United States v. Jarrell

68 F. App'x 622
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 25, 2003
DocketNo. 02-5067
StatusPublished
Cited by7 cases

This text of 68 F. App'x 622 (United States v. Jarrell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jarrell, 68 F. App'x 622 (6th Cir. 2003).

Opinion

DUGGAN, District Judge.

Defendant-Appellant, Tommy D. Jarrell (Jarrell), entered a conditional plea of guilty in the United States District Court for the Eastern District of Tennessee on one count of violation of 21 U.S.C. § 841(b)(1)(B). Jarrell’s plea was conditioned on being able to challenge the search that formed the basis for the indictment and being able to appeal any decision of the court regarding this challenge. The district court denied Jarrell’s motion to suppress and Jarrell subsequently entered his guilty plea. After the pre-sentence report was prepared, Jarrell objected to the report and moved for a downward departure under United States Sentencing Commission, Guidelines Manual, § 5K2.13 (Nov.2000), for diminished capacity. The district court denied Jarrell’s motion and sentenced Jarrell to 13 months of imprisonment and three years of supervised release. Jarrell filed a timely appeal of the district court’s denial of his motion to suppress and his motion for downward departure.

Background

On October 24, 2000, Jarrell was indicted on one count of violation of 21 U.S.C. § 841(b)(1)(B) for manufacturing in excess of 100 marijuana plants. This Indictment arose out of information received from a confidential informant. The confidential informant had contacted Federal Bureau of Investigation Task Force Agent Kim Rively, who in turn contacted Special Agent Rodd Watters of the Tennessee Bureau of Investigation. As set out in the Affidavit for Search Warrant by Agent Watters:

The informant, who has not provided any information in the past, advised that a subject living in Chattanooga, at the present time, was growing marijuana with the aide of indoor growing equipment. The informant advised that, TOMMY D. JARRELL, a person known by the informant, was growing marijuana in an old garage located in the rear of the property located at 507 Tunnel Blvd. The informant also advised that JARRELL had approximately $20,000.00 worth of growing equipment, including lights that hang from the ceiling, in the garage. The informant also stated that he/she had been in the grow in the last thirty (30) days and the grow was active. This informant advised that JARRELL had two large rottweiler dogs positioned outside of the old garage. This informant is not working off any charge, nor are any charges pending, nor has the informant asked for any reward in this case.

Based on this information, Agent Watters and another agent visited the location on December 10, 1999. Agent Watters found the residence at 507 Tunnel Blvd. fit the description that the informant had given. Agent Watters noticed that the doors and windows of the detached garage on the premises were covered with plywood, there was a “beware of dog” sign on the front corner of the residence, a large rottweiler was chained near the front of the garage, and there were two to three electrical drop cords and “a garden hose running from the main residence to the detached garage.”

Based on this information, Agent Watters issued a subpoena to the Electrical Power Board to obtain electrical power usage records for two years on the 507 residence and two other nearby residences on the same side of Tunnel Blvd. According to Agent Watters’ affidavit for a search warrant, the usage records revealed that the 507 residence used two to three times that which was used at one of the other addresses, and four to five times that which was used at the other address. In [625]*625addition, Agent Watters asserted that the electricity was not being billed to Jarrell.1

Agent Watters decided to conduct thermal imaging of the detached garage to determine whether “Grow Lights,” which emit extreme heat, were present. On December 16, 1999, Agent Watters conducted the thermal imaging on the detached garage at the 507 residence and two other similarly situated garages. He found a very strong heat signature emitting from the detached garage at the 507 residence. Neither of the other two heat signatures Agent Watters obtained from the other residences were comparable to the 507 residence. A search warrant was then issued based on this Affidavit.

The search warrant was executed on December 21, 1999. The agents found “an extensive indoor marijuana cultivation operation which included 124 growing marijuana plants, marijuana grow lights, ballasts, growing soil, fertilizer, nutrients, etc. in the detached garage of 507 Tunnel Blvd.”

Discussion

Jarrell appeals the district court’s denial of his motion to suppress and the district court’s denial of his motion for downward departure of his sentence pursuant to USSG § 5K2.13.

Motion to Suppress:

Jarrell filed a motion to suppress in the district court, arguing, inter alia, that the search warrant violated the Fourth Amendment. The district court found that because of the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the thermal imaging used by Agent Watters, without a separate search warrant for the thermal imaging, was a Fourth Amendment violation and, therefore, could not be considered in determining whether a search warrant should issue. Without the thermal imaging, the district court found that “the question of probable cause is quite close, but just misses the mark.” The court, however, applied the good faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and denied Jarrell’s motion. Jarrell appeals the court’s decision. This Court reviews a district court’s findings of fact on a suppression issue under the clearly erroneous standard, and its conclusions of law under a de novo standard. United States v. Avery, 137 F.3d 343, 348 (6th Cir.1997).

In Leon, the Supreme Court held that a good faith exception applies to the Fourth Amendment exclusionary rule. Leon, 468 U.S. at 905, 104 S.Ct. 3405. The good faith exception provides

that the fruits of a constitutionally infirm search need not necessarily be suppressed unless: (1) the warrant contained a knowing or reckless falsehood; (2) the issuing judge acted as a mere “rubber stamp” for the police; or (3) the warrant and affidavit, even after extending appropriate deference to the issuing judge’s determination, did not establish probable cause or possessed a technical deficiency such that the executing officers cannot reasonably assume the warrant to be valid.

United States v. Logan, 250 F.3d 350, 366 (6th Cir.2001)(citing Leon, 468 U.S. at 919-923, 104 S.Ct. 3405). Jarrell focuses his “inquiry on ... ‘whether a reasonably well-trained officer would have known that the search was illegal despite the magistrates [sic] authorization^]’ ” In other words, Jarrell argues under the third [626]*626prong above that the executing officers in this case could not have reasonably assumed that the warrant was valid.

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Related

United States v. Kattaria
553 F.3d 1171 (Eighth Circuit, 2009)
United States v. Clay
521 F. Supp. 2d 633 (W.D. Michigan, 2007)
Jarrell v. United States
540 U.S. 1005 (Supreme Court, 2003)

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68 F. App'x 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jarrell-ca6-2003.