OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
STATEMENTS, GRANTING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE, AND
DENYING DEFENDANT'S REQUEST FOR FRANKS HEARING AS MOOT (Docs. 36 & 37)
CHRISTINA REISS, District Judge.
This matter came before the court on September 4, 2013 for an evidentiary hearing on Defendant Rason Battle's motions to suppress statements and physical evidence. (Docs. 36 & 37.) The parties completed post-hearing briefing on September 13, 2013, at which point the court took the matter under advisement.
Defendant is charged with knowingly and intentionally possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant seeks suppression of all physical evidence seized pursuant to a search warrant from a dwelling in which he was an overnight guest, arguing that: (1) the search warrant did not describe the place to be searched with sufficient particularity; (2) the search warrant affidavit failed to justify the no knock, nighttime search warrant; and (3) the search warrant affidavit inaccurately recites certain material facts, and without those facts, the search warrant was not supported by probable cause because the reliability of the confidential informant(s) was not established. Defendant requests a further evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) to establish that the alleged material misstatements of fact contained in the search warrant affidavit were intentionally or recklessly made. In such event, Defendant contends there can be no good faith reliance on the search warrant. Defendant also seeks to suppress his post-arrest statements, arguing that law enforcement continued to question him after he invoked his right to remain silent and his right to counsel without a valid waiver of his Miranda rights.
The government opposes the motion, asserting that the search warrant describes the place to be searched with sufficient particularity and that although the search warrant affidavit was "difficult to follow and used imprecise language" (Doc. 45 at 1) in its description of confidential informants, it provided sufficient reliable information to support a finding of probable cause. The government further argues that law enforcement reasonably relied upon what appeared to be a facially valid warrant, and the exclusionary rule does not bar evidence seized in violation of the knock and announce rule. The government contends that a Franks hearing is not warranted because any inaccurate factual statements in the search warrant affidavit were not material to a finding of probable cause. Finally, the government contends that Defendant waived his right to remain silent by initiating further communication with law enforcement, that he did not unambiguously invoke his right to counsel, and that his course of conduct established a Miranda waiver.
The government is represented by Assistant United States Attorney Michael P. Drescher. Defendant is represented Kurt H. Hughes, Esq.
I. Findings of Fact.
A. The Search Warrant.
On March 14, 2013 at 10:38 p.m., a Vermont Superior Court judge issued a onepage search warrant authorizing a ten-day window for a search of a residence for "[a]ny evidence of criminal violations involving the sale and distribution of regulated drugs, that evidence includes regulated narcotics [and other evidence of drug distribution]." (Doc. 45-1 at 1.) It also permitted a search of "[a]11 individuals located inside the residence at the time of the warrant to identify the individuals present and search them for weapons and/or contraband[.]" Id. The warrant states that it is being issued "With No time of day Limitation[.] Also requesting a NO KNOCK and ANNOUNCE exception be allowed for officer safety[.]" Id.
The face of the warrant indicates that it was issued in and for Chittenden County. The warrant contains a description of the place to be searched, but does not indicate the town or city in which it is located. It authorizes a search of:
The residence of Joshua Puma DOB [ ] located 39 Twin Oaks. This residence is a condo located in the second building of the Twin Oaks Terraces. The building is dark green in color with beige shutters. This is a multi unit building and 39 is located in the center of the building and is clearly marked. To access unit 39 you enter into the building and 39 is on the bottom floor with the door being on the right side.
Id. The government presented no testimony from a law enforcement officer executing the warrant regarding whether he or she knew the town or city in which the residence was located.
The law enforcement officers who testified at the court's evidentiary hearing conducted surveillance of the residence, but did not participate in the execution of the warrant. They conceded that unit 39 is not in the center of the building. A Google Earth map introduced into evidence as Defendant's Exhibit E supports a conclusion the residence is also not in the "second building of the Twin Oaks Terraces." A photograph of the building, introduced as Government's Exhibit 1, reveals that the building appears to be blue-gray in color with white shutters, not dark green with beige shutters, and that a range of unit numbers are depicted over the entry way which include, but are not limited to, unit 39. No party introduced evidence that the address "39 Twin Oaks" is or is not unique to Chittenden County, although the government argues this point in its Opposition.
B. The Search Warrant Application and Affidavit.
Winooski Police Department Officer David Nease, who was the affiant for the search warrant application, did not testify at the court's evidentiary hearing. His March 14, 2013 application for the search warrant omits the town or city, as well as the county, in which the residence to be searched is located. The application tracks the search warrant's description of the place to be searched, including its inaccuracies.
Officer Nease's search warrant affidavit, also dated March 14, 2013, was not appended or otherwise incorporated into the search warrant. It, however, twice states that 39 Twin Oaks is located in the City of South Burlington.
The search warrant affidavit contains eighteen paragraphs of information, several of which contain subparagraphs. The majority of the information set forth therein is derived from other law enforcement officers. With regard to his personal knowledge, Officer Nease avers the following:
On March 5th, 2013 Officer Adams and I met with a Cooperating Individual that produced 3 bags of heroin that it advised was given to it by Rell [identified elsewhere in the affidavit as the Defendant]. The suspected heroin was seized as evidence. The CI stated that the heroin was given to it for providing a ride to Rell. The CI was counseled that it was against the law for it to be in possession. This distribution was not monitored, recorded or confirmed.
* * *
On March 14th, 2013 at approximately 1400 hours I spoke to the CI that provided the 3 bags of heroin to Officer Adams and I on March 5th. This CI stated that it had received a call from Rell stating that they were at "Puma['s]" and open for business. The CI stated he told them that it would be by later to pick up. The CI advised that Puma lives at 39 in Twin Oaks Terrace.
* * *
On 03/05/13 Det. Merchand of the Burlington Police Department and I met with CS who informed us about a group of individuals selling heroin in the Greater Burlington area, nicknamed "90" and "Rell." [description of Det. Merchand's investigation] CS advised "90" and "Rell" were staying at a residence on Mayo Road in Colchester. Based on the description provided by CS the house was identified as 354 Mayo Road. [description of car Det. Merchand saw in driveway of Mayo Road residence].
Id. ¶¶ 6, 12, 13.
The government contends in its Opposition that Officer Nease's references to the "Cooperating Individual, " the "CI" and the "CS" refer to the same individual, however, no evidence was presented to support that conclusion. As Defendant points out, on its face, the search warrant affidavit appears to treat them as at least two different individuals, neither of whom is described as a reliable source of infoitnation.
The remainder of the search warrant affidavit contains information derived from other law enforcement officers. Most of the information relates to law enforcement's investigation of drug activity in the greater Burlington area with no reference to or connection with either Joshua Puma or 39 Twin Oaks. With regard to Defendant, the search warrant affidavit recites that he was found to have "an active arrest warrant in the State of Pennsylvania for a Parole Violation with Intent to Distribute Controlled Substances and the State of Pennsylvania is willing to extradite him." Id. ¶ 14. The affidavit further recites that Defendant's parole officer advised law enforcement that Defendant was "a violent offender and has been known to obtain firearms in the past." Id. ¶ 15.
To support a no knock, nighttime search warrant, Officer Nease averred:
I am requesting the limitation of the search warrant to be served between the hours of 6 am to 10 pm be lifted. Law Enforcement personnel will not be able to serve this warrant with this restriction on this date. I am also requesting a "No Knock" exception for this warrant as the individuals that are the subject of this investigation have a violent history outside of the State of Vermont and have had ready access to fireatms. The information providers in this case have not observed any firearms to date but these ...