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United States v. White

United States District Court, E.D. Louisiana

February 7, 2017

UNITED STATES
v.
JERMAINE WHITE, ANTHONY BOGEN

         SECTION “R” (4)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Before the Court are motions to suppress evidence filed by defendants Jermaine White[1] and Anthony Bogen.[2] For the following reasons, the motions are DENIED.

         I. BACKGROUND

         Jermaine White and Anthony Bogen were arrested on August 26, 2015. According to the search warrants executed before their arrest, [3] on August 25, 2015, United States Postal Inspector Brian Cazalot noticed a package in which the sender had waived the signature requirement and instructed the carrier to the leave the package at the address if there was no response at the door.[4] Cazalot investigated further and determined that the sender's name and address were fictitious and that the addressee was not associated with the address.[5] Based on his experience, Cazalot recognized that these characteristics are often associated with packages containing drugs.[6]Suspicious, Cazalot had a United States Postal Inspection Service drug detection dog, “Boris, ” sniff the package.[7] Boris alerted to the presence of drugs.[8] The next day, after Postal Inspector Christopher Stifflemire discovered a package addressed to a different residence that shared the same characteristics, drug inspection dog “Spike” sniffed the package and also alerted to drugs.[9]

         Cazalot and Stifflemire conveyed this information regarding both packages in affidavits to Magistrate Judge Knowles.[10] Judge Knowles then signed federal search warrants authorizing the search of both packages.[11]Methamphetamine was found in both packages. Subsequently, Trooper Troy Landry of the Louisiana State Police sought and obtained state search warrants for the residences to which the packages were addressed.[12]

         In conjunction with local law enforcement and the Drug Enforcement Administration, Postal Inspector Cazalot conducted a controlled delivery at the address on the first package.[13] When White received the package, he was arrested. In addition to the methamphetamine, police uncovered marijuana and firearms at White's residence.[14] The police then went to the address listed on the second package, and executed the state search warrant at the residence.[15] After determining that Anthony Bogen was not present, the police went to his place of employment where Bogen was arrested.[16]

         According to the police reports from the Louisiana State Police and the Drug Enforcement Administration, White admitted to the Louisiana State Police officers that the package was for him and that the guns were his.[17]Additionally, after his arrest, Bogen admitted that he was working in concert with White, was to be compensated monetarily for allowing the second package to be sent to his address, and that he was aware the package contained drugs.[18]

         White and Bogen were indicted for conspiracy to distribute and to possess with the intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), and 846, as well as knowingly and intentionally using a communication facility, the United States Postal Service, to commit their crimes in violation of 21 U.S.C. § 843(b).[19] White was also indicted for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(1)(A).[20]

         On June 10, 2016, Bogen moved to suppress all evidence obtained from the search of the two packages and statements made by Bogen to law enforcement after his arrest.[21] On June 15, 2016, White incorporated Bogen's motion and moved to suppress all evidence obtained from the search of his residence.[22] On June 28, 2016, the government responded to both motions in a consolidated memorandum in opposition.[23] Both White and Bogen replied.[24]

         II. LEGAL STANDARD

         Defendants' motions to suppress assert that evidence was obtained in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution provides, “[t]he 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.” U.S. Const. amend. IV. The Fourth Amendment “requires adherence to judicial processes, ” and searches conducted without warrants “are per se unreasonable under the Fourth Amendment.” Katz v. United States, 389 U.S. 347, 357 (1967).

         As the Fourth Amendment unambiguously states, there must be probable cause to obtain a search warrant. To support a finding of probable cause to issue a search warrant, an affiant must show “only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). The affidavit must also provide the judge “with sufficient reliable information from which he could reasonably conclude that the items sought in the warrant were probably at the location sought to be searched.” United States v. McKinney, 758 F.2d 1036, 1042 (5th Cir. 1985) (quoting United States v. Marbury, 732 F.2d 390, 395 (5th Cir. 1984)).

         “The probable cause standard is not defined by bright lines and rigid boundaries.” United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). The standard requires a magistrate to review the facts and circumstances of a case as a whole to make a common sense determination whether probable cause exists. See Gates, 462 U.S. at 238 (explaining that a magistrate should make “a practical, common-sense decision . . . .”); United States v. Dickey, 102 F.3d at 162 (“Probable cause is determined by a consideration of the totality of circumstances test.”); United States v. Peden, 891 F.2d 514, 518 (5th Cir. 1989) (“[A] magistrate ‘is simply to make a practical commonsense decision.”') (citations omitted).

         Probable cause is also required under the Fourth Amendment to make a warrantless arrest. See United States v. Ho, 94 F.3d 932, 935 (5th Cir. 1996) (citation omitted). A police officer has probable cause to arrest a person without a warrant when “the totality of facts and circumstances within a police officer's knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” See id. at 935-36 (citation omitted); see also United States v. Randall, 887 F.2d 1262, 1265-66 (5th Cir. 1989) (quoting Passman v. Blackburn, 652 F.2d 559, 564 (5th Cir.1981)). The arresting officers must know with “fair probability” that a crime occurred, and “‘fair probability' is something more than a bare suspicion, but need not reach the fifty percent mark.” United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999).

         Defendant Bogen also argues that he was not advised of his Miranda rights before he made incriminating statements to law enforcement. In Miranda v. Arizona, the Supreme Court held that before a suspect is subjected to custodial interrogation, law enforcement officers must inform the suspect of his right to remain silent and right to counsel. 384 U.S. 436, 471 (1966). “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. at 444. Statements made in violation of these requirements are not admissible in court. United States v. Ackerman, 704 F.2d 1344, 1348 (5th Cir. 1983).

         A suspect may waive his Miranda rights “provided the waiver is made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. An express written or oral waiver of the defendant's Miranda rights is not necessary to establish a valid waiver, as long as the circumstances demonstrate that the defendant voluntarily waived those rights. North Carolina v. Butler, 441 U.S. 369, 373 (1979). But, if a person being interrogated “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. The government has the burden of proving, by a preponderance of the evidence, that the defendant voluntarily waived his constitutional right against self-incrimination and that his statements were voluntary. United States v. Rico, 51 F.3d 495, 507 (5th Cir. 1995).

         III. DISCUSSION

         A. Search of the Packages

         Bogen argues, and White adopts the argument, that the search warrants for the packages were not supported by probable cause.[25] The government responds that the defendants lack standing to challenge the search of the packages, and even if they have standing, the warrants were valid.

         1. Standing

         The government argues that the defendants have forfeited their standing to challenge the search of the packages because they intentionally distanced themselves from the packages by using fictitious names.[26] While the government correctly points out that one must have a legitimate expectation of privacy in the place or object searched, see Rakas v. Illinois, 439 U.S. 128, 143 (1978), the government's reliance on United States v. Daniel, 982 F.2d 146 (5th Cir. 1993), is misplaced. Before Daniel, the Fifth Circuit reiterated in United States v. Villareal, 963 F.2d 770 (5th Cir. 1992), that individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names. 963 F.2d at 774 (citing United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981); United States v. Pierce, 959 F.2d 1297, 1303 n.11 (5th Cir. 1992)). Although Daniel subsequently suggested that the court “question[s]” whether a defendant would have a legitimate expectation of privacy in a package addressed to an alias when the alias was obviously part of a criminal scheme, 982 F.2d at 149, this was dicta and is not controlling. Further, as a general rule in the Fifth Circuit, “one panel may not overrule the decision of a prior panel . . . in the absence of an intervening contrary or superseding decision by [the] court sitting en banc or by the United States Supreme Court.” Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998). And, “where two previous holdings . . . conflict, the earlier opinion controls and is binding.” Id. (citation omitted). Because Villareal controls, the Daniel decision and the decisions of courts outside of this Circuit do not help the government.

         Even assuming arguendo that Daniel controlled, Daniel found it relevant that at trial, the defendant argued that the named recipient of the package was not an alias or a fictitious name, but a different person entirely. 982 F.2d at 149. This is not the situation here, where Bogen argues that he had a subjective expectation of privacy in the package that was objectively reasonable.[27] Cf. United States v. Thompson, No. 14-153, 2016 WL 3476714, at *4-6 (E.D. La. June 27, 2016) (finding defendant lacked standing to challenge search of package sent with and addressed to fictitious names because defendant not only never argued that he had a subjective expectation of privacy in the package but also would not concede that he even sent the package). The Court therefore finds that defendants have standing to challenge the search of the packages.

         2. Search of the packages

         Bogen and White argue that the searches of the packages violated the Fourth Amendment because the warrants were authorized without probable cause, and at a minimum, they are entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). For the reasons that follow, the Court finds exclusion is not warranted and that defendants are not entitled to an evidentiary hearing.

         a. Validity of search and the good-faith exception

         Defendants' motions to suppress argue that the basis for the search warrants signed by Magistrate Judge Knowles to search the packages “relied on excessively generic characteristics which cannot reasonably constitute a ‘profile' for narcotics smuggling, ”[28] and that the drug-detecting dogs' reliability was not established before Judge Knowles signed the warrants. Therefore, according to defendants, the warrants lacked probable cause.

         In considering a Fourth Amendment challenge to a seizure conducted pursuant to a search warrant, the Court must first determine whether the seizure falls within the good-faith exception to the exclusionary rule. See United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999) (citing United States v. Leon, 468 U.S. 897 (1984)). If the good-faith exception applies, that ends the inquiry, and the Court need not reach the question of probable cause. Id.

         If the exception does not apply, the court must analyze the magistrate judge's belief that probable cause existed. See United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000). A magistrate judge's determination on probable cause “is entitled to great deference, ” United States v. Brown, 941 F.2d 1300, 1302 (5th Cir. 1991) (citing Gates, 462 U.S. at 236 n.10), and a reviewing court “looks to see only whether a magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, ” Id. (citing Jones v. United States, 362 U.S. 257, 271 (1960)). Because the Court determines that the good faith exception applies, the Court need not address whether the Magistrate Judge had a substantial basis to conclude that the search would uncover evidence of wrongdoing.

         Here, the officers who executed the search had judicially authorized search warrants. “Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant.” United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988) (citing Leon, 468 U.S. at 922-23). Leon did recognize that if the magistrate 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, ” the good-faith exception would not apply and the evidence would be suppressed. 468 U.S. at 923 (citing Franks). The Fifth Circuit has extended this Franks-exception to omissions in the affidavit as well. See, e.g., United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995). Still, to warrant exclusion, the factual misrepresentations or omissions in the affidavit must be dispositive, meaning that without the falsehood or omission there would not be probable cause. Davis, 226 F.3d at 351.

         Defendants argue that either the affiants' misrepresentation about the “profile” in the affidavits to Magistrate Knowles or the omission of the statistical likelihood that packages fitting this “profile”[29] actually contain drugs means that the good-faith exception does not apply.[30] White also argues that the good-faith exception should not apply because there was no information about the drug-detecting dogs' reliability in the affidavits.[31]These arguments are unavailing.

         At the outset, the Court notes that defendants' motions do not point to any actual misrepresentation that the affiants either knew was false or would have known was false but for their reckless disregard of the truth. Both affidavits plainly describe the direct observations of the affiants as well as inferences they made based on their experience.[32] The only piece of information in the affidavit that could even be considered a misrepresentation is in Cazalot's affidavit. In his affidavit to Magistrate Judge Knowles, Cazalot attests that, after running the recipient's address through a law enforcement database, “it appears that Kierra Fletcher no longer resides at the address.”[33] White argues that Cazalot “said that Kierra Fletcher was disassociated from the premises in ‘November 2014, '”[34] and has submitted an affidavit from Fletcher attesting that the utilities were in her name and she still paid rent through August 2015.[35]

         A review of the affidavit reveals that nowhere does Cazalot attest that Fletcher was disassociated from the premises in November 2014. He merely attests that Fletcher does not appear to be reside there. In fact, Fletcher's affidavit attests that she vacated the residence three months before August 25, 2016.[36] Therefore, Cazalot's attestation that Fletcher did not appear to reside at the residence does not amount to a misrepresentation of the truth, and it certainly cannot be said that he knew it to be false or disregarded the truth.

         In terms of any omissions, neither the omission of the statistics on the “profile, ” nor the omission of information on the dogs' reliability, warrants the conclusion that the good-faith exception should not apply. This follows because there would still be probable cause even if the information were included. See id. Even if the officers deliberately omitted statistical information regarding the likelihood that packages that match this profile contain drugs, the magistrate could still find probable cause based on the other information included in the affidavit. Regardless of any statistics on the “profile, ” the affidavits attest to the facts that the packages were mailed with Express Mail, that drug dealers frequently use Express Mail, that the packages were sent from a fictitious address to an address with fictitious recipients, the signature requirement was waived, and that drug-detecting dogs who were trained to alert to drugs alerted to the presence of drugs in the packages.[37] The Fifth Circuit has already held that these factors by themselves are sufficient to justify the issuance of a warrant. See Daniel, 982 F.2d at 151-52 (finding that an affidavit that explains why a package was suspicious, that drug dealers often ship drugs using the same method as the package at issue, and that a drug-detecting dog that is trained to detect the presence of drugs alerted to the package is information that “clearly constitutes a substantial basis for issuing a warrant”). Therefore, it cannot be said that the omission of any statistical information on the profile misled the magistrate or that there would be no probable cause if the omitted information were included.

         The same is true for any omitted information regarding the drug-detecting dogs' reliability. The affidavits both note that the dogs, Boris and Spike, were trained to alert to the presence of drugs and have been certified within a year of the search.[38] The defendants point out that the affidavits do not, however, identify the certifying agency, the success rate of the dogs, or “any other information necessary to judge the dog's credibility.”[39] Unless the inclusion of this information would establish that there was no probable cause, the good faith exception would still apply. But the Fifth Circuit has held that a showing of the dog's training and reliability is not necessary to obtain a search warrant or support probable cause based on a drug-detecting dog's alert. See United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995) (“Because a showing of the dog's reliability is unnecessary with regard to obtaining a search warrant, a fortiori, a showing of the dog's reliability is not required if probable cause is developed on site as a result of a dog sniff.”); United States v. Thompson, 540 F. ...


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