United States v. Wright , 131 F. App'x 471 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0350n.06
Filed: May 3, 2005
No. 04-3758
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
RONALD L. WRIGHT, )
)
Defendant-Appellee. ) OPINION
_______________________________________)
Before: KENNEDY, MOORE, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. In this case, the United States appeals the
district court’s order suppressing evidence seized during a search of the property owned by the
Defendant-Appellee, Ronald L. Wright (“Wright”). The district court found that the affidavit
supporting the search warrant contained a material false statement and also omitted a material fact,
both of which were the result of a deliberate or reckless disregard for the truth by the attesting
officer. Upon review, we conclude that the unaffected portions of the affidavit are sufficient to
establish probable cause to search Wright’s property. Therefore, the order of the district court
suppressing the evidence collected pursuant to the search is hereby REVERSED.
I. BACKGROUND
On August 20, 2001, while conducting aerial surveillance of Athens County, officers from
the Ohio Bureau of Criminal Investigations (“BCI”) spotted two marijuana patches located in Wayne
National Forest near state route 78 (“SR78”). The BCI officers subsequently notified the Athens
County sheriff’s department about their discovery. Responding to the report, sheriff’s deputies
Steve Sedwick (“Sedwick”) and Jerry Hallowell (“Hallowell”) entered the forest and confirmed the
presence of marijuana plants. The marijuana patches were located on federal land immediately
across SR78 from Wright’s property. The next closest property is more than two hundred yards
away on SR78. At one of the marijuana patches, Hallowell discovered a green garden hose, which
led away from the patch and towards the road. Hallowell followed the hose from the patch through
a creek to the roadway, at which point it entered a culvert under SR78. The hose exited the culvert
on the other side of SR78 and ran along the wire fence before turning up and running under the fence
into a field on Wright’s property. The officers testified that from SR78 a person could see above
and through the wire fence, and thus they could plainly see the hose lying in the field.
After observing that the hose ran under the fence, Hallowell entered Wright’s property by
walking around the end of the wire fence, which was located approximately thirty feet from the
driveway’s entrance. The property did not have a gate, a secure fence, or a no trespassing sign.
Hallowell followed the green hose to where it ended, just short of a garden facing SR78. Though
the hose did not connect to anything, Hallowell noticed two other hoses lying on either side of the
garden. Hallowell also walked up the driveway to make contact with someone at the house, but
there was no response to his knocking on the door. Hallowell then returned to the police cruisers
and informed Sedwick of his discovery. Sedwick and Hallowell re-entered Wright’s property and
followed the green hose from the fence line to where it ended just short of the garden. The garden
was approximately seventy-five feet from the roadway. Sedwick noticed the two other hoses on
either side of the garden as well. He followed the one on the left side of the garden to where it ended
at a drained-out pond on the property. The hose which ran to the pond was brownish red in color
and had a larger diameter than the green hose which ran from the property to the marijuana patch
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in the national forest. While following the brownish red hose, Sedwick observed six more marijuana
plants in the garden on Wright’s property. The hose on the right side of the garden was green in
color and similar to the one which ran to the marijuana patch. It was connected to a “yard hydrant.”
Joint Appendix (“J.A.”) at 298 (Sedwick Test. at 61). After following the hoses and discovering the
additional plants, the deputies returned to their cruisers to prepare a request for a search warrant.
Neither of the officers had entered the garden nor seized any evidence from Wright’s property yet.
To obtain a search warrant, Sedwick prepared an affidavit and reviewed it with the assistant
county prosecutor, Colleen Flanagan (“Flanagan”). Flanagan added several handwritten statements
to the affidavit as well. The typed and handwritten portions of the affidavit state the following
factual basis for probable case:
On this date, spotters in a B.C.I&I [sic] helicopter spotted marijuana plants growing
across the highway from the above residence. A water hose is running to the
marijuana plants on the west side of 78 through a culvert that goes under SR78 from
a pond located on the property of 7840 SR 78. The pond is approximately 50 yards
from the above residence on the above property. Six more marijuana plants were
located in the garden of Wright’s residence of 7840 SR 78. Based on my training
and experience [in] investigating drug cases[,] evidence of drug cultivation will be
found in the house[.] . . . The six plants growing in the garden of 7840 are within the
curtilage of the residence. Curtilage includes mowed property of the residence and
the garden and the pond.
J.A. at 30 (Search Warrant Aff.). Sedwick signed the affidavit under oath and presented it to a state-
court judge, who granted the warrant request. Upon execution of the search warrant, the police
recovered several more marijuana plants and various firearms from Wright’s property.
On October 9, 2003, the grand jury indicted Wright on three counts in connection with his
manufacturing and possession of marijuana. Shortly thereafter, Wright moved to suppress the
evidence obtained through the search warrant on the grounds that the supporting affidavit contained
material false statements. Pursuant to the Supreme Court’s holding in Franks v. Delaware, 438 U.S.
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154, 155-56 (1978), the district court held an evidentiary hearing to determine whether “a false
statement knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of
probable cause.” Following the hearing, the district court concluded that the statement in the
affidavit that “[a] water hose is running to the marijuana plants on the west side of 78 through a
culvert that goes under SR78 from a pond located on the property of 7840 SR 78” was knowingly
made and materially false. J.A. at 30 (Search Warrant Aff.). Moreover, the district court found that
the affidavit omitted the material fact that the information about the pond and the six additional
marijuana plants was discovered during an earlier search of the property by the officers. Applying
the criteria laid out in United States v. Dunn, 480 U.S. 294, 301 (1987), the district court found that
the garden and the pond were part of the curtilage of Wright’s residence, and therefore could not be
searched by the police without a warrant. Thus, the district court concluded that the omission in the
affidavit that the information was obtained through an earlier illegal search was material and
undermined the probable cause determination. As a result of these findings, the district court
granted the defendant’s motion to suppress all the evidence obtained as a result of the search
warrant. Pursuant to 18 U.S.C. § 3731, the government appeals this ruling.
II. ANALYSIS
We have stated that upon review of a “district court’s ruling on a Franks challenge, we
review de novo the district court’s legal conclusions, and we review the district court’s findings of
fact for clear error.” United States v. Keszthelyi, 308 F.3d 557, 566 (6th Cir. 2002). Applying this
standard, we conclude that the district court erred in suppressing the evidence obtained through the
search warrant in this case.
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The Supreme Court has held that a search warrant “‘must be voided’” if the defendant can
establish “(1) that ‘a false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit,’ and (2) that ‘with the affidavit’s false
material set to one side, the affidavit’s remaining content is insufficient to establish probable
cause.’” Id. (quoting Franks, 438 U.S. at 155-56). We have recognized that in addition to false
statements, material omissions may also form the basis of a Franks challenge. United States v.
Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). In this case, the district court found that the warrant was
void because the affidavit included both a false statement and a material omission. We will review
each aspect in turn.
A. The False Statement
The first step in the Franks analysis is to determine whether “a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant
affidavit.” Franks, 438 U.S. at 155-56. In this case, Sedwick stated in the affidavit that “[a] water
hose is running to the marijuana plants on the west side of 78 through a culvert that goes under SR78
from a pond located on the property of 7840 SR 78.” J.A. at 30 (Search Warrant Aff.). We agree
with the district court that this statement is “undisputedly inaccurate.” J.A. at 228 (Dist. Ct. Mem.
& Order at 23). The hose running from the national forest ended in the field before the garden and
was not connected to the hose which ran to the pond. Sedwick himself testified that he followed the
hose to its end and saw it was unconnected. J.A. at 266-67 (Sedwick Test. at 29-30). Therefore,
Sedwick exhibited at least a reckless disregard for the truth by stating otherwise in the affidavit.
Thus, the first step of the Franks analysis is satisfied.
The next step in the analysis is to determine “with the affidavit’s false material set to one
side,” whether “the affidavit’s remaining content is insufficient to establish probable cause.”
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Franks, 438 U.S. at 156. The district court held that “striking the false statement that the hose ran
from the pond to the marijuana plants across the road eviscerates the connection between the
marijuana plants across the road and Defendant Wright’s property, and therefore extinguishes any
nexus between the illegal marijuana cultivation across the roadway and the residence.” J.A. at 234
(Dist. Ct. Mem. & Order at 29). Striking the entire statement, however, cuts too broad a swath. The
underlying purpose of the exclusionary rule is that “while the government should not profit from its
illegal activity, neither should it be placed in a worse position than it would otherwise have
occupied.” Murray v. United States, 487 U.S. 533, 542 (1988). In this case, Sedwick stated in the
affidavit that “[a] water hose is running to the marijuana plants on the west side of 78 through a
culvert that goes under SR78 from a pond located on the property of 7840 SR 78.” J.A. at 30
(Search Warrant Aff.) (emphasis added). The only false part of the statement was the reference to
the pond. Most importantly, the fact that a water hose is running to the marijuana plants through a
culvert under SR78 from Wright’s property is undisputedly accurate. Thus, only the reference to
the pond should be stricken, and the appropriate inquiry is whether the remaining part of the
sentence is sufficient to establish probable cause to search the property.
The Supreme Court has stated that the determination of probable cause is “a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is
a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois
v. Gates, 462 U.S. 213, 238 (1983). In United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.) (en
banc), cert. denied, 125 S. Ct. 261 (2004), we held that the mere fact that marijuana was grown near
a residence and that a road ran nearby was insufficient to establish “the required nexus between the
[defendants’] residence and evidence of marijuana manufacturing.” We noted, however, that had
the affidavit stated that “beaten paths led from the marijuana patches to the door of the residence,
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and that two men had been spotted walking from the marijuana patches to the residence, the affidavit
would likely have been sufficient to establish probable cause.” Id.
In this case, by contrast, the evidence linking Wright’s residence to the marijuana patches
is substantially stronger than used walkways and a single observed visit. Wright argues in his brief
that without the water source, observation of the hose is suspicious but not sufficient to establish
probable cause. Resp. Br. at 22. We disagree. The police discovered a water hose running from
the marijuana patch through a culvert under SR78 and onto Wright’s property. Viewing that fact
through the “practical, common-sense” lens as required by Gates, the only reasonable conclusion
is that Wright or someone at his house was providing water through the hose to cultivate the
marijuana plants in the national forest. The mere fact that the hose was not connected to a water
source at the exact instant the police discovered it is irrelevant. The water hose was clearly placed
in a specific route to transport water to the marijuana plants in violation of the law. Therefore, we
conclude that the hose itself is sufficient to establish the required nexus between the illegal activity
and the place to be searched.1 Thus, the district court erred in determining that the false statement
required the search warrant to be voided.
B. The Material Omission
The district court also found that Sedwick omitted from the affidavit the material fact that
he and Hallowell had already entered Wright’s property and that several of the observations noted
in the affidavit were discovered during this pre-warrant search. Central to the district court’s
1
Wright relies in his brief on the fact that Sedwick did not believe the hose by itself was
sufficient to establish probable cause. Resp. Br. at 22. In his testimony, Sedwick stated that he
entered the property and followed the hose to its end because he did not believe he had sufficient
evidence to obtain a search warrant. J.A. at 318 (Sedwick Test. at 81). The Supreme Court has
stated, however, that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996).
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reasoning was its determination that the pre-warrant search was an unconstitutional search of the
curtilage of Wright’s residence. The government disputes this conclusion and argues that the
officers’ actions were limited to the open fields of the property and therefore, not a violation of the
Fourth Amendment. We need not reach the curtilage question, however, because assuming
arguendo that the officers entered the curtilage of Wright’s residence without a warrant, we hold that
including the omitted information in the search warrant affidavit is insufficient to dispel probable
cause to search the property.
We have stated that a Franks challenge is appropriate where “the affiant engaged in
deliberate or reckless disregard of the truth in omitting the information from the affidavit.” United
States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001), cert. denied, 535 U.S. 1026 (2002). In this
case, Sedwick neglected to include in the affidavit that several of the observations were discovered
during a pre-warrant search of the property. Specifically, Sedwick included two discovered facts:
that “[t]he pond is approximately 50 yards from the above residence on the above property;” and that
“[s]ix more marijuana plants were located in the garden of Wright’s residence of 7840 SR 78.” J.A.
at 30 (Search Warrant Aff.). After the assistant county prosecutor reviewed the affidavit, she added
two additional statements to the affidavit: “[t]he six plants growing in the garden of 7840 are within
the curtilage of the residence;” and “[c]urtilage includes mowed property of the residence and the
garden and the pond.” J.A. at 30 (Search Warrant Aff.). Citing the county prosecutor’s language,
the district court held that even if Sedwick had initially simply neglected to include that he and
Hallowell had already searched Wright’s property, failure to include that fact after the county
prosecutor added those statements “was, at a minimum, reckless.” J.A. at 231 (Dist. Ct. Mem. &
Order at 26). We agree. Having been advised by the county prosecutor that the areas which he
entered were constitutionally protected, Sedwick should have informed the state-court judge that
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information contained in the affidavit was discovered during what the prosecutor believed was an
unconstitutional search. Failure to do so was at least a reckless omission of a material fact.
We have stated that if a defendant demonstrates “that the government affiant engaged in
‘deliberate falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit,
the court must then consider the affidavit including the omitted portions and determine whether
probable cause still exists.” Atkin, 107 F.3d at 1217. In this case, if Sedwick had included the fact
that he and Hallowell had entered the curtilage of Wright’s residence without a warrant, the district
court held that the state-court judge would have concluded that the warrant affidavit was tainted by
an unconstitutional search. We have stated, however, that the mere fact that an affidavit contains
facts gained through an illegal search does not necessarily require that the search warrant be voided.
United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005). Similar to the analysis in Franks, we
have held that where a warrant affidavit contains both tainted and untainted information, a court
must consider “the sufficiency of the untainted affidavit to see if probable cause exists without the
tainted information.” Id.; see also Karo v. United States, 468 U.S. 705, 719 (1984) (holding that “if
sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the
warrant was nevertheless valid”).
In this case, as we noted above, the search warrant affidavit contains information gained as
a result of the pre-warrant search of the property — specifically, the location of the pond and the
discovery of six more marijuana plants in the garden. The warrant affidavit also contains
information which was obtained prior to the pre-warrant search of the property. Most importantly,
the police discovered the water hose running from the marijuana patch on federal land through a
culvert under SR78 and onto Wright’s property. As we observed earlier, the water hose itself is
sufficient to establish “a fair probability that contraband or evidence of a crime will be found” on
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the property. Gates, 462 U.S. at 238. Therefore, we conclude, if Sedwick had included the omitted
facts, the state-court judge would have found probable cause to search Wright’s property without
considering the facts obtained in the pre-warrant search. Thus, the district court erred in determining
that the omission of the material fact required the search warrant to be voided.2
III. CONCLUSION
In sum, we conclude that even with the exclusion of the false information and inclusion of
the omitted material fact, the affidavit is sufficient to establish probable cause to search Wright’s
property. Therefore, the order of the district court suppressing the evidence collected pursuant to
the search of Wright’s residence is hereby REVERSED.
2
Given our conclusion that the untainted portion of the affidavit is sufficient to establish
probable cause to search Wright’s property, we further hold that the six marijuana plants which were
discovered during the pre-warrant search and seized during execution of the warrant are admissible
under the independent source rule. See Jenkins, 396 F.3d at 760 (noting that evidence is admissible
where “there was sufficient basis for the warrant that was wholly independent from any ‘tainted’
information”).
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