UNITED STATES v. RALSTON

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

MARK A. ROBERTS, Magistrate Judge.

I. INTRODUCTION

On December 14, 2021, the Grand Jury charged Defendant John Lee Ralston with one count of Possession of Firearms by a Prohibited Person in violation of 18 U.S.C. Sections 922(g)(1), 922(g)(3), 922(g)(9), and 924(a)(2). (Doc. 2.)

The matters before the Court are Defendant's Motion to Suppress and Supplemental Motion to Suppress. (Docs. 21 and 28.) The Government timely filed a response. (Doc. 27.) Defendant timely filed a reply. (Doc. 29.) The Honorable Charles J. Williams, United States District Court Judge, referred the motion to me for a Report and Recommendation. I held a hearing on Thursday, March 3, 2022. (Doc. 30.)

At the hearing, the following Government exhibits were admitted without objection:

Defendant filed an Inventory of Items to be Suppressed and a Supplemental Inventory of Evidence to be Suppressed. (Docs. 21-1 and 28-1.) Defendant's Exhibit A was admitted without objection: Exhibit containing the first, second, and third search warrants and supporting evidence. (Def. Ex. A).

The Government called one witness: Sergeant Investigator Tim Smith of the Jones County, Iowa Sheriff's Department ("Deputy Smith"). For the following reasons, I respectfully recommend that the District Court grant Defendant's Motions to Suppress.

II. FINDINGS OF FACT

This case involves three search warrants issued and executed at two different times on January 15, 2021. The dispute before the Court principally arises out of the first search of Defendant's residence located on real property in rural Jones County, Iowa ("the property.") The property is bisected by Bear Creek Road with structures on either side. Prior to the search, investigators had identified Colton Varty as a suspect in multiple burglaries in the area and suspected he might have secreted items he had stolen on the property. The property contained two residences: a mobile home on the north side of the road and a single-family residence on the south side of the road. At the time of the search, Mr. Varty appears to have been residing in (or at least "frequenting") the mobile home while Defendant was known to be residing in the single-family home. The problem presented is whether the affidavit supported a search of Defendant's residence. To address this issue, I find it helpful to catalog the nature of evidence Deputy Smith marshaled in support of his first warrant application:

(Id. at 5-7.) Deputy Smith testified that it was his belief that Mr. Varty was "frequenting or living. . . on the north side" of the property and that he had no knowledge that Defendant and Mr. Varty were living together. (Smith Hr'g Test.) The property is "just a little under 10 acres . . . pretty much split in half by Bear Creek Road. So there's roughly five acres on the north side of Bear Creek Road and five acres on the south side." (Id.)

Deputy Smith also testified that Defendant's property has been known to be a place to fence stolen property "over the years." (Id.) Deputy Smith's definition of a "fence" is "a place that property gets dropped off to further conceal, et cetera." (Id.) Deputy Smith also said that fences may sell or "hold onto property for an inordinate amount of time" because statutes of limitations can expire, people forget about things, or investigations move on. (Id.)

Deputy Smith presented his warrant application to state Magistrate Kristin Denniger on January 14, 2021. In addition to the four corners of the warrant, the judge also relied on Deputy Smith's sworn testimony provided at the time he presented the warrant application. (Gov. Ex. 1 at 70.) Under oath, Deputy Smith told Magistrate Denniger where the structures were located on the property. (Smith Hr'g Test. at 73-76.) Based on the warrant application and the testimony, the judge granted the warrant. (Gov. Ex. 1 at 71-73.) The warrant was executed on January 15, 2021. (Id. at 74-88.)

The warrant authorized law enforcement to search Defendant's residence on the south side of the property, the trailer home on the north side of the property, outbuildings, Mr. Varty's 2003 Jeep Liberty, Defendant, and Mr. Varty. (Id. at 1.) Items to be seized were

(Id. at 1-2.) At issue are the items seized from the bedroom and kitchen of the residence in which Defendant was living on the south side of the property.6 (Id. at 75-76; Doc. 21-1.)

A. Whether the First Warrant Contained a Substantial Basis for Concluding that Probable Cause Existed to Issue the Warrant

The Fourth Amendment to the United States Constitution provides that "no [search] Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "Probable cause exists when, viewing the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Reed, 921 F.3d 751, 757 (8th Cir. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 230, 238 (1983)). "Common sense" drives the inquiry into whether probable cause exists, and the ultimate determination cannot be "readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 231-32 (1983). "`[T]his practical and common-sensical standard' is based on `the totality of the circumstances.'" United States v. Zamora-Garcia, 831 F.3d 979, 983 (8th Cir. 2016) (alteration in original) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).

It is not this Court's place to determine whether affidavits supporting search warrants are supported by probable cause. "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts." Gates, 462 U.S. at 236 (citation and internal quotation marks omitted). "In reviewing the issuance of a warrant, a district court need not make a de novo inquiry into the existence of probable cause, but rather should uphold the decision to issue the warrant so long as it is supported by `substantial evidence in the record.'" United States v. Hallam, 407 F.3d 942, 948 (8th Cir. 2005) (quoting Massachusetts v. Upton, 466 U.S. 727, 728 (1984) (per curiam)); see also United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986) ("[T]he decision to issue the warrant is to be upheld if supported by substantial evidence on the record."). "When a magistrate relies solely on an affidavit to issue the warrant, only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause." United States v. Farlee, 757 F.3d 810, 819 (8th Cir. 2014) (citation and internal quotation marks omitted). Therefore, "[r]eviewing courts must give substantial deference to the original determination of probable cause made by the judge who issued the warrant, and that determination will not be set aside unless the issuing judge lacked a substantial basis for concluding that probable cause existed." United States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995) (citing Gates, 462 U.S. at 238-39).

A substantial basis only requires that the issuing judge "make a practical and common-sense" determination, based only on the circumstances set forth in the affidavit, that the totality of the circumstances point to "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Kail, 804 F.2d 441, 444 (8th Cir. 1986) (quoting Gates, 462 U.S. at 238). "[T]here must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue." United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) (citing United States v. Koelling, 992 F.2d 817, 823 (8th Cir.1993)). "Judges may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a search warrant." United States v. Keele, 589 F.3d 940, 944 (8th Cir. 2009) (citations omitted). Defendant bears the burden of proving the warrants were issued without probable cause. Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984) (citing United States v. Phillips, 540 F.2d 319 (8th Cir. 1976)). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109 (1965).

1. The Parties' Arguments

Defendant argues that the affidavit supporting the first warrant lacked probable cause that evidence from the reported thefts would be found inside his residence. (Doc. 21-2 at 4.) Defendant asserts that while criminal activity was alleged to have taken place on the property, that property is shared with Mr. Varty and Mr. Varty inhabited one part of the property while Defendant inhabited another part of the property. (Id. (citing Def. Ex. A at 4-6.) Defendant points out that law enforcement had done surveillance of the property, determined the mobile home on the north side of the property was Mr. Varty's residence, knew which residence Mr. Varty parked his car near on a regular basis, and therefore could have easily narrowed the scope of their search. (Id. citing Def. Ex. A at 5-6; People v. Randolph, 4 P.3d 477, 481 (Colo. 2000) (citation omitted).)

Defendant argues that while a warrant to search multiple buildings is acceptable, "there must be probable cause to search all of the buildings which does not exist in this case because the Government never showed that Varty had access to those parts of the property." (Doc. 29 at 2.) He asserts that the area covered by the search warrant, 9.32 acres, is "too large"7 to decide if there is a fair probability that evidence of a crime will be found in any of the five buildings on all that property. (Id.) Defendant avers that the warrant "barely mentions Varty being on the south side of the property at all. In fact, there is only one instance where Varty is observed on the south side of the property and he was walking away from the residence on the south side at the time." (Id. (citing Def. Ex. A at 6.) Defendant argues:

(Id.) Therefore, Defendant concludes that the first warrant was not supported by probable cause. Accordingly, Defendant seeks suppression of all items listed in his inventory filed at Docket No. 21-1.8

The Government, however, contends that the first warrant is supported by probable cause. According to the Government, the affidavit contained "a multitude of links between Varty and defendant and why evidence of the thefts could be found anywhere on the property, including where defendant lived." (Doc. 27-1 at 7.) The Government relies on information in the affidavit to show "links" between Mr. Varty and Defendant and to explain why Defendant's property, "in particular[,] was conducive to criminal activity."

(Id. (citing Gov. Ex. 1 at 5, 7 (alterations in second paragraph in original).)

The Government also argues that the affidavit contains the following statements that support the conclusion that evidence of crimes could be found anywhere on the property, including Defendant's residence:

(Id. at 8 (citing Gov. Ex. 1 at 6-7).) The Government also asserts that the affidavit in this case can be distinguished from the affidavit in Randolph, cited by Defendant, because the affidavit in that case was "bare bones" and the affidavit here is detailed. (Id. at 8.) Therefore, according to the Government, the issuing judge had a substantial basis for finding the warrant was supported by probable cause.

2. Analysis

It is undisputed that the affidavit in support of the search warrant contains strong evidence that Mr. Varty went on a burglary spree in Jones County, Iowa in December 2020, that the items he most frequently stole were power tools, and that he sold some of those stolen tools to the CS. It is also undisputed that at the time, Mr. Varty resided in (or at least "frequented") a trailer home on the north side of the property and that he did not live with Defendant. Defendant lived in a house on the south side of the property. While the distance between the two residences is not in evidence, a map of at least part of the property is in evidence. (Gov. Ex. 1 at 1.) The map is very poor quality, but it is clear that Bear Creek Road, which runs east and west, bisects that property into a north part and a south part. (Id.) Defendant's residence is separated from Mr. Varty's residence by Bear Creek Road. (Id.) In addition, it is clear that Mr. Varty's Jeep was likely used to commit the burglaries. Witnesses described seeing the Jeep or a vehicle similar to the Jeep at burglary sites at and around the times of several burglaries. The affidavit also clearly establishes that the Jeep was seen on the property, but primarily on the north side of the property near the brown trailer. Mr. Varty has also been observed on the property, but not in or around Defendant's residence, although he had been seen on the south side of the road approaching a vehicle. (Id.) Although Deputy Smith stated he personally saw Mr. Varty's vehicle "at Ralston's," in context, this means he saw the vehicle on the Ralston property, not at the residence on the south side of the property. (Id. at 5-6.) The entire paragraph containing this statement is about "the property."9 Moreover, whenever Deputy Smith refers to the residence on the south side of the property, he calls the residence "Ralston's residence" or "the Ralston residence." (Id. at 5-6.) Even if Deputy Smith did once see Mr. Varty's Jeep at Defendant's residence, that alone provides almost no support for probable cause to search the residence. There is little evidence connecting Defendant to Mr. Varty's burglaries or any indication that Mr. Varty and Defendant were involved in some other kind of illegal activity, other than Defendant's criminal history which showed some historical thefts, one burglary, and illegal drug use as discussed below. (Gov. Ex. 1 at 10-26.)

The affidavit establishes that burglars often store their ill-gotten gains in storage sheds or other places on private property to avoid detection. A generous reading of the warrant establishes that "Ralston's property is ideal to . . . utilize as a fence to conceal one's stolen property." (Id. at 7.) See Ventresca, 380 U.S. at 109 (holding that "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.") Finally, it is undisputed that the affidavit establishes that the stolen UTV had been seen on the property. Therefore, I find that the warrant supported probable cause to search Mr. Varty's trailer home and the outbuildings on the property and to seize the stolen UTV law enforcement had previously seen on the property. (Gov. Ex. 1 at 77-83, 85-88.)

The warrant does not, however, provide a nexus between the contraband and Defendant's residence on the south side of the property, other than the UTV, which could not be concealed inside Defendant's residence.10, 11 See Tellez, 217 F.3d at 550. First, there is no evidence in the affidavit that Defendant was involved in the burglaries. As defendant points out, his being on the same property with Mr. Varty, without more, did not support probable cause that stolen goods would be found in his residence.12 "Probable cause is not established `by the presence of a person in a location known to be frequently involved in . . . other crimes." United States v. Perez-Perez, No. CRIM. 02-97, 2002 WL 34490513, at *5 (S.D. Iowa Aug. 21, 2002) (discussing an arrest warrant) (quoting United States v. Everroad, 704 F.2d 403, 406 (8th Cir. 1983)) (citation omitted), aff'd, 337 F.3d 990 (8th Cir. 2003).

Second, the affidavit describes the places law enforcement seeks to search with the broad terms "the areas sought in this warrant" and "this property." (Gov. Ex. 1 at 8.) The Government does not dispute that the property covers almost ten acres and multiple buildings. As discussed above, a road separates Defendant's residence from Mr. Varty's home, which creates an obvious boundary between the areas over which Mr.

Varty and Defendant had at least apparent dominion and control. There is no evidence that Mr. Varty ever entered Defendant's residence. More importantly, the evidence that Mr. Varty was on the south side of the property or that criminal activity may have occurred on the south side of the property is minimal:

(Id. at 6-7.)

This information provides very little to support nexus between the contraband to be seized (stolen property, burglary tools, and items commonly used to assist in thefts or distribution of stolen property) and Defendant's residence. Clearly the criminal actor in the affidavit is Mr. Varty. Deputy Smith testified that he believes his affidavit and his statements to the magistrate conveyed that there was a mobile home on the north side of the road and a single-family residence on the South. While that may have been Deputy Smith's intent, I will first observe, as I did at the hearing, that, at least within the four corners of the affidavit and supporting documentation this arrangement of the various structures was unclear. More specifically, the affidavit was less than clear in explaining that there was a residence on the south side of the road where Defendant was known to reside.

Moreover, the affidavit tends to conflate, "the property" or "Ralston's property" with "Ralston's residence" in a way that tends to overstate the nexus between the residence and any suspected criminal activity.13 The place to be searched described in the warrant application is the 9.32 acres owned by Defendant's mother and includes the mobile home and the single-family residence. Generally, the affidavit tends to refer to 9.32 acres straddling Bear Creek Road as "the property" or "Ralston's property. For example,

(Id. at 5-6.) In this context it is clear that "John Ralston's property" and "the property" refer to real estate on both sides of the road. However, the affidavit does not consistently distinguish the single-family residence in which Defendant was known to reside and the 9.32 acre parcel. For example, the affidavit states, "Ralston's residence is also situated on the edge of Jones and Jackson County. This is a very rural area. Ralston's property is ideal to reside and or utilize as a fence to conceal one's person as well as stolen property." (Id. at 7.) While these sentences may both be literally true, it is by no means apparent that the single-family residence is intelligibly distinguished from the remainder of the parcel as being at the edge of the county or more rural. Thus, this is an example, perhaps, of merely conflating the two terms. More troubling are the following two statements, "I [sic] aware the thefts and burglaries mentioned in this affidavit have all occurred within several miles of John Ralston's residence where we believe Varty and Ralston are residing" and "We know by speaking to residents situated near the Ralston residence about increased traffic to and from the residence." (Id. at 5, 7.) Even if these latter examples are merely conflating the single-family residence with the larger property, they tend to show a nexus between Defendant's residence and criminal activity that is not supported by evidence known to law enforcement.

Moreover, the affidavit does not tie Mr. Varty to Defendant's residence: it never mentions that Mr. Varty was seen in or even near Defendant's residence. "Proximity to Ralston's residence" cannot be regarded seriously as meeting the specificity standards required under the law. At most, the affidavit states that Mr. Varty was seen "on the south side of the property walking towards a vehicle." The owner of the vehicle is not identified. There is no indication how close Mr. Varty was to Defendant's residence at this time, only that the vehicle was parked close to the front of the property. The affidavit goes on to say that when officers "made a second pass on the roadway, this vehicle was no longer present." (Id. at 6.) That Mr. Varty was pulled over driving a vehicle on an earlier date with contraband in the vehicle does not add to probable cause that contraband would be found in Defendant's residence because the contraband found in the vehicle at that time was a sawed-off shotgun and suspected methamphetamine. The only connections the affidavit draws between the actual crimes described and drugs are the facts that both Defendant and Mr. Varty are known drug users and that in Deputy Smith's experience, burglaries are commonly also involved in the distribution of illegal drugs. I have no reason to believe this information is untrue. Also, such information may help establish probable cause in a case where there is evidence of drug sales on the property or where there was other evidence of a broader drug trafficking operation. No such evidence exists in this case. The only specific evidence in the affidavit involving Mr. Varty or Defendant is that they were drug users, not drug distributers. Although Deputy Smith testified that he believed Defendant was trafficking in drugs because his deputies had seen short-term traffic on both the north and south sides of the property, he did not testify that anyone had witnessed a sale or exchange of any kind at Defendant's residence. (Smith Hr'g Test.) Likewise, if Deputy Smith saw Mr. Varty's Jeep at Defendant's residence on one occasion, that, alone, means little without evidence that Defendant had any involvement in the burglaries that are the target crimes of the search warrant. Defendant's and Mr. Varty's criminal histories, which were attached to the warrant application, likewise, do not reference drug distribution convictions. (Gov. Ex. 1 at 9-26.) Though Defendant's property is "ideal" to conceal and "fence" stolen property, that is of little consequence when there is no other nexus to criminal activity. In addition, as pointed out during Defendant's cross-examination of Deputy Smith, his training and experience tended to show that stolen property might be secreted just about anywhere. Certainly it was possible Defendant's residence could be involved in fencing stolen goods, but the affidavit provides little reason (other than proximity to Mr. Varty's residence) to believe it was at all probable.

While I have parsed the relevant warrant statements, looking at them in the context of the entire affidavit and all its attachments as I must, the totality of these circumstances does not support a finding that evidence of criminal activity would be found in Defendant's residence. Although close cases should be resolved in favor of upholding warrants, Ventresca, 380 U.S. at 109, I cannot lose sight of the "special" privacy protections afforded to a person's home. See Lange v. California, 141 S.Ct. 2011, 2018 (2021) (discussing warrantless search exceptions); United States v. Herron, 215 F.3d 812, 815 (8th Cir. 2000) (holding that the Leon good faith exception did not save a warrant search of a home and reasoning that a person's home deserves special protection under the Fourth Amendment).

The defendant in United States v. Lynch asserted arguments similar to those Defendant asserts in this case: that the application in support of the search warrant for his residence and surrounding outbuildings was overbroad because the facts only supported issuance of a warrant for the search of the outbuildings on his property and not the residence. 322 F.3d 1016, 1017 (8th Cir. 2003). The Eighth Circuit disagreed, stating that the information in the affidavit and search warrant "clearly establish[ed] probable cause to search the entire property." Id. The application detailed police observations of two suspected drug dealers arriving at the residence in an automobile, entering the residence, and exiting the residence carrying two small items that they placed in the automobile. Id. The defendant then walked behind one of the outbuildings, returned with a large bucket, put the bucket into a storage box that he had in the trunk of his own car, and then placed the storage box into the suspected dealers' trunk. Id. Police stopped the suspected dealers for a traffic violation, searched the car, and found materials for making methamphetamine. Id. Lynch held that "[t]his alone would support the issuance of a warrant to search the entire property; however, there was more." Id. The affidavit also included information from confidential informants stating that the defendant allowed one of the drug dealers to use his home to cook methamphetamine, that he sold anhydrous ammonia to the drug dealer, and that he was dealing marijuana. Id. at 1017-18. The warrant also "listed prior arrests and convictions of [the drug dealers] for various narcotics crimes" and the information that a recent search of one of the dealers' residences turned up materials and substances used to manufacture methamphetamine. Id. at 1018; Cf. Randolph, 4 P.3d at 482 ("The most serious problem with the affidavit . . . is its geographic scope. The affidavit listed at least five separate buildings without connecting the alleged criminal activity to each of those buildings.").

As discussed above, there is nothing tying Defendant to Mr. Varty's burglary activity other than the fact that they both live on a piece of property owned by Defendant's mother. (Gov. Ex. 1 at 1.) However, because Defendant's mother is in a care facility, it is unclear whether Defendant and Mr. Varty are both akin to tenants of Defendant's mother or whether Defendant is more akin to Mr. Varty's landlord.14 Whether Defendant was Mr. Varty's landlord or they were both tenants of Defendant's mother is of little moment. Neither relationship establishes Mr. Varty's right to access Defendant's residence, much less his actual use of it. In either case, Mr. Varty's allegedly criminal actions do not, by themselves, implicate Defendant. If these relationships by themselves implicated people in criminal activity, tenants who lived in the same building as a criminal could be subject to searches of their homes. Here, Deputy Smith testified that he had no information that Mr. Varty even knew Defendant prior to moving onto his property. (Smith Hr'g Test.) Thus, the relationship between Mr. Varty and Defendant could merely be as neighbors who happened to be tenants or they could be in a landlord/tenant relationship. Mr. Varty being seen "on" a property that is almost 10 acres does not establish any kind of personal between them, much less a criminal link.

The case at bar can be distinguished from Lynch. Here, unlike in Lynch, there was no detail as to what "traffic" to Defendant's residence involved if the affidavit is interpreted as showing such traffic to the residence itself rather than the entire 9.32 acre parcel. For example, the affidavit does not disclose who was coming and going, what types of items came and went from the residence, or other information that would associate it with possible trafficking of drugs or stolen property. Defendant's most recent drug charges were misdemeanor charges for possession of paraphernalia and misdemeanor possession of a controlled substance in April and November 2019. (Gov. Ex. 1 at 21-22.) Defendant's most recent theft charge was a fifth degree misdemeanor theft charge (possess/control under $500) from March 2019. (Id. at 21.) These unrelated and remote crimes do not indicate that Defendant would participate in Mr. Varty's crimes and do not establish a nexus between those crimes and Defendant's residence.15 While it is true that Mr. Varty was selling the tools he stole, there is no information that he did so from Defendant's residence. Mr. Varty did not meet the CS at Defendant's residence. There is also no indication where the photo Mr. Varty sent to the CS on Facebook Messenger was taken, although Deputy Smith admitted it was "potentially" taken in the trailer on the north side of the property.16 Thus, I find the warrant did not provide a substantial basis to support the judge's finding of probable cause to search Defendant's residence.

Accordingly, I recommend that the part of the warrant authorizing the search of Defendant's residence, "[a] single story white vinyl sided single family home built in 1980 consisting of 720 square feet" (Gov. Ex. 1 at 1), be severed from the warrant. See United States v. Coleman, 909 F.3d 925, 931 (8th Cir. 2018) ("[W]here [an overbroad] warrant is invalid only in part, the warrant is `severable,' and items seized pursuant to valid portions of the warrant need not be suppressed.") (quoting United States v. Timley, 443 F.3d 615, 622 (8th Cir. 2006)) (alterations in original). Unless the evidence seized in the search of Defendant's residence can be admitted into evidence based on the Leon good faith exception discussed below, I recommend the evidence be suppressed.

B. The Leon Good Faith Exception

I have recommended the Court find there was no substantial basis supporting the judge's finding of probable cause for the search of Defendant's residence. I further find that the Leon good faith exception does not apply to the relevant portions of the warrant.

Under the good faith exception articulated in United States v. Leon, even if a reviewing court determines substantial evidence to issue a warrant is absent, the court should not suppress evidence seized pursuant to the search warrant if the officers executing the search warrant acted in objectively reasonable reliance on the issuance of the warrant by a neutral magistrate or judge. 468 U.S. 897, 922 (1984); United States v. Houston, 665 F.3d 991, 994-95 (8th Cir. 2012). "In making this determination, we ask `whether a reasonably well trained officer would have known that the search was illegal despite a judge's issuance of the warrant.'" United States v. Lopez-Zuniga, 909 F.3d 906, 909 (8th Cir. 2018) (quoting United States v. Jackson, 784 F.3d 1227, 1231 (8th Cir. 2015)).

Under the "good-faith exception," if a law enforcement officer's reliance on a warrant was objectively reasonable, the evidence seized pursuant to an invalid warrant will not be suppressed. United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007). Proell noted that Leon identified four scenarios where it is not objectively reasonable for the executing officer to rely on a warrant issued by a magistrate.

Id. at 431 (citing Leon, 468 U.S. at 923; United States v. Puckett, 466 F.3d 626, 630 (8th Cir. 2006)) (emphasis in original).

Leon explained that "[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a judge normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." 468 U.S. at 922 (quotations omitted). Nevertheless, "in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-23 (footnote omitted).

Defendant's reply brief is clear that he relies on the third Leon scenario, that "the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" to support his argument that the Leon good faith exception does not apply. (Doc. 29 at 3.)

Both parties cite United States v. Herron, 215 F.3d 812 (2000) in support of their arguments. Herron's analysis, which I find apposite in this case, also focused on the third scenario. The Government succinctly summarizes the case in the following way:

(Doc. 27-1 at 10.)

Defendant argues that this case is similar to Herron because the affidavit "does not contain supporting indicia such that the good faith exception should apply." (Doc. 21-2 at 6.) Defendant asserts that there is little in the affidavit tying him or his residence to the reported thefts other than the fact that Mr. Varty resided in a trailer on the property. (Id.) Defendant argues that because the geographic area covered by the warrant was so broad and the amount of information about his connection to illegal activity was so minimal, the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." (Doc. 29 at 3 (citing Randolph, 4 P.3d 477 ("The court held that the officers' reliance on the warrant was not objectively reasonable because the warrant failed to specify where the drug activity observed by the informant had taken place.").)

The Government responds that "several pages in the affidavit in this case provide significant detail on defendant's connection to the crimes." (Doc. 27-1 at 11.) The Government distinguishes this case from Herron where the connection to the defendant was remote in time because it is clear in the affidavit that Defendant and Mr. Varty were living on the property at the relevant time. The Government further asserts that "activity linked to crime, including thefts, drugs, and firearms had `increased' after defendant was paroled and living on his property once more." (Id. (citing Gov't Ex. 1 at 6-7).) The Government's final argument is that the warrant was signed by an experienced judge, a former prosecutor with knowledge of warrants and the probable cause standard. (Id.) Therefore, according to the Government, the affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

While the Government is correct that the information in the affidavit is not remote in time, it is not correct that several pages in the affidavit provide significant detail on Defendant's connection to the crimes. As documented above, Defendant himself is mentioned relatively few times in the affidavit. Perhaps the absence of probable cause with respect to Defendant's residence is somewhat disguised by the surfeit of detail tying Mr. Varty and his residence to criminal activity. While Mr. Varty's connection to "the property" might be established, his connection to Defendant's residence and Defendant's involvement in Mr. Varty's burglary spree is not. There is, frankly, not even any evidence in the affidavit that Mr. Varty and Defendant ever crossed paths on the 9.32 acres that constitute the property or anywhere else, unless the reference to the Jeep being parked "at Ralston's" is taken out of context and interpreted to mean the Jeep was parked at Defendant's residence, and then it is assumed that Mr. Varty was inside Defendant's residence or in the company of Defendant at the time. To the extent the Government asserts that Defendant's history of drug use created the required nexus between the criminal activities alleged in the affidavit and his residence, that argument is unavailing. Furthermore, the short-term frequent traffic from Defendant's residence mentioned in the affidavit proves nothing because rather than being fleshed out by relevant facts tying Defendant and his residence to criminal activity, the short term traffic is tied only to general statements of knowledge that have no connection to the facts of the case: (1) short-term frequent traffic is consistent with criminal activity, (2) burglaries are commonly involved with the distribution of illegal drugs, and (3) stealing property is an easy way to get money to purchase drugs or to trade for drugs. (Gov. Ex. 1 at 7.)

Likewise, the affidavit's attempt to create a connection between Defendant's residence and Mr. Varty's criminal activity fails to do so. After stating that criminals will often commit burglaries/thefts close to their places of residence, the affidavit states that "Varty has committed multiple [burglaries/thefts] in proximity to Ralston's residence. We just received information that a recent burglary was reported yesterday. This property is 2.55 miles (as the crow flies) from the Ralston residence." (Id. at 6-7.) This is no doubt literally true. But again, the statement is phrased in a manner to implicate Defendant's residence (as opposed to the 9.32 acre parcel) in a manner unsupported by the evidence. Thefts attributable to Mr. Varty were in proximity to Mr. Varty's residence and approximately 2.55 miles from Mr. Varty's residence. Pointing out the proximity of the crimes to Defendant's residence might tend to support probable cause if Defendant and/or Defendant's residence were otherwise tied to the burglaries such as by information showing it was used to fence property stolen by Mr. Varty. As written, the affidavit contains nothing to make Defendant's residence — as opposed to Mr. Varty's residence — a place where law enforcement was likely to find evidence of the target crimes. The efforts to implicate Defendant's residence flies in the face of the common sense that drives the inquiry into whether probable cause existed to issue this warrant. See Gates, 462 U.S. at 231-32.

Moreover, the Government's argument that criminal activity related to theft, drugs, and firearms increased after Defendant was paroled to the property in November 2020 is without merit. Although the affidavit focuses on a series of burglaries that occurred in December 2020 within "several miles" of the property, there is no indication that the number of burglaries was high for the area or represented an increase over the past number of burglaries in the area. In fact, other than the above-mentioned statements that stealing property is a way to obtain money to buy drugs and that Defendant and Mr. Varty are both known drug users, drugs are never mentioned. The only mention of a firearm is the sawed-off shotgun found in the vehicle Mr. Varty was driving in a traffic stop. The affidavit says nothing about increased drug or firearms crime.

Although officers executing the search warrant undoubtedly respected the judge who signed the warrant, perhaps for her experience, among other things, the standard for evaluating the sufficiency of the warrant, itself, is an objective one. Leon, 468 U.S. at 919 n.20 ("We emphasize that the standard of reasonableness we adopt is an objective one."); United States v. Goody, 377 F.3d 834, 836 (8th Cir. 2004) ("An officer's objective good faith is determined by asking `whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.'") (quoting Leon, 468 U.S. at 922 n.23) (emphasis added). Admittedly, officers in the field may not have been able to ignore the experience of the judge who signed the first warrant. See United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994) (although warrant was valid, opining that if court had considered Leon, deputy "could easily have assumed the warrant, issued by a judge with many years of experience, was lawful."); United States v. Hernandez, No. CR. 08-198(1)JRT/RLE, 2008 WL 4748576, at *17 & n.5 (D. Minn. Oct. 28, 2008) (finding warrant supported by probable cause and reasoning, in part, that a respected district court judge with criminal law experience concluded that the warrant was lawful and "we could not reasonably expect law enforcement officers to assess the lawfulness of the Warrant differently."). That being said, a warrant must still establish "a nexus between the contraband and the place to be searched." Tellez, 217 F.3d at 550 (citation omitted).

Here, although the affidavit is not "bare bones," like the affidavit in Randolph, 4 P.3d at 482, the affidavit also does not provide a nexus between stolen tools or other contraband and Defendant's residence. It is possible to become distracted by the impressive level of detail and quantity of information about some aspects of the investigation set forth in the affidavit and the care with which Deputy Smith laid out the timeline, described the burglaries, and wove in information gleaned from this training and experience. However, none of that saves the part of the warrant authorizing a search of Defendant's residence when it is examined specifically to tease out the required nexus to the residence.

I find that the affidavit so tenuously connected Defendant or his residence to the burglaries, if at all, that the lack of probable cause in the affidavits would have been apparent to reasonable officers, "despite the issuance of a warrant." See Lopez-Zuniga, 909 F.3d at 909; Herron, 215 F.3d at 815. The facts do not support a conclusion that an objectively reasonable officer could have believed the search of Defendant's residence was lawful. The facts simply are not "close enough to the line of validity" to "push[] this case into the gray area created by Leon." United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989).

Accordingly, the evidence seized in the search of Defendant's residence should be suppressed. I recommend that the District Court grant Defendant's Motion to Suppress. (Doc. 21.)

C. Fruits of the Poisonous Tree

The second search warrant authorized law enforcement to search the same buildings and property as the first warrant, a black Chevrolet truck with an extended cab and affixed black topper registered to Defendant's mother, and a cream-colored 5th wheel camper with unknown identifying numbers. (Gov. Ex. 2 at 1.) The third search warrant authorized law enforcement to obtain a urine sample from Defendant. (Gov. Ex. 3 at 1.) Defendant argues that both warrants are fruits of the poisonous tree that was the search of his residence pursuant to the first warrant. The Government contends there is no poisonous tree and therefore, evidence seized pursuant to the warrants need not be suppressed.

1. Whether Evidence Seized Pursuant to the Second Warrant Must be Suppressed as Fruit of the Poisonous Tree

a. The Warrant

The second warrant authorized the seizure of, among other things, specific drugs and drug paraphernalia, a Samsung cell phone, two firearms, and ammunition located when officers searched Defendant's residence pursuant to the first warrant. In relevant part, the warrant states the following. Information discovered during the initial search of Defendant's home are in bold typeface and underlined.

(Id. at 1-3 (emphasis added).)

In executing the second warrant, law enforcement seized the items Defendant seeks to suppress shown in Defendant's inventory, i.e., firearms, ammunition, and a cell phone. (Doc. 21-1 at 2.)

b. Analysis

"The exclusionary rule `reaches not only primary evidence obtained as a direct result of an illegal search or seizure . . . but also evidence later discovered and found to be derivative of an illegality or fruit of the poisonous tree.'" United States v. Swope, 542 F.3d 609, 613 (8th Cir. 2008) (quoting Segura v. United States, 468 U.S. 796, 804 (1984) (noting internal marks omitted) (ellipses in original). "The sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information." United States v. Davis, 760 F.3d 901, 903 (8th Cir. 2014) (citing United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004)). Specifically, "when faced with a warrant containing information obtained pursuant to an illegal search, a reviewing court must excise the offending information and evaluate whether what remains is sufficient to establish probable cause." United States v. Dessesaure, 429 F.3d 359, 367 (1st Cir. 2005).

Defendant argues that because the second warrant "refers to suspected drugs, ammunition, and firearms which were found when the first warrant was executed," the warrant is fruit of a poisonous tree. (Doc. 21-2 at 6.) Defendant is correct. The information highlighted in bold typeface and underlined is fruit of a poisonous tree and must be excised.

In the last paragraph, the highlighted text describes the "residences." Those references must be edited to only refer to Mr. Varty's residence. The edited affidavit does not support probable cause to search Defendant's residence.18 In fact, the excised warrant states that "all suspects mentioned have full access to all the curtilage, vehicles, and outbuildings on the property" and therefore specifically provides that Mr. Varty had no access Defendant's residence. Finally, although Mr. Varty stated that he gave Defendant two firearms a month earlier, it is impossible to tell on this record whether that statement itself was the fruit of law enforcement's inquiry about the weapons they had seen in Defendant's residence or if it came unprompted. Even if the statement was not the fruit of the prior search, it does not create probable cause to believe weapons were present in the residence a month later. The statement is even less reliable given the lack of evidence in the first and second warrants that Mr. Varty and Defendant knew each other, let alone that Mr. Varty had ever seen weapons in Defendant's home. Again, a person's home is afforded special protections against invasions of privacy. Lange, 141 S. Ct. at 2018. An uncorroborated tip from someone seemingly unconnected to Defendant other than by virtue of living in different homes on the property does not support probable cause for the search of Defendant's home. I therefore recommend granting Defendant's Motion to Suppress. (Doc. 21.)

2. Whether Evidence Seized Pursuant to the Third Warrant Must be Suppressed as Fruit of the Poisonous Tree

a. The Warrant

The third warrant sought "one legal urine and/or blood specimen to be obtained at the discretion of L/E, from John Ralston . . . ."19 (Gov. Ex. 3 at 1.) Information discovered during the initial search20 of Defendant's home are in bold typeface and underlined.

(Id. at 2 (emphasis added).)

b. Analysis

Defendant argues that because the third warrant was "based upon drug paraphernalia and suspected drugs which were found when the first warrant was executed," there is no independent basis for the warrant, and therefore, evidence obtained pursuant to the warrant must be suppressed. (Doc. 21-2 at 6-7.)

Defendant is correct. The information in bold and underlined in the warrant application is fruit of a poisonous tree and must be excised. Davis, 760 F.3d at 903. Without evidence seized in the search of Defendant's residence, there is no evidence that Defendant possessed a firearm in violation of the law. See id.; Dessesaure, 429 F.3d at 367. One purpose of the warrant to obtain a urine sample because it is illegal to possess a firearm and/or ammunition as a convicted felon or as a drug user is thwarted when the warrant no longer contains evidence that Defendant possessed a firearm and/or ammunition. The analysis does not end here, however, because the third warrant application seeks evidence of drug crimes not related to weapons possession: "I believe probable cause exists to believe [Defendant] is a drug user and involved in the distribution of narcotics." (Gov. Ex. 3 at 2.)

Although the excised warrant states that "[i]n working with confidential sources in [his] official capacity, [Deputy Smith] is aware John Ralston has been involved in the use and sale of illegal drugs;" Defendant has an "extensive" drug history; Defendant has multiple felony convictions and has served both state and federal prison time; and there has been "a lot of vehicle traffic to and from John Ralston's," often short-term, that information does not support probable cause for Defendant to provide a urine sample. Though this is the first indication across the three warrants that Defendant might be involved in drug distribution, the allegation is neither corroborated nor given indicia of reliability because the application does not contain information about the confidential sources. (Compare Gov. Ex. 2 to Gov. Ex. 1 at 69 (Informant's Attachment).) Stating that Defendant "has been involved" in the sale of illegal drugs without any other information, especially without a date, means this information adds nothing to probable cause. Likewise, as discussed in part III.A, "short term traffic," without any details as to who is coming and going and what they are doing on the property does nothing to establish probable cause. Defendant's criminal history, without more, does not justify obtaining a urine sample. I therefore recommend granting Defendant's Supplemental Motion to Suppress. (Doc. 28.)

D. Recommendation

I recommend granting Defendant's motions to suppress. (Docs. 21, 28.) Defendant's Motion to Suppress at Docket 21 seeks only to suppress certain evidence seized in the search of his residence.22 (Doc. 21-1.) The rest of the evidence seized in the search executed pursuant to the first warrant need not be suppressed. Defendant's Supplemental Motion to Suppress at Docket 28 seeks only to suppress evidence obtained from the urine sample the third warrant authorized law enforcement to collect. This motion should also be granted because the warrant was fruit of the poisonous tree.

In the alternative, if the District Court disagrees with me and finds that the first warrant authorized the search of Defendant's residence, then I recommend denying both Defendant's motions in their entirety.

III. CONCLUSION

For the reasons set forth above, I respectfully recommend the District Court GRANT Defendant's Motion to Suppress (Doc. 21) and GRANT Defendant's Supplemental Motion to Suppress (Doc. 28).

Objections to this Report and Recommendation in accordance with 28 U.S.C. Section 636(b)(l) and Fed. R. Crim. P. 59(b) must be filed within fourteen (14) days of the service of a copy of this Report and Recommendation. Objections must specify the parts of the Report and Recommendation to which objections are made, as well as the parts of the record forming the basis for the objections. See Fed. R. Crim. P. 59. Failure to object to the Report and Recommendation waives the right to de novo review by the district court of any portion of the Report and Recommendation as well as the right to appeal from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009).