United States v. Hammond

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Hammond No. 01-5358 ELECTRONIC CITATION: 2003 FED App. 0443P (6th Cir.) File Name: 03a0443p.06 P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X BOGGS, Chief Judge. Clifton Glen Hammond was named in a seven-count superseding indictment issued in September Plaintiff-Appellee, - 1999 on the basis of evidence seized from his property - - No. 01-5358 pursuant to two search warrants. Hammond was charged in v. - Counts One through Seven respectively with manufacturing > more than fifty marijuana plants, in violation of 21 U.S.C. , § 841(a)(1), possessing numerous firearms “during and in CLIFTON GLEN HAMMOND , - Defendant-Appellant. - relation to a drug trafficking crime,” in violation of 18 U.S.C. § 924(c)(1), possessing with the intent to distribute N methamphetamine, in violation of 21 U.S.C. § 841(a)(1), Appeal from the United States District Court possessing a machine gun “during and in relation to a drug for the Eastern District of Kentucky at London. trafficking crime,” in violation of 18 U.S.C. § 924(c)(1), No. 99-00194—Jennifer B. Coffman, District Judge. possessing a machine gun, in violation of 18 U.S.C. § 922(o), possessing a “sawed-off shotgun,” in violation of 26 U.S.C. Argued: December 4, 2002 § 5861(d), and possessing an unregistered destructive device, in violation of 26 U.S.C. § 5861(d). Decided and Filed: December 15, 2003 Following his indictment, Hammond entered a plea of not Before: BOGGS, Chief Judge; and GUY and NELSON, guilty and subsequently filed a motion to suppress evidence Circuit Judges. and a motion to dismiss the charges against him that alleged he possessed firearms “during and in relation to” his crime of _________________ drug trafficking, pursuant to 18 U.S.C. § 924(c)(1). After a hearing on the motion to suppress, Hammond further moved COUNSEL the district court for a Franks hearing. See Franks v. Delaware, 43 U.S. 154 (1978) (holding that a hearing is ARGUED: Warren N. Scoville, WARREN N. SCOVILLE required when a defendant makes a substantial preliminary & ASSOCIATES, London, Kentucky, for Appellant. Charles showing that a false statement necessary to the finding of P. Wisdom, Jr., ASSISTANT UNITED STATES probable cause was made knowingly and intentionally, or ATTORNEY, Lexington, Kentucky, for Appellee. with reckless disregard for the truth, and was included by an ON BRIEF: Warren N. Scoville, WARREN N. SCOVILLE affiant in a search warrant affidavit). The court granted the & ASSOCIATES, London, Kentucky, for Appellant. Charles Franks hearing, but ultimately denied Hammond’s motions to

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suppress and dismiss. Hammond, therefore, pled guilty to have determined that Hammond does occupy this Counts Two, Three, Six, and Seven under a conditional plea location. Since this time Rockcastle Co. Sheriff’s office agreement, while reserving his right to appeal the adverse has received numerous complaints on this residence and determinations of his motions to suppress and to dismiss. On subject stating that the operation was there, confirming the government’s motion, the remaining counts were the complaint from Holt. dismissed, and Hammond was sentenced to thirty-seven months on Count 2, to be served consecutively to the As it turned out, several of the statements made by Detective sentences imposed on Counts Three, Six, and Seven, for a Engle in the above quoted portion of his affidavit were false. total of ninety-seven months. Hammond now appeals the First, Holt did not state that the operation was “inside a side district court’s denial of his two motions to suppress and room of the building,” nor did he mention an “indoor grow dismiss. Because there was no probable cause for the first operation,” although he did refer to Hammond’s garage. search warrant and because the good faith rule established in Second, although Detective Engle’s statement implies that he United States v. Leon, 468 U.S. 897 (1984), does not apply drove by Hammond’s property as a result of the complaint here, we reverse the district court’s denial of Hammond’s made by Holt, and in so doing verified the information motion to suppress. supplied by Holt, that was not the case. Detective Engle admits that he did not find out about Holt’s complaint until I August 5 or 6, when he filled out the application for the warrant and instead drove by Hammond’s property at an On August 6, 1999, Detective Tim Engle filled out an earlier date, on the basis of “numerous,” unspecified, and application for a warrant to search Hammond’s property, anonymous complaints received by the police, complaining including all buildings, vehicles, and persons present on the about the “Hammonds raising marijuana up on Red Hill.” property at the time of the search. Probable cause for the The dispatcher admitted that the brother of Glen Hammond warrant was substantiated by Detective Engle’s affidavit, lived on Red Hill, and professed ignorance of how many other which was attached to the application. In the affidavit, Hammond households may exist on Red Hill in Rockcastle detective Engle stated that: County. Third, Engle testified at the evidentiary hearing that all he was able to verify by driving by Hammond’s property During the first week of April 1999, [Deputy] Danny was the fact that a driveway existed off the main road at the Keeney received information from Jeremy Holt stating entrance to Hammond’s property with a gate across it. that he had attempted to steal marijuana from an indoor grow operation belonging to Glenn Hammonds [sic] in Detective Engle’s affidavit, however, did not end there. Rockcastle Co. on KY-1955. Holt stated that he was Engle went on to explain that he had conducted the following shot at and that he got away, but that they were looking independent investigation in order to verify the information for him. Holt stated that the residence was located off he had obtained on Hammond’s alleged growing operation: KY-1955 beside Morning View Church and that the Location had a gate across the driveway which lead [sic] In addition to confirming the complaints, on 8-5-99 I to a barn/garage style building. Holt stated that the subpoenaed the power records of Glenn Hammonds [sic]. operation was inside a side room of the building. On 4- These records indicate a trailer on the property which is 20-99 Det. Tim Engle conducted a drive-by recon of the using 400 to 700 kilowatts of power. However there is location and verified the complaint. Since this time we no trailer on the property. The other power record #02- No. 01-5358 United States v. Hammond 5 6 United States v. Hammond No. 01-5358

1235-48-001 shows power usage that is consistent with A state judge, on the basis of the information contained in a dwelling. However during the observation of the Detective Engle’s affidavit, issued the requested search location no windows were observed in the building in warrant. On August 6, 1999, Detective Engle, along with question. This along with a security gate, satellite dish, approximately thirteen other officers, executed the warrant. and no trespassing signs tells me that this subject is During the search, a vehicle drove across Hammond’s security conscious which is consistent with other property, in order to get to an adjoining plot. Several officers marijuana growers. On 8-5-99 at approx. 0230 hrs. I followed the vehicle, which was driven by Bill Ponder, the conducted an Aerial Thermal Image of the location in son of the adjoining property owner. Bill Ponder was question that is consistent with other indoor grow approached by law enforcement officers on the scene and operations investigated by this officer. consented to their searching his vehicle, person, and trailer. The officers discovered marijuana in the trailer. Again, there were several inaccuracies in Detective Engle’s statement. First, although Engle stated that there was no While following Ponder across Hammond’s property, the trailer, there is a trailer located at the back of the property. officers passed a roadway that led to a building, which had Second, as stipulated to by the government, the power usage not been previously identified by the officers conducting the records were not for the buildings they were attributed to in search, and which was not included in the warrant under the affidavit. The record that was claimed to be for a trailer, which they were operating. Ponder told the officers that the was actually the power usage record of the building within building was the residence of Glen and Judy Hammond. Late which the marijuana was subsequently found. The other in the evening of that same day, Detective Moore sought and power usage record, which was “consistent with a dwelling,” obtained a search warrant for this building. was for Hammond’s residence and not for the building identified by Engle as having no windows. Third, the During the search of the property, the officers discovered building that Engle claimed had no windows does in fact have marijuana growing inside a barn-like building, along with windows, although it is unclear from the photograph in the sixteen firearms and ammunition, a disassembled sawed-off record whether the only windows it has are dormer windows. shotgun, and four electric blasting caps. Outside the building, The government has agreed that the power usage records were the officers found more marijuana and another firearm, incorrectly referred to in the affidavit. Fourth, the “security alleged to be a machine gun. On the Ponder property, the gate” did not have security features of any kind, as the district officers discovered marijuana in a trailer that was titled to court found. Finally, the government has stipulated that the Hammond. thermal imaging can not be considered, in accordance with the recent Supreme Court decision of Kyllo v. United States, 533 U.S. 27, 34-35 (2001), which held that thermal imaging used to measure the heat emanating from a home constitutes the use of thermal imaging on a home and the use of such imaging on commercial property, and noted that since comm ercial prop erty enjoys a a search, requiring a warrant.1 lesser expe ctation of privacy, it is unlikely that the Sup reme Court’s holding in Kyllo would apply. Id. at 646. Nevertheless, the Elkins panel declined to reach that issue since it was unnecessary to the resolution of 1 the case, and here we too decline to reach that issue since the government W e note that the government’s stipulation may have been has stipulated that Kyllo applies, and there is no discussion on record as improvident because of our relatively recent decisio n in United States v. to whether the barn structure at issue would properly be considered a Elkins, 300 F.3d 638 (6th Cir. 2002). In Elkins, we distinguished between residential or commercial structure. No. 01-5358 United States v. Hammond 7 8 United States v. Hammond No. 01-5358

Hammond was not present during the execution of either unreliable, the reconnaissance drive that Engle said he did in search warrant, and on August 10, 1999, a warrant was issued order to verify Holt’s complaint was actually done prior to for his arrest. On August 17, 1999, the Peach County Holt’s complaint and could not have “verified” anything other Sheriff’s Department in Georgia stopped a tractor-trailer in than the fact that a driveway existed with a gate across it off which Hammond was riding as a passenger, while his cousin of the main road, that Engle lied about the specific drove. Hammond was arrested for possession of a concealed information supposedly supplied by Holt with regard to the .22-caliber single-shot pistol, possession of a small amount of location of the growing operation on Hammond’s property, methamphetamine, and possession of a firearm during the that the power usage records were not for the locations commission of a crime. When the Georgia Sheriff’s specified in the affidavit and must therefore be excluded from Department learned of the outstanding arrest warrant issued consideration, and that the thermal imaging information was in this case, it transported Hammond to Kentucky. Other illegally obtained and must also be excluded from firearms were located inside the truck, but none of them, consideration. The district court when ruling on this question including the .22-caliber pistol in Hammond’s pocket, are held that although there were several misstatements in the listed in the indictment for this case. affidavit, there was still enough to establish probable cause “[g]iven the Holt ‘tip’ (even if the reference to ‘an outdoor II grow operation’ in a ‘side room’ is redacted), the confirmation of the location of the Hammond premises, the Motion to Suppress FLIR thermal image results, and the assertion that the ‘Rockcastle Sherriff’s Office has received numerous The district court’s conclusions of law regarding a motion complaints on this residence and subject [Glen Hammond]’ to suppress are reviewed de novo, while the district court’s regarding marijuana.” findings of fact are reviewed only for clear error. United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000). In The critical question to be determined is whether the addition, the evidence is to be reviewed “in the light most affidavit, apart from the tainted information that is either likely to support the district court’s decision.” Ibid. (quoting inaccurate or illegally obtained, provides the requisite United States v. Navarro-Comacho, 186 F.3d 701, 705 (6th probable cause to sustain a search warrant. See United States Cir. 1999)). v. Charles, 138 F.3d 257, 263 (6th Cir. 1998). In determining if probable cause exists, the court must examine the totality of Hammond contends that Detective Engle’s affidavit in the circumstances. See United States v. Van Shutters, 163 support of the warrant issued to search Hammond’s property F.3d 331, 336 (6th Cir. 1998). If there was not probable cause contained false information that was essential to the probable for searching Hammond’s property, then the only way that the cause determination made in issuing the search warrant. evidence at issue in this case would survive suppression is Hammond argues that as a result the evidence seized from his through the Leon good-faith rule. property in both the initial search done, based on the allegedly faulty affidavit, and in the subsequent search done later that Probable Cause day on the basis of information garnered during the initial search, should be suppressed. In particular, Hammond Since the district court’s ruling, Kyllo was decided by the maintains that the information obtained from the informant, Supreme Court and on that basis the government stipulated Holt, and restated in Detective Engle’s affidavit was stale and that the thermal imaging results could not be considered. No. 01-5358 United States v. Hammond 9 10 United States v. Hammond No. 01-5358

This leaves us with three pieces of information in Engle’s encounter in the night or regenerating conspiracy?), the affidavit that are not tainted. First, there is the fact that Holt criminal (nomadic or entrenched?), the thing to be seized gave Keeney a “tip” that there was “dope” on Glen (perishable and easily transferable or of enduring utility to its Hammond’s property, although this tip was received at some holder?), the place to be searched (mere criminal forum of point prior to March 1999 – at least five months before convenience or secure operational base?).” United States v. Detective Engle requested the search warrant — and does not Greene, 250 F.3d 471, 480-81 (6th Cir. 2001) (quoting United specify the location of the marijuana on the property. Second, States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)). In this there is the “verification” of Hammond’s address by Engle. case, the crime of drug trafficking is ongoing, the defendant’s And third, there were several anonymous phone calls vaguely location is established, the drugs were likely to be there for an complaining about “the Hammonds on Red Hill” raising indefinite period of time, and the place to be searched marijuana.2 Everything else contained in the affidavit was constituted a secure operational base. Holt’s tip was not, either the result of a mistake, a fabrication, or cannot legally therefore, stale. be considered. Nevertheless, Holt’s information was vague, not obviously The government argues that Holt’s “tip” was enough on its reliable, and entirely unsupported by any independent own to produce probable cause and relies on United States v. investigation on the part of the police. The tip, on its own, is Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc), in which insufficient for establishing probable cause. this court held that under a totality of the circumstances approach, a confidential informant’s information need not In Allen, this court stated that “where a known person, always be independently corroborated. Alternatively, the named to the magistrate, to whose reliability an officer attests government contends that the good faith exception to the with some detail, states that he has seen a particular crime and warrant requirement validates the search. See United States particular evidence, in the recent past, a neutral and detached v. Leon, 468 U.S. 897, 926 (1984) (holding that the magistrate may believe that evidence of a crime will be exclusionary rule should not be used to suppress evidence found.” Allen, 211 F.3d at 975. However, here, as noted by when the officers who obtained the evidence acted in the federal magistrate judge in his report and reasonable reliance on a search warrant issued by a neutral recommendation, officer Engle did not provide any detail as and detached magistrate that is later found to be invalid). We to the reliability of the named informant. The affidavit at find neither of these arguments convincing. issue in Allen noted that the officer knew the informant for five years. Here, Detective Engle did not state how long Holt’s Tip Keeney had known Holt, or if he, himself, knew Holt. Detective Engle did not even state that Holt was a “reliable Holt’s tip was not stale, as Hammond contends. A source” or that he had given the police reliable information in determination of whether an informant’s tip is stale rests on the past. Cf. United States v. Pinson, 321 F.3d 558, 563 (6th several factors including “the character of the crime (chance Cir. 2003) (holding that an affidavit met “the Allen test” where the officer stated in the affidavit that he knew the informant was “reliable from past information received from 2 said [informant],” the informant was familiar with the drugs The calls only referenced “the Hamm onds” and did no t specifica lly at issue from “past experience and exposure,” and where the identify Glen Hamm ond, the property in question, or the absence of other perso ns nam ed H amm ond in the vicinity. affidavit contained the officer’s personal observation of the No. 01-5358 United States v. Hammond 11 12 United States v. Hammond No. 01-5358

informant’s drug deal, his pat down of the informant before warrant, because it “was based upon information provided by and after the purchase of the narcotics, and the fact that the a known reliable informant, and was verified by Detective drugs purchased tested positive for cocaine base). Holt’s tip Gannon to the extent possible.” Id. at 742. Specifically, the does not pass the Allen test and, therefore, cannot constitute affidavit indicated that the confidential informant had probable cause on its own. “provided credible information in the past which has led to the arrest and/or conviction of ‘more than seventy individuals Despite the minimal probative value of Holt’s information, for violations of state and/or federal drug laws, as well as the the tip can take on an increased level of significance for confiscation of more than $100,000.00 and 5 kilograms of probable cause purposes, if corroborated by the police controlled substances.’” Ibid. In addition, the confidential through subsequent investigation. See United States v. Leake, informant had described the defendant’s illegal activity and 998 F.2d 1359, 1365 (6th Cir. 1993). See also United States residence in significant detail, noting, for example, that the v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). For example, defendant had received a large amount of cocaine within the in United States v. Smith, 783 F.2d 648 (6th Cir. 1986), we past day from a man by the name of Antonio Cook and that considered a warrant obtained on the basis of a tip provided the defendant used his car in the distribution of that cocaine, by a confidential informant, whose information was which he described as a “1980's model gray Chevrolet corroborated through the independent investigation of the Cavalier, Ohio Temporary License Number K591513.” Ibid. police. In the supporting affidavit, the officer stated as The confidential informant was also able to describe the follows: defendant’s house as being On the 20th day of August, 1984, at approximately 5:00 the downstairs unit in a two family, two and one half p.m., the affiant received information from a reliable story, white wood sided dwelling with green trim, the informant that Eric Helton was producing marijuana at numbers ‘1439,’ the address for the upstairs unit, clearly his residence. Acting on the information received, affiant visible on the south side of the entrance door to the conducted the following independent investigation: On upstairs unit, the structure being located on the east side August 21, 1984 at 11:30 A.M. Detective William of East 116th Street, facing west. Stweart [sic] observed a marijuana plant growing beside the residence of Eric Helton. Ibid. Finally, the police corroborated the tip provided by the informant. First, the detective on the case verified that the Smith, 783 F.2d at 649. The panel stated that the tip standing vehicle described by the informant was in fact registered to alone would not have been sufficient to establish probable the defendant at the address provided by the informant. cause, Smith, 783 F.2d at 650, yet upheld the warrant because Second, the detective verified that the defendant had a prior the officer’s observations verified the tip and, in addition, the history of criminal offenses. Third, the detective stated that informant’s reliability had been established. “Antonio Cook [was] a person known to members of the Task Force as a supplier of cocaine on the east side of Cleveland.” In a more recent case, a warrant was challenged as Id. at 741. insufficient to establish probable cause because the detective’s independent investigation was inadequate to Given these examples, it is apparent that the information corroborate the informant’s claims. United States v. King, left for us to rely on for probable cause in this case is 227 F.3d 732, 741 (6th Cir. 2000). The panel upheld the insufficient. Neither the anonymous phone calls nor No. 01-5358 United States v. Hammond 13 14 United States v. Hammond No. 01-5358

Detective Engle’s drive by Hammond’s residence can be presented in his affidavit. Detective Engle by his own considered substantial enough to corroborate Holt’s tip for admission was informed by Deputy Keeney of Holt’s tip purposes of probable cause. First, Holt was not established as within a day of filling out the application for the warrant in a reliable informant in any respect. Second, the information this case, yet Engle implied in his affidavit that he drove by provided by Holt and the anonymous callers was lacking in Hammond’s property in order to verify Holt’s tip in April. detail with respect to the location of Hammond’s residence, Detective Engle stated that Holt informed Deputy Keeney that the location of the marijuana within Hammond’s residence, the marijuana was located in a “side room” of the building, and specifics regarding the illegal operation allegedly yet Deputy Keeney testified at the Franks hearing that he did conducted by Hammond. The information does not, in not recall such a statement. Detective Engle stated in his quantity or quality, approach the detail offered, for example, affidavit that he “verified [Holt’s] complaint” when he drove in Smith or King. Third, Detective Engle, when driving by by Hammond’s property, yet he did not see any marijuana the property, noticed nothing out of the ordinary at the growing or for that matter any indications of criminal activity. Hammond residence. Detective Engle only served to All he was able to “verify” was that a Glen Hammond lived corroborate the fact that a Hammond lived in Rockcastle in Rockcastle County off of KY 1955. Detective Engle stated County on KY 1955 and that there was a gate across his with certainty that there was no trailer on the Hammond property. Such information would not be difficult for anyone property, yet there was a trailer. The power records were not to obtain and does not suggest criminal activity. This, along for the buildings they were attributed to in the affidavit. The with anonymous phone calls providing absolutely no specific building that Engle claimed to have no windows, did in fact information, is not enough for probable cause. have windows. This is not the case in which an officer made a small error in the affidavit, when applying for a warrant. Good Faith Exception The number of falsehoods and half-truths told are substantial and reflect, at the very least, a reckless disregard for the truth. It is well established that the Fourth Amendment For these reasons, we should reverse the district court’s ruling exclusionary rule does not apply in cases where law and grant Hammond’s motion to suppress the evidence seized enforcement officers reasonably rely in good faith upon a in both searches.3 search warrant, even if that warrant is ultimately found to be invalid. Leon, 468 U.S. at 922. Nevertheless, this good-faith III exception to the exclusionary rule established in Leon does not apply when 1) the supporting affidavit contained knowing Hammond also contends that there was insufficient or reckless falsity, 2) the issuing magistrate failed to act in a evidence to support his conviction under 18 U.S.C. neutral and detached fashion and served merely as a rubber § 924(c)(1). However, given our decision to grant stamp for the police; 3) the supporting affidavit did not Hammond’s motion to suppress, it is unnecessary for us to provide the magistrate with a substantial basis for determining evaluate this second issue on appeal. For the reasons given the existence of probable cause; or 4) the officer’s reliance on above, we REVERSE the district court’s denial of the warrant was neither in good faith nor objectively reasonable. 3 There is no question that Officer Engle acted with reckless The government concedes that if the first warrant is invalidated, the disregard for the truth in view of the remarkable inaccuracies second warrant would also be invalidated, as it would be “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963). No. 01-5358 United States v. Hammond 15

Hammond’s suppression motion and REMAND this case for proceedings consistent with this opinion.