United States v. Schuster

775 F. Supp. 297, 1990 U.S. Dist. LEXIS 19285, 1991 WL 191404
CourtDistrict Court, W.D. Wisconsin
DecidedSeptember 6, 1990
DocketNo. 90-CR-58-S
StatusPublished
Cited by3 cases

This text of 775 F. Supp. 297 (United States v. Schuster) 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. Schuster, 775 F. Supp. 297, 1990 U.S. Dist. LEXIS 19285, 1991 WL 191404 (W.D. Wis. 1990).

Opinion

MEMORANDUM AND ORDER

SHABAZ, District Judge.

The report and recommendation of the Hon. James Groh, United States Magistrate for the Western District of Wisconsin, in the above entitled matter, dated August 20, 1990, recommends that the defendant’s motion to suppress evidence seized pursuant to a search warrant be denied. Subsequent to the report the defendant objected to said recommendation and once again filed with the Court his memorandum of July 20, 1990 entitled “Memorandum on Issues of Curtilage and Standing in Support of Motion to Suppress.” The defendant apparently does not request that the Court review the probable cause issue and, accordingly, it shall make a de novo determination of the disputed portions of the report which, based upon that memorandum of the defendant referred to herein, appear to be standing and curtilage. It may be that the facts are in dispute; however, this cannot be discerned from the objection offered by the defendant. In any event, the Court’s examination of the record discloses that the defendant James E. Schuster is charged with one count of conspiring with Ervin L. Harnois to possess marijuana plants with intent to manufacture in violation of 21 U.S.C. §§ 846 and 841(a)(1) during the period June 1, 1986, to August 1, 1989.

On July 31, 1989, an acting Circuit Court Judge of Bayfield County, Wisconsin, issued a warrant to search the property, house and outbuildings of Harnois located four miles west of Iron River, Bayfield County, Wisconsin, for marijuana and items related to the growing and processing of the marijuana. A sworn complaint by Bayfield County Deputy Sheriff James Jacobson was the basis for the warrant. The complaint, as correctly summarized by the Magistrate, follows.

Jacobson learned from a citizen informant in the latter part of 1988 that Harnois was believed to be growing marijuana behind his residence. Jacobson conducted an aerial surveillance of the residence at an altitude of about 2,500 feet on July 26, [299]*2991989, and observed what he believed to be marijuana growing in three different locations in the woods north of the Harnois residence. Jacobson also approached the residence on foot on June 17 and July 11, 1989, and found evidence of past and present marijuana cultivation in those woods. On July 15, 1989 he also took aerial photos. The two photographs of the garden taken by Jacobson were attached to his complaint.

On July 31, 1989, Jacobson and Chet Lonczak, United States Forest Special Agent, approached the property on foot from the east, discovering two marijuana gardens under cultivation in a low, swampy area in the woods to the north of defendant’s garage and shed. One garden contained 25 growing marijuana plants, a water drum, garden fertilizer and a hoe. The other, located about 150-200 feet north of the garage and storage shed, contained about 60 growing plants individually potted in five-gallon containers. The grass indicated frequent use and discarded marijuana leaflets indicated manicuring. A sample from one of the plants tested positive for marijuana. Jacobson’s past experience led him to observe that marijuana could be cultivated both indoors and outdoors, that harvesting could be undertaken during July of 1989, and that harvested plants are dried in enclosures, including houses and outbuildings, which buildings were apparently located within the curtilage of the Harnois house.

The warrant was executed on August 1, 1989, and the search produced 182 growing marijuana plants in the gardens and about six pounds of packaged marijuana in the house, to include various other items relating to the producing and selling of marijuana.

On March 9, 1990, the Wisconsin Division of Criminal Investigation Special Agent Jill Sandor interviewed Debra Carlson, who identified herself as a longtime friend of Harnois, about his relationship with defendant Schuster. The information provided by Carlson is included in Sandor’s report, which describes events occurring in 1987 and 1988 wherein Carlson reported her observations of the defendant bringing plants and seedlings to Harnois on three occasions during that period.

Although the defendant describes those facts as found by the Magistrate in a conclusory fashion, they may be considered as they concern the issue of standing. The Court finds that Jacobson entered the Harnois property as found by the Magistrate prior to the issuance of the warrant; that Carlson specifically informed Special Agent Sandor that she observed James Schuster bringing plants and seedlings to the Harnois residence in 1987-1988 and that the items were stored therein.

The statement of facts and conclusions most favorable to the defendant, however, does not in any way suggest the bail- or/bailee relationship which the defendant alleges.

ISSUE OF STANDING

The defendant claims an interest in the Harnois property by virtue of a bailment relationship. As determined by the Magistrate, he has failed to make the threshold factual showing which is required before an evidentiary hearing will be held. The Court need only grant a suppression hearing when a defendant presents facts which are definite, specific, detailed and nonconjectural. Here we only have information from Carlson contained in Sandor’s report which describes events occurring in 1987 and 1988. The search took place in August 1989. There is nothing in the report to connect the defendant with the cultivation of marijuana by Harnois in 1989. The report does not in any way suggest the bailment relationship which the defendant attempts to infer. The two persons who could have definitely, specifically, and in detailed fashion suggested a bailment relationship have failed in any way whatsoever to do so.

With nothing more than that submitted by the defendant there is no justification for holding an evidentiary hearing in this matter, nor is there determined to be a bailment relationship existing between Harnois and the defendant. Even had, however, that bailment relationship been [300]*300established the circumstances would not have provided the defendant standing to challenge the search. Defendant makes no attempt to suggest an interest in the Harnois property that is the “invaded place.” None of the following factors to be considered receives an affirmative answer. Those factors as stated in United States v. Duprey, 895 F.2d 303, 309 (7th Cir.1989) are as follows:

(1) whether the defendant has a possessory interest in the place searched; (2) whether he has a right to exclude others therefrom; (3) whether he has exhibited a subjective expectation that the place remains free from governmental invasion; (4) whether normal precautions were taken to protect his privacy; and (5) whether he was legitimately on the premises.

Fourth Amendment rights are personal rights and are stated in Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978) as follows:

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Alderman [v. United States], supra [

Related

Hart v. Myers
183 F. Supp. 2d 512 (D. Connecticut, 2002)
People v. Hakel
870 P.2d 1224 (Supreme Court of Colorado, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
775 F. Supp. 297, 1990 U.S. Dist. LEXIS 19285, 1991 WL 191404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schuster-wiwd-1990.