolet Corvette, black in color, Texas license number 355LMH found in the parking lot of the above described premises
In the city of San Antonio, Bexar County, Texas, and being the premises under the control and in charge of John Beach, Philip Fairchild, and Trina Bowers is a place where a controlled substance, to wit: METHAMPHETAMINE is unlawfully possessed in violation of the TEXAS CONTROLLED SUBSTANCE ACT and that such belief of the affiant is founded upon the following information: Affiant did on the 27th day of October 1988 receive information from a credible and reliable person who has on previous occasions given affiant information regarding the trafficking in controlled substances that has proven to be true and correct, but whose identity cannot be revealed for security reasons, that the above said credible and reliable per[1548]

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Cite This Page — Counsel Stack

Bluebook (online)
774 F. Supp. 1544, 1990 U.S. Dist. LEXIS 19314, 1990 WL 306162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fairchild-wiwd-1990.