United States v. Popham

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0725n.06
Filed: October 10, 2007
No. 06-1437
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES
) DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT
) OF MICHIGAN
WILLIAM E. POPHAM, )
) OPINION
Defendant-Appellant. )
BEFORE: COLE and COOK, Circuit Judges; and FROST, District Judge.*
GREGORY L. FROST, District Judge. Appellant, William E. Popham, appeals the
denial of his motion to suppress in his underlying criminal proceedings. Popham argues that
there was insufficient probable cause to support a warrant that was issued for the search of his
property and the related seizure of marijuana and firearms because the supporting affidavit
detailed a prior impermissible search, a confidential tip was involved, affidavit information of the
trooper who obtained the warrant was false or made with a reckless disregard for the truth, and
the warrant was overbroad. For the reasons that follow, the Court AFFIRMS.
I. BACKGROUND
*
The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.
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Just prior to sunrise on September 12, 2004, Michigan State Police Trooper William
Veltman walked through the woods until he came to the fenced property of Appellant, William
E. Popham, and Popham’s uncle, Michael Crane. Veltman had received a tip from a confidential
informant that Popham and Crane were growing marijuana. He had previously been present
during a March 2000 execution of a search warrant on the same property, but after evidence
obtained during that search was suppressed, charges against Popham and Crane had been
dismissed.
Over the course of thirty to forty minutes, and from a distance of some 120 to 150 feet,
Veltman observed the shape of two marijuana plants growing inside a greenhouse on Popham’s
property. Veltman therefore applied for a search warrant the next day. In addition to detailing
his experience and background, Veltman’s affidavit described his observation of the property and
the two marijuana plants. Veltman obtained the search warrant that same day.
The warrant covered a mobile home located on Popham’s property, in addition to all
outbuildings, vehicles, and persons at the property. The warrant also provided for the seizure of
all controlled substances and firearms used in the trafficking of controlled substances. The
search warrant was executed on September 14, 2007 and led to the seizure of 143 marijuana
plants and several firearms, in addition to numerous possessions.
In a nine-count Indictment, Popham was charged with one count of manufacturing and
possessing with intent to manufacture marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), as well as eight counts of possession of an unregistered firearm in violation of 26
U.S.C. § 5861(d). Both he and Crane, a co-defendant, moved to suppress the evidence obtained
during the search. After the district court held an evidentiary hearing, the trial judge found that
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the warrant was overbroad in part but upheld the seizure of the marijuana plants and firearms.
Subsequent motions for reconsideration by Popham and Crane were unsuccessful.
Pursuant to a plea agreement that preserved his right to appeal the suppression decision,
Popham entered a Fed. R. Civ. P. 11(a)(2) conditional guilty plea to one count of manufacturing
marijuana in violation of 21 U.S.C. § 841(a)(1) and one count of possession of an unregistered
firearm in violation of 26 U.S.C. § 5861(d). The district court dismissed the remaining charges
and sentenced Popham to two concurrent terms of 84 months imprisonment, followed by four
years of supervised release. Popham timely appealed.
II. ANALYSIS
When reviewing the denial of a motion to suppress, this Court reviews a district court’s
findings of fact for clear error and its legal conclusions de novo. United States v. Tackett, 486
F.3d 230, 232 (6th Cir. 2007) (citing United States v. Davis, 430 F.3d 345, 351 (6th Cir. 2005)).
In conducting its review, the Court necessarily views the evidence in the light most likely to
support the district court’s decision. Id. (citing United States v. Rodriguez-Suazo, 346 F.3d 637,
643 (6th Cir. 2003)).
This Court has held that “ ‘[a]n issuing judge’s findings of probable cause should be
given great deference by the reviewing court and should not be reversed unless arbitrarily
exercised.’ ” United States v. Combs, 369 F.3d 925, 937-38 (6th Cir. 2004) (quoting United
States v. Miller, 314 F.3d 265, 268 (6th Cir.2002), cert. denied, 539 U.S. 908 (2003) (citations
omitted)). Thus, “[a]s long as the issuing judge had a ‘substantial basis’ for determining that a
search would uncover evidence of wrongdoing, the warrant must be upheld.” Id.
It is beyond question that the portion of Veltman’s affidavit that relied on a March 2000
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search pursuant to a flawed warrant could not present a substantial basis for probable cause.
Veltman’s affidavit did in fact reference that trooper’s knowledge of the execution of a 2000
search warrant, and it is true that this prior warrant lacked probable cause and resulted in
suppression. But as Popham notes on appeal, the trial court properly excised from its analysis
those portions of Veltman’s affidavit that referenced the 2000 search. Thus, the issue is whether
the untainted portions of Veltman’s affidavit present probable cause. See United States v.
Shamaeizadeh, 80 F.3d 1131, 1136 (6th Cir. 1996) (explaining that the remaining information in
a redacted affidavit can support probable cause).
Popham argues that the affidavit does not present a substantial basis for probable cause in
part because it relied upon an unnamed informant’s tip. The district court, however, also
understandably disregarded reliance on the informant. See United States v. Hammond, 351 F.3d
765, 772 (6th Cir. 2003) (holding that a tip that is “vague, not obviously reliable, and entirely
unsupported by any independent investigation” is, “on its own, . . . insufficient for establishing
probable cause”). Notably, the trial court also stated that Popham conceded that “Trooper
Veltman’s personal observations alone would establish probable cause to search the premises,
provided that they are true and not themselves tainted by illegal action.” (JA at 101.)
Given the district court’s actions, it is unclear why Popham devotes attention in his
briefing to how the foregoing aspects of Veltman’s affidavit cannot establish probable cause.
What is clear is that the trial court expressly credited Veltman’s personal observations–his
adequate independent investigation–and concluded that the trooper’s statements were neither
false nor reckless. On appeal, Popham essentially asks this Court to reject what he describes as
Veltman’s “incredible” and “unbelievable” testimony in light of evidence of reduced visibility.
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This Court has previously explained that “[a] factual finding will only be clearly
erroneous when, although there may be evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.” United
States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004). To reach such a conclusion here would
require the Court to credit Popham’s evidence while disbelieving Veltman’s testimony. But this
Court is not in the business of such unwarranted second-guessing of a trial court’s acceptance or
rejection of testimony.
The record reflects Veltman’s testimony that, with some admitted difficulty, he observed
the marijuana plants. The record also reflects Popham’s presentation of evidence intended to
persuade the district court that such observation was either impossible or so unlikely so as to
constitute a reckless conclusion. A district court, which is in the best position to judge
credibility, is entitled to credit the testimony of one witness over another. United States v.
Foster, 376 F.3d 577, 584 (6th Cir. 2004). A reviewing court must accord great deference to
such credibility determinations. Id. Thus, recognizing the district court’s latitude in evaluating
the veracity and difficulty of Veltman’s asserted observations, this Court can only conclude that
the evidence taken as a whole supports the trial court’s finding that the experienced and trained
trooper had indeed personally observed marijuana plants prior to obtaining the warrant. This
finding was not clearly erroneous so as to require reversal. Veltman’s observations, standing
alone, amount to probable cause.
Popham’s argument that the scope of the search and seizure compels suppression
similarly fails. The court below upheld the warrant’s description of the places to be searched, but
held that portions of the warrant describing the items to be seized were flawed. Popham argues
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that by covering the structures beyond a single greenhouse, the warrant was impermissibly broad
in the scope of the search. He also argues that the valid part of the search warrant’s items to be
seized was so insignificant that suppression of all of the evidence seized was required.
The scope of the warrant as to the places to be searched was not overly broad. As the
government argues in its brief, the context of the search determines the scope of the search.
Thus, as Popham points out, quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987), it is illogical
to search an upstairs bedroom in connection with a stolen lawnmower that is likely in a garage.
In this case, however, the fact that there were three makeshift greenhouses on the property, one of
which included two visible eight-feet-tall marijuana plants, provides probable cause to believe
that the defendant is in the business of growing and selling marijuana. Accordingly, it is logical
that evidence of a marijuana business (e.g., weapons, financial documents, etc.) would be found
in more than one structure on the property, including the residence. In short, because there was
probable cause to believe Popham was running a marijuana business, the scope of the search
properly included the other structures within the curtilage.
Finally, although the portion of the search warrant that authorized the seizure of “[a]ny
and all . . . items of value” that were proceeds of or used to facilitate Popham’s drug trafficking
was overbroad, the appropriate remedy is just what occurred in the district court: severance of the
overbroad provisions from those provisions that are of sufficient specificity. See United States v.
Ford, 184 F.3d 566, 578 (6th Cir. 1999) (“[Defendants] argue that since the warrant was
overbroad, all the evidence seized under it should be suppressed. To the contrary, the remedy for
an overbroad warrant is to sever the overbroad portions of the warrant from those portions that
are sufficiently particular.” (citing United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir.),
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cert. denied, 502 U.S. 1008 (1991))). There are no distinguishing factors present here to compel
departing from this settled Circuit precedent.
III. CONCLUSION
The trooper’s affidavit underlying the search warrant contained untainted evidence that
the affiant had personally observed marijuana. Because there is no basis for overturning this
credited testimony, the affidavit presented probable cause supporting the issuance of the warrant.
That warrant also properly permitted the search of all structures on the property, and the
appropriate remedy for an for an overbroad warrant is to limit the warrant to those portions that
are sufficiently particular. Accordingly, the Court AFFIRMS.
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