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United States v. Green

United States District Court, W.D. Missouri, Western Division

May 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HERBERT G. GREEN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT

         Before the Court is Defendant Herbert Green's Motion to Suppress Evidence. (Doc. 23). Following an evidentiary hearing, Chief United States Magistrate Judge Matt J. Whitworth issued his Report and Recommendation recommending that Defendant's motion be denied. (Doc. 39.) Defendant subsequently filed Objections to the Report and Recommendation (Doc. 44), and the Government filed its response opposing Defendant's objections (Doc. 48). After careful consideration, and for the reasons below, the Court OVERRULES Defendant's objections to the magistrate court's Report and Recommendation; ADOPTS the magistrate court's Report and Recommendation in its entirety; and DENIES Defendant's motion.

         Discussion

         The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court also “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         Here, Defendant objects to the magistrate court's conclusions regarding: (1) the particularity of two initial state search warrants; (2) the scope of the search conducted by law enforcement pursuant to the state warrants; and (3) the justification for the protective sweep. Because of the alleged defects in the state warrants and the initial search, Defendant argues that a subsequent federal warrant was granted based on illegally obtained evidence, thus making it invalid. The Court will address these objections and arguments below.[1]

         I. Particularity of the State Search Warrants

         The Fourth Amendment provides that warrants must “particularly describ[e] the place to be searched, and the person or things to be seized.” United States v. Pennington, 287 F.3d 739, 744 (8th Cir. 2002) (quotation marks omitted). In this case, Defendant argues that the state warrants lacked particularity with respect to any evidence other than the package. Further, Defendant objects to the magistrate court's finding that “[a] search warrant for the [package] and an anticipatory search warrant for the address to which the [package] was to be delivered were obtained from Platte County, Missouri.” (Doc. 39 at 2.) Defendant maintains that this finding does not address his challenge to the particularity of the warrants.

         Contrary to Defendant's assertion, both of the state search warrants specifically describe the place to be searched and the thing to be seized.[2] There was no need for the warrants to be particular about other evidence, because the suspect parcel and marijuana found within were the only items seized in the course of the initial search.[3] (Doc. 32, Tr. at 14, 23, 48, 65.) Accordingly, the state warrants meet the Fourth Amendment requirements for particularity.

         II. Scope of the Initial Search

         Defendant objects to the magistrate court's conclusion that “the tactical team's initial securing of the premises was reasonable and did not exceed the scope of the state warrant.” (Doc. 39 at 4.) Defendant argues that since the tactical team located the package immediately inside the front door of the apartment, they had no legal basis for moving through the rest of the apartment, and in doing so they exceeded the scope of the warrant.

         First, Defendant's argument mischaracterizes the tactical team's protective sweep by addressing it as though it were indistinguishable from the initial search. These were two separate acts by police: an initial sweep conducted to ensure it was safe for detectives to execute the search warrants, and the search carried out pursuant to the warrants. The search carried out by detectives pursuant to the state warrants was limited to: (1) seizing and opening the parcel; (2) seizing the marijuana found within; and (3) photographing incriminating items which the tactical team had located in plain view during the protective sweep. (Doc. 32, Tr. at 14, 21, 38.) Such acts did not stray beyond the scope of the state warrants because the apartment, the package, and its contents were identified specifically by the warrants. (Doc 25-1 at 1, 6.) Further, the photographed items were located in plain view during the protective sweep. Consequently, the Court agrees with the magistrate court that the initial search of Defendant's apartment did not exceed the scope of the initial search warrants.

         Second, the initial protective sweep in this case was limited mostly to a cursory inspection of those spaces where a person could be found. It was not conducted in order to search for the package, but to search for people who might destroy evidence or pose a danger to officers executing the warrant.[4] The actions of the tactical team comport with these objectives. Additionally, the tactical team would have been within their rights to seize any incriminating items they found in plain view while conducting the protective sweep under the “plain view” doctrine. United States v. Evans, 966 F.2d 398, 400 (8th Cir. 1992); United States v. Green, 560 F.3d 853, 856-57 (8th Cir. 2009). Instead, the tactical team informed the detectives executing the state warrants of the presence of incriminating articles they observed within plain view. (Doc. 32, Tr. at 13.) In sum, the initial protective sweep cannot be conflated with the subsequent search conducted pursuant to the state search warrants.

         However, the Court cannot endorse the tactical team's search inside the shoebox located on top of Defendant's dresser without further information and authority to guide the Court's decision.[5] A search inside an enclosed shoebox stretches the constitutional bounds of a protective sweep to its limits. Nevertheless, the Court finds that even if the search inside the shoebox during the protective sweep was unconstitutional, the evidence located as a result would be admissible under the attenuation doctrine as applied in Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016). The attenuation doctrine would apply because: (1) the subsequent federal search warrant obtained by police was supported by sufficient lawfully obtained evidence to act as an intervening circumstance;[6] and (2) police misconduct in this case was not purposeful or flagrant. Thus, while the Court finds the search inside the shoebox, if the shoebox was covered, to be questionable, it does not warrant granting the Motion to Suppress.

         III. Justification for ...


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