United States v. Lindsey ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES oF AMERICA ) ii::a:».;at.r errata
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v. )
) Criminal No. 08-034 (RCL)
RICKY D. LINDSEY, )
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Defendant. )
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MEMoRANDUM oP1N1oN
I. INTRODUCTION
Now before the Court is the defendant’s motion [l 8] to suppress tangible evidence. The
defendant’s motion to suppress his statement was already granted during the motions hearing.
Upon consideration of the motion, the supplement [22], the opposition [28], and the arguments
and evidence introduced at the December 2, 2008 motions hearing, the defendant’s motion will
be GRANTED and the evidence obtained by the government during the February 14, 2008 search
will be suppressed.
II. FACTUAL BACKGROUND
Sometime in 2006, the Metropolitan Police Department ("MPD") obtained photographs
in connection with a child abuse proceeding. The photographs depict an adult placing a Glock
pistol and a Tec-9 type assault pistol in a small child’s hands, a child of perhaps one or two years
old. An MPD firearms expert concluded that the guns in the photographs were real. One
photograph also shows the child chewing on a roll of money. The MPD determined that the
adult in the picture was Timothy Johnson and also noted that the photographs show a blue couch
and blue wall in the background. The MPD also determined that Timothy Johnson, the adult in
the picture, was the child’s father. As a result of the photographs and other information, the
MPD executed a warrant at the known residence of Timothy Johnson on August 24, 2006. The
detectives recovered an SKS Assault Rifle and a box of .45 caliber ammunition, but did not
recover the Glock pistol or Tec-9 assault weapon.
Sometime after the August 24, 2006 search, Detective Knight with the MPD took over
the case. She interviewed the mother of the child in the photographs, who told her that she
believed the photographs were taken in January or February of 2006. The mother of the child
also stated that she believed the photographs were taken at the residence of Ricky Lindsey. On
August 9, 2007, Detective Knight went to Ricky Lindsey’s residence at 4645 A Street S.E., to
determine whether his residence was the one shown in the photographs. She entered with
consent and determined that the couch and wall resembled the couch and wall in the
photographs. Accordingly, she spoke with Assistant United States Attomey Rubenstein, who
declined to give his approval for her to apply for a search warrant for the residence of Ricky
Lindsey. Detective Knight testified at the motions hearing that the reason AUSA Rubenstein told
her not to apply for a search warrant was because by August 2007 Timothy Johnson, the
individual shown possessing the firearms in the photographs, had already been arrested for
another crime. On cross-examination, Detective Knight also acknowledged that Assistant United
States Attomeys Connor and Higashi told her that it would not be possible to get a warrant
because too much time had passed since the photographs had been taken.
Meanwhile, the FBI had been conducting a separate, parallel investigation of Timothy
Johnson. On November 29, 2007, Special Agent Sparks with the FBI had executed a search
warrant on another known residence of Timothy Johnson at 451] B Street, S.E., #l0l. That
search recovered over 100 grams of PCP, over a pound of marijuana, crack cocaine, 24 grams of
heroin, a .380 caliber pistol, .45 caliber ammunition, and body armor. Johnson was taken into
custody at that time. However, the Glock pistol and Tec-9 pistol that were in the photographs
were not recovered.
At some point following the November 29, 2007 search, Special Agent Sparks learned of
the parallel investigation of Timothy Johnson that the MPD had conducted. He also leamed
about the photographs of Johnson and the child and the visit that the MPD had made to Lindsey’s
residence in August 2007 to determine that the couch and wall in Lindsey’s house matched the
house and wall in the photographs. He knew that the guns in the photographs had not yet been
recovered and that the photographs were probably taken at the residence of Ricky Lindsey. On
February 7, 2008, therefore, he decided to apply for a search warrant of 4645 A Street S.E. His
affidavit in support of the warrant included most of the relevant facts regarding the MPD’s
investigation but omitted the date when the photographs depicting illegal weapons in Lindsey’s
home were taken. Agent Sparks testified at the motions hearing that he did not speak with
Detective Knight from the MPD about her investigation, but he apparently learned of many of the
details of the previous investigation from AUSAs Rubenstein and Jackson, who ultimately
reviewed and approved his affidavit. The magistrate judge issued a search warrant on the basis
of Sparks’ affidavit. During the ensuing search of 4645 A Street, S.E., the FBI recovered a 9mm
UZI sub-machine gun and 625 grams of powder cocaine from Lindsey’s bedroom. Lindsey was
indicted and moved to suppress the evidence.
III. ANALYSIS
This case essentially presents two issues: (l) did the search warrant for Lindsey’s
residence issue upon probable cause?; and (2) if it did not, did the officers gather evidence in
objectively reasonable reliance on the Warrant?
A. There was not Pr0bable Cause to Issue the Search Warrant because the
Evidence was Stale
The Fourth Amendment to the United States Constitution states: "The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." When
evidence is obtained in violation of the Fourth Amendment, the prosecution is barred from using
that evidence in its case-in-chief by operation of the exclusionary rule.‘ See e.g., United States v.
Dawkins, 17 F.3d 399, 407-408 (D.C. Cir. 1994).
To determine whether or not a warrant issued upon probable cause, a court must consider
the "totality of the circumstances" and give "great deference" to the magistrate. Illinoz's v. Gates,
462 U.S. 213, 236 (1983). However, the D.C. Circuit has made clear that stale evidence does not
provide the type of evidence that is sufficient to establish probable cause for issuing a warrant.
The D.C. Circuit visited the question of staleness in United States v. Webb, 255 F.3d 890‘The exclusionary rule is subject to exception when the "deterrence benefits" of the
exclusionary rule do not "outweigh its substantial social costs." Hudson v. Michigan, 546 U.S.
586, 592 (2006). See also Herrz'ng v. United States, 129 S. Ct. 695, 700 (2009).
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(D.C. Cir. 2001). In that case, a govemment informant engaged in a drug transaction in Webb’s
apartment. Ia’. at 904. However, the warrant did not issue until 109 days later. Although the
D.C. Circuit eventually affirmed the trial court’s denial of the motion to suppress on Leon good
faith grounds, it engaged in a discussion of "staleness." The Circuit stated that it found the
"issuance of this warrant troub1ing." Id. It also approvingly cited a previous case in which the
Circuit found no probable cause to issue a search warrant when documents were last seen in a
residence 107 days before the search warrant was issued. Id. Finally, the Circuit noted that
"Courts have been considerably more lenient in assessing the currency of information supporting
probable cause in the context of extended conspiracies than in the context of single-incident
crimes." Ia'. at 905.
On the basis of that law, the warrant here did not issue upon probable cause. Even if the
Court reads the affidavit as if the photographs that gave rise to the warrant were taken on August
9, 2007,2 the search warrant was not issued until approximately 178 days after this date. Not only
is this much longer than the 109 days in Webb, but this case involves a "single-incident crime,"3
which the Circuit has suggested it will not be lenient about with regard to staleness. Because the
photographs were the only evidence of criminal activity that was linked to the defendant or his
residence, and those photographs were stale, the warrant did not issue upon probable cause in this
zThis was the date that Detective Knight with the MPD visited Ricky Lindsey’s home to
determine whether the photographs were taken within Lindsey’s home. Therefore, the magistrate
judge may have assumed that the photographs were taken shortly before that date. The affidavit,
however, did not state when the photographs were taken_and the Court leamed during the
motions hearing that they were taken in early 2006.
3The photographs show the possession of illegal firearms in Lindsey’s home. Possession
of an illegal firearm is generally considered a single-incident crime. See United States v.
Hopkl``ns, 128 F. Supp. 2d l, 7-8 (D.D.C. 2000) (Lamberth, J.).
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case.
B. The Le0n Exception is Inapplicable
Nevertheless, the "exclusionary rule was adopted to deter unlawful searches by police,
not to punish the errors of magistrates and judges." Massachusetts v. Sheppard, 468 U.S. 981,
990 (l984). As a result, so long as the officer gathered evidence in objectively reasonable
reliance on a search warrant, the exclusionary rule does not apply. United States v. Leon, 468
U.S. 897, 922 (1984).
Of course, there are a few exceptions to the Leon principle, two of which are implicated
in the present case. First, suppression is an "appropriate remedy if the magistrate or judge in
issuing a warrant was misled by information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the truth." Leon, 468 U.S. at
923. This exception has also been held to apply to material omissions. United States v. Spencer,
530 F.3d 1003, 1007 (D.C. Cir. 2008). Second, suppression is appropriate if the warrant was "so
lacking in the indicia of probable cause as to render official belief in its existence entirely
unreasonable." Leon, 468 U.S. at 923.
1. Defendant Did Not Meet His Burden of Sh0wing that the Magistrate
was Intentionally Misled
The standard by which to analyze the first exception to Leon was discussed in F ranks v.
Delaware, 538 U.S. 152, 170 (1978). In that case, the Supreme Court said that to avail himself
of this exception, the defendant must "point out specifically the portion of the warrant affidavit
that is claimed to be false," and the defendant must establish "deliberate falsity or reckless
disregard of the truth . . . allegations of negligence or innocent mistake are insufficient." Id. The
defendant must establish his allegations by a preponderance of the evidence. Ia'. at 156.
In this case, while the defendant certainly raised the specter of impropriety, he failed to
meet his burden of demonstrating "deliberate falsity or reckless disregard of the truth."
Certainly, the affidavit is misleading. The affidavit does not disclose the date that the critical
photographs were taken, but it reads as if they were taken shortly before August 9, 2007. In
actuality, the photographs were taken in early 2006. However, the defendant did not establish
why the date was left out of the affidavit, let alone establish the "deliberate falsity" required by
Leon. Counsel for the govemment stated that the date "should have been included"; however,
that gives no insight into whether the date was left out as a result of a mistake or an intentional
choice. The Assistant United States Attomeys who relayed the information about the MPD’s
parallel investigation of Timothy Johnson to Sparks may not have told him how old the
photographs were. The lack of any evidence as to the deliberate falsity of the affidavit, combined
with the fact that defendant’s counsel did not even argue F ranks during the hearing means that
the defendant fell short of his burden under F ranks to invalidate a warrant.‘l See United States v.
Gaston, 357 F.3d 77, 81 (D.C. Cir. 2004) (stating that defendants offered no reason to believe
that the ATF agent knew that information about defendant’s previous convictions included in the
affidavit were false. The defendants never "formally moved for an evidentiary hearing under
Franks, or even attempted to make the sort of showing that would have entitled them to one").
4 One circuit has suggested that it will make an inference of recklessness if the material
omitted from a search warrant affidavit is "clearly critical" to the finding of probable cause.
United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). But see United States v. Colkley, 899
F.2d 297, 301 (4th Cir. 1990) (expressing disapproval of the "clearly critical" approach because
the F ranks inquiry has two components_intentionality and materiality). The D.C. Circuit has
not yet weighed in on whether a court can make an inference of recklessness if an affiant omits
material that is "clearly critical" to the finding of probable cause.
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2. The Affidavit was so Lacking in Probable Cause as to Render
Reliance on it Unreasonable
The final issue that must be addressed is whether Leon does not apply because the search
warrant that was issued in this case was "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923. A mistake is
obvious if "a reasonably well trained officer would have known that the search was illegal in
light of all of the circumstances." Herring v. United States, 129 S. Ct. 695, 703 (2009) (citing
Leon, 468 U.S. at 922, n.23).
ln Leon, the key piece of evidence that was used to obtain a search warrant for Leon’s
residence was an inforrnant’s tip that he had seen drugs in the residence. Id. at 901. However,
the tip was five months old. Nonetheless, the magistrate judge issued a search warrant for Leon’s
residence and the officers discovered contraband in the ensuing search. Id. at 902. The Supreme
Court assumed that the warrant did not issue upon probable cause but still held that the evidence
obtained in the search should not be excluded because the police obtained evidence in objectively
reasonable reliance on the warrant. Ia’. at 906.
This case is similar in that the key piece of evidence-the photographs in Lindsey’s
residence_were stale. The magistrate approved a search warrant based on the stale evidence,
and incriminating evidence was uncovered in the ensuing search. However, Leon is also
different in some important ways. First, in Leon, the officers’ affidavit contained a statement
from an informant in which he stated that he saw drugs in the residence five months before the
execution of the search. In this case, the affidavit does not actually state when the criminal
activity was observed (z``.e. , when the photographs were taken); it only states that the couch and
wall in Lindsey’s home appeared to match the photographs when the MPD visited Lindsey’s
home 6 months prior to the search. Moreover, in Leon, the officers had supplemented their
informant’s statement with numerous observations. Although the informant observed drugs five
months prior to the search, the corroborating evidence was much more recent (less than a month
old). In this case, the corroborating evidence (the fact that the couch and wall matched the
photographs) was obtained six months before the search; the date that the photographs were
taken was approximately two years earlier_this fact was not disclosed in the affidavit. Finally,
Leon involved a drug conspiracy; as discussed below, courts have been less lenient with regard to
staleness when dealing with observation of a single-incident crime such as illegal possession of a
weapon.
These differences lead the Court to conclude that in contrast to the officers in Leon, an
objectively reasonable officer could not have relied on the warrant in this case. The first problem
that should have alerted the officers that probable cause did not exist is that the affidavit in
support of the warrant did not include a date for when the critical evidence was gathered. See
United States v. Huggins, 733 F. Supp. 445, 447-48 (D.D.C. 1990) (Revercomb, J.) (suppressing
evidence when affidavit in support of search warrant failed to state the time and date of the
critical controlled purchase because there was no way for a judicial officer to determine whether
the information was stale). The second fact that should have alerted an objectively reasonable
officer that probable cause did not exist is the fact that the police were searching for
firearms~extremely portable objects-that were in the defendant’s residence5 approximately
SThere was no evidence that Lindsey ever possessed the firearms depicted in the
photographs--the photographs show only the child and Timothy Johnson.
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two years before the search was executed.° See United States v. Johnson, 332 F. Supp. 2d 35, 39
(D.D.C. 2004) (Friedman, J.) (suppressing evidence despite the magistrate’s approval of the
search warrant because there was no explanation for why the officers would "believe[] they
would find [defendant’s] gun or other evidence incriminating [defendant] at that residence nearly
four weeks after the July 12 evidence and even longer after there was any evidence of [the
defendant’s] connection to the address in question"); United States v. Hopkins, 128 F. Supp. 2d
1, 7 (D.D.C. 2000) (Lamberth, J.) (stating that "[w]hile drug dealers usually require a place to
store their inventory, gun owners can (and often do) carry their entire artillery_often a single
pistol_with them at any time. People who have a gun rarely need to make repeated purchases of
a gun, and rarely run a gun distribution network out of their home").
As a result, this case is much different from United States v. Webb, 255 F.3d 890, 905
(D.C. Cir. 2001), in which the D.C. Circuit upheld a search on Leon good faith grounds despite
its suggestion that the critical three month old evidence was stale. ln that case, "it would not
necessarily have been unreasonable for an officer to conclude that a longtime drug dealer, whose
most recent known deal had occurred three months earlier, would still retain papers permitting
him to get back in touch with his customers or . . . his supplier."7 This case, however, is more
like Schoeneman v. United States, 317 F.2d 173 (D.C. Cir. 1963), a pre-Leon case that was cited
approvingly by the D.C. Circuit in Webb. In that case, the evidence "consisted solely of an
"Agent Sparks, the affiant, may not have been aware of precisely how old the photographs
were. However, he knew they were at least six months old because his affidavit mentions the
MPD’s August 2007 entry into Lindsey’s residence based on the photographs.
7Of course, this case is also different in that the date that the critical evidence was
gathered was not included in the affidavit. Also, the evidence used in support of the search
warrant in this case was much staler than that in Webb.
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informant’s statement that he had seen classified documents in the defendant’s home on [a]
single occasion," approximately three months before the search was executed. Webb, 255 F.3d at
905. Accordingly, the Circuit in Schoeneman suppressed the evidence because the magistrate
should not rely on affidavits which "have sole relation to a different time." Schoeneman, 317
F.2d at 177 (citing Sgro v. United States, 287 U.S. 206, 211 (1932)).
The Court also notes that agent Sparks, the affiant, has extensive law enforcement
knowledge and experience, which is a factor to be taken into account when determining whether
an officer would know if a search was illegal despite the magistrate’s authorization. Herrz``ng v.
United States, 129 S. Ct. 695, 703 (2009). As noted in his materials supporting the search
warrant application, Agent Sparks has been employed with the FBI since 1990 and has been the
lead case agent investigating several long-terrn, gang-related enterprises. Indeed, this Court has
had the opportunity to observe Agent Sparks’ generally exceptional work. However, under the
Supreme Court’s ‘objective’ test that takes into account an officer’s knowledge and experience,
the fact that Agent Sparks is a well-trained and exceptional agent also weighs toward the
conclusion that he should have known that the search was illegal despite the magistrate’s
authorization.
The totality of the circumstances lead the Court to conclude that the warrant was so
lacking in the indicia of probable cause that an objectively reasonable officer should not have
relied on it.g The critical evidence used in support of the search warrant was gathered
8 Sparks does not shoulder all the blame for the affidavit that was submitted in this case.
lt is unclear why the Assistant United States Attomeys approved his affidavit. The attorneys
were aware of the MPD investigation and knew how old the photographs were. The photographs
were stale under law established in this Circuit at the time. See supra. In addition, a couple of
the Assistant United States Attomeys had already advised the MPD not to apply for a warrant
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approximately two years before the search, the affidavit did not include the date when the critical
evidence was gathered, the affidavit purported to support a search for a gun-a portable
obj ect-long after the gun was observed in the photograph, and the defendant was never actually
observed with the gun. The leon good-faith exception is inapplicable in this case.
VI. CONCLUSION
There was not probable cause to issue a warrant for the residence of Ricky Lindsey
because the evidence used to obtain the warrant was stale. The Leon good-faith exception is
inapplicable because the warrant was lacking in the indicia of probable cause such that an
objectively reasonable officer should not have relied on it. lt is therefore
ORDERED that the defendant’s motion to suppress tangible evidence [18] obtained
during the February 14, 2008 search will be GRANTED.
A separate order shall issue this date.
SO ORDERED.
@,A C_ jarwa »/t-m
Chief Judge Royce C. Lamberth Date
based on the same underlying facts because the man shown in the photographs had already been
arrested for another crime and because too much time had passed since the photographs were
taken. At the very least, the Court agrees with the government’s statement at the motions
hearing that the Assistant United States Attomeys should have ensured that the date that the
critical evidence was gathered was included in Sparks’ affidavit before approving it for
submission to the magistrate.
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