United States v. Hammond ( 2003 )

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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No. 01-5358 United States v. Hammond 3 4 United States v. Hammond No. 01-5358
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.