||FOURTH CIRCUIT SUPPRESSES EVIDENCE FOUND PURSUANT TO SEARCH WARRANT BASED ON A TRASH PULL

FOURTH CIRCUIT SUPPRESSES EVIDENCE FOUND PURSUANT TO SEARCH WARRANT BASED ON A TRASH PULL

On December 14, 2018, the Fourth Circuit Court of Appeals decided the United States v. Lyles[i], in which the court examined whether the discovery of three marijuana stems in trash bags in front of Lyles home was sufficient probable cause to support a search warrant.   The facts of Lyles, taken directly from the case, are as follows:

Prince George’s County Police, during an investigation unrelated to the present case, saw Lyles’s phone number in a homicide victim’s cell phone. They suspected that defendant might be relevant to that investigation. But it was only a hunch. So the police searched four trash bags found at a curb near Lyles’s home and applied for a warrant to search Lyles’s home based on what they found. The application’s factual basis is quoted below:

During the month of January, 2015, members of the Prince George’s County Police Department became involved in an investigation of the residence located at 9010 Ridgewood Dr., Ft. Washington, Prince George’s County Maryland 20744. Investigators had become aware of possible connections between the residence, its occupants and unlawful activities.
Pursuant to this investigation, on January 5th, 2014 [sic] Your Affiant along with Sergeant Logan #2528 observed four large green plastic bags were abandoned on the curb side of 9010 Ridgewood Dr., Ft. Washington, Prince George’s County Maryland 20744. Your Affiant along with Sergeant Logan #2528 removed the four green plastic bags from the curb and upon inspection your Affiant found three unknown type plant stems, three empty packs of rolling papers and one document addressed to 9010 Ridgewood Dr., Ft. Washington, Prince George’s County Maryland 20744. The stems were taken to the Prince George’s County Drug Lab where they tested positive for marijuana by a forensic chemist.
That upon the above described information and your Affiant’s knowledge, training and experience, your Affiant believes that there are controlled dangerous substances, Marijuana, and handguns being stored, used and/or sold at 9010 Ridgewood Dr., Ft. Washington, Prince George’s County Maryland 20744. J.A. 24-25 (emphasis omitted).

The affidavit included only these limited facts and general averments that marijuana is often stored in secure locations and disposed of nearby. It sought to search the home for evidence of possession of controlled substances, possession with intent to distribute controlled substances, and money laundering. See Md. Code Ann., Crim. Law §§ 5-601, 5-602, and 5-623 (West 2018). The application provided the magistrate with no facts about the earlier, unrelated investigation involving the recovered phone. It did not identify a homeowner or name the defendant.

The magistrate judge, however, granted a warrant to search defendant’s home in toto. The warrant provided broad permissions to search the home and “any and all persons suspected to be involved in said illegal activities.” J.A. 28. It authorized the police to seize essentially anything in the home, including cell phones, jewelry, records, diaries, and firearms. The police subsequently found four handguns, ammunition, marijuana, and drug paraphernalia in defendant’s house.[ii]

Lyles was subsequently indicted under federal law for being a convicted felon in possession of firearms.  He filed a motion to suppress the evidence, and the district court granted the motion.  The government appealed the grant of the motion to suppress to the Fourth Circuit Court of Appeals.

The court then set out to determine if finding three marijuana stems in a garbage bag on the curb in front of Lyles residence along with three empty packs of rolling papers and a piece of his mail amounted to probable cause to search his home and seize his records, containers, digital evidence, computers, financial records, money, phones, and all persons and vehicles on his property, among other things.

At the outset, the court noted the legal principles involved regarding the issuance of a search warrant based on probable cause.  The court stated

Probable cause determinations require a “practical, common-sense decision,” based on sworn facts, whether “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). As always, “the ultimate touchstone of the Fourth Amendment is reasonableness.” Fernandez, 571 U.S. at 298 (internal quotation marks omitted).

Since a state magistrate judge issued the challenged warrant, we ask whether the magistrate judge had a “substantial basis” for finding probable cause. Gates, 462 U.S. at 238-39. When evaluating whether the magistrate had a substantial basis to find probable cause, we “may not go beyond the information actually presented to the magistrate during the warrant application process.” Owens ex rel. Owens v. Lott, 372 F.3d 267, 277 (4th Cir. 2004).[iii] [emphasis added]

In addition to the constitutional principles above, the court also examined Fourth Circuit precedent related to trash pulls.  The court first discussed the United States v. Gary.[iv]  In Gary, the police received an anonymous tip that the defendant was selling drugs from his home.  To corroborate the tip, the police obtained two garbage bags from the trashcans associated with that residence.  The bags contained plastic bags with heroin residue, foil and baggies with cut corners which was consistent with packaging and distribution of narcotics.  The court of appeals distinguished Lyles’ case from Gary stating that Lyle’s case was not proceeded with a tip that drug sales were taking place in the residence.

The court also examined the United States v. Montieth.[v]  Regarding Montieth, the court stated

[W]e approved a search warrant issued after an ATF agent informed police that the defendant possessed “a sizeable amount of marijuana.” 662 F.3d at 664. The officers confirmed Montieth’s address, and found a trash can containing two bills addressed to defendant and “extensive evidence of marijuana trafficking, including: (1) green saran wrap with suspected marijuana residue; (2) separate pieces of PVC pipe wrap (often used to package marijuana) with suspected marijuana residue; (3) pieces of green wrapper with brown tape with suspected marijuana residue; (4) several burnt marijuana cigarettes; (5) clear plastic baggies; and (6) marijuana stems.” Id. The application also detailed Montieth’s prior drug offenses.[vi]

The court distinguished Montieth from Lyles and noted that, in Lyles, the police did not have a specific allegation relating to drugs at his home, evidence of past drug convictions, or evidence of extensive drug trafficking.

When compared to the cases above, and considering the extensive search authority granted by the warrant, the court of appeals, in the case at hand, held that the evidence of three stems of marijuana, three empty packs of rolling papers and piece of mail was too sparse to provide probable cause for a search of Lyle’s home.  Regarding Lyles’ case, the court stated

This was a single trash pull, and thus one less likely to reveal evidence of recurrent or ongoing activity. And from that one trash pull, as defendant argues, “[t]he tiny quantity of discarded residue gives no indication of how long ago marijuana may have been consumed in the home.” This case is almost singular in the sparseness of evidence pulled in one instance from the trash itself and the absence of other evidence to corroborate even that. The affidavit thus did not provide a substantial basis for the magistrate to find probable cause to search the home for evidence of marijuana possession.[vii]

The court also address the extensive nature of the search authorized by the search warrant.  The warrant did not simply authorize a search for marijuana, but rather contained the detail present in a search warrant of a suspected drug dealer’s home.  The court detailed the items authorized to be seized pursuant to the warrant as follows:

1) Marijuana and any and all controlled dangerous substances, in whatever form, condition or however packaged, and to seize such paraphernalia that is used in the administration, preparation, and distribution or in conjunction with said illegal activities.

2) Any books, records, and documents relating to the acquisition, possession or distribution of said controlled dangerous substances.

3) Any and all safes, locked boxes and receptacles that could contain any other items described in this warrant and to seize all contents which pertain to the said illegal activities.

4) Any and all indicia of occupancy, residency, rental, and/or ownership of the premises described herein including, but not limited to, utility and telephone bills, canceled envelopes, rental, purchase or lease agreements, keys, photographs, clothing and personal toiletries.

5) To search any and all persons suspected to be involved in said illegal activities.

6) To view all non-commercially produced video recordings, digital video discs, and any other analog or digital media.

Page 11

7) Any electronic equipment, such as computers, external hard drives, facsimile machines, digital pagers, cellular telephones, answering machines, surveillance equipment, and related manuals used to generate, record, and/or store the information described in this exhibit, and the contents therein. Additionally, computer software, tapes and discs, audio and video tapes and/or discs, and the contents therein, containing the information generated by the aforementioned electronic equipment and used in the aforementioned violations relating to the transportation, distribution, ordering and purchasing of controlled dangerous substances. Due to files that are password and/or encryption protected and due to the extensive time involved in data recovery, this search and seizure warrant authorizes the removal and examination of such electronic devices in a laboratory setting by trained personnel.

8) Any and all appointment books, diaries, calendars, financial records, work schedules, computer records, or other documents that detail the aforementioned violations or individuals involved in the aforementioned violations.

9) Any and all financial documents that are related to the placement of monies used in the aforementioned violations.

10) Any and all photographs, including still photos, negatives, video recordings, films, undeveloped film, external memory sticks, cards and discs and the content therein, slides, in particular photographs of co-conspirators, of assets and/or controlled dangerous substances.

11) Currency, precious metals, jewelry, and financial instruments, including stocks and bonds.

12) Firearms, including but not limited to: handguns, pistols, revolvers, rifles, shotguns, machine guns, and any and all other weapons, as well as ammunition.

13) To search any and all vehicles parked on or about the property.[viii]

The court was very critical of the broad nature of this search warrant absent probable cause that this was search warrant related to drug dealing.  Further, the court noted that in paragraph 7 above, the warrant authorized the search and seizure of cellular phones.  The court stated

The Supreme Court has recognized that “cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Riley v. California, 134 S. Ct. 2473, 2488-89 (2014). But cell phones also carry more information that can be essential to an investigation than do cigarette packs, wallets, or purses. We need not explore that tension here, as the warrant application lacked any nexus between cell phones and marijuana possession.[ix] [emphasis added]

The court of appeals also discussed the fact that a search must be proportional when comparing the justification for the search and the intrusiveness of the search in order to be “reasonable” under the Fourth Amendment.  It was noted that, under Maryland law, first time possession of less than 10 grams of marijuana is a civil infraction and subjects a person to a fine not to exceed $100.  Thus, although the crime was minor, the court noted that the search warrant authorized a search that was “anything but minor.”[x]

Lastly, the court considered whether the “good faith” exception should apply and thus prevent the suppression of evidence in this case since the officers relied, in good faith, on the search warrant that was issued by a magistrate.  Further, prior to presenting the affidavit to the magistrate the warrant affidavit was reviewed by the officer’s supervisor and a prosecuting attorney.  The good faith exception is intended to prevent the suppression of evidence where it does not accomplish the purpose of the exclusionary rule, which is to deter improper police behavior.  As such, when officers correctly go to a magistrate, present truthful facts, and obtain a warrant, the officers act properly and are engaged in improper behavior.

However, when considering the good faith exception in this case, the court of appeals stated that the good faith exception is ultimately an objective standard and while the officer that obtained the search warrant had a subjective (personal belief) he was complying with the constitution, when viewed objectively, the “scant” evidence in Lyles’ case cannot justify the “indiscriminate rummaging” through his home.[xi]

As such, the court of appeals affirmed the grant of the motion to suppress.

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Citations

[i] No. 17-4787 (4th Cir. Decided December 14, 2018)

[ii] Id. at 3-4

[iii] Id. at 5

[iv] 528 F.3d 324 (4th Cir. 2008).

[v] 662 F.3d 660 (4th Cir. 2011)

[vi] Lyles at 8-9

[vii] Id. at 10

[viii] Id. at 10-11

[ix] Id. at 12

[x] Id. at 13

[xi] Id. at 15

By |2019-07-23T15:00:07+00:00July 23rd, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.