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United States v. Hibbs

United States District Court, C.D. Illinois

September 26, 2012

UNITED STATES of America, Plaintiff,
v.
Timothy HIBBS, Defendant.

Page 863

[Copyrighted Material Omitted]

Page 864

Timothy A. Bass, Asst. U.S. Attorney, Springfield, IL, for Plaintiff.

Daniel J. Hillis, Asst. Fed. Public Defender, Springfield, IL, for Defendant.

OPINION

RICHARD MILLS, District Judge:

The Court denies the Motion to Suppress and adopts the Report and Recommendation for the following reasons.

I.

The Court notes that it has carefully reviewed the Report and Recommendation entered by U.S. Magistrate Judge Byron G. Cudmore, the documents filed in this case related to suppression (with their attached exhibits), and the authorities cited therein.

The Court further notes that the Defendant did not request an evidentiary hearing, and no hearing was held.

II.

Judge Cudmore described the facts as follows:

On February 23, 2012, an Adams County, Illinois, state court judge issued the Warrant. The Judge found probable cause to authorize the search. Hibbs does not challenge the validity of the affidavit presented to secure the Warrant or the Judge's finding of probable cause to issue the Warrant.
The Warrant directed officers to conduct the following search:
I, therefore, command that you search:
The residence of Timmy J. Hibbs WM DOB 06-08-64, being a one story residence located at 1308 Jefferson Quincy, Adams County, IL. This is a one story residence with gray colored siding. There is also a detached garage with the numbers " 1308" are affixed on a pillar. The entrance to 1308 Jefferson faces East and is located on the North side of the residence. The residence is located between the streets of 12th and 15th on Jefferson.
And seize: Methamphetamine, Methamphetamine precursors, equipment and instrumentalities utilized in the production of Methamphetamine, Methamphetamine related waste, Drug Ledgers, USC, proof of residency.
Law enforcement officers executed the Warrant at 7:30 p.m. on February 23, 2012. Officers searched the house and found items in the basement and living room, including a receipt for drain cleaner, syringes, a spoon, a corner cut baggie, a battery package, a small round container with an unspecified residue, and a razor blade.
Law enforcement officers also searched the back yard at 1308 Jefferson Street. The yard was fenced on three sides. Officers found two 4-wheelers and a boat in the yard. The officers searched the boat and the 4-wheelers. The evidence log indicates that the officers found several items of evidence including a bag containing 68.10 grams of methamphetamine under the seat of one of the 4-wheelers.
At the time of the search, a truck was parked on the street in front of 1308 Jefferson and a Ford Mustang was parked in the front yard. The officers brought a drug sniffing dog with them during the search. The dog alerted on both vehicles. Officers searched the vehicles and found a bag of syringes and a digital scale in the glove box of the Mustang and a black hose with a fitting

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in the truck's toolbox and an empty fuel can in the bed of the truck. Hibbs moves to suppress everything found outside of the house and garage.

III.

A.

The Defendant seeks to suppress the items found in the window well of the home. The Defendant claims that the basement window well is part of the home's curtilage, and that officers performed an unconstitutional search and seizure when they removed the items from the apparently uncovered window well.

The Defendant objects, claiming that the warrant authorized the search of the house, but did not authorize a search of the grounds, or anything found thereon.

B.

The Court concludes that the officers were authorized to search the curtilage of the home. The Court is not persuaded by Defendant's arguments regarding United States v. Griffin, 827 F.2d 1108 (7th Cir.1987). The Court recognizes that the term " premises," as it is commonly used, means a tract of land and the buildings and improvements thereon (including outbuildings). See id. at 1114-15. The undersigned has relied upon this principle in deciding suppression issues previously, as pointed out by the Defendant. See United States v. Burge, No. 11-cr-30003, 2011 WL 2457309, at *3-*4 (C.D.Ill. June 16, 2011) (Mills, J.) (citing Griffin, and holding that warrant authorizing search of rural " premises" included a clearing outside of the curtilage, about 100 yards from the trailer home).

Griffin stands for the proposition that premises include buildings and land, and that a search warrant for the premises expressly authorizes the search of both buildings and land. The Defendant argues that Griffin also stands for a corollary— that a search warrant authorizing the search of a residence does not cover the curtilage of the home, and that officers are not allowed to search, or even enter, the curtilage of such a residence.

The Court is unaware of any order or opinion from the U.S. Court of Appeals for the Seventh Circuit supporting such a broad interpretation of Griffin.

Griffin establishes that a search warrant authorizing the search of a premises explicitly authorizes a search of any area of, or building upon, the tract of land. This includes a search of an area beyond the curtilage of the residence, as happened in Burge.

When a search warrant authorizes the search of a residence, it may implicitly authorize the search of an area within the curtilage of the home.

Using the term " premises" can allow a court to quickly cut off any argument regarding the scope of the search, while using the term " residence" may require more analysis. Also, the term " premises" includes those areas that are on the property, but outside the curtilage of the residence.

So, the choice between using " premises" or " residence" in a search warrant is significant, both in terms of defining the scope of the search and in how a court might adjudicate suppression issues. However, in some circumstances, the result will be the same, because both terms can authorize the search of the exact same areas.

C.

Neither the Court nor the parties have been able to find any Seventh Circuit opinions directly on point. The Court has examined the non-binding authority cited by the parties, has conducted additional research, and concludes that the Government's position is more persuasive.

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The U.S. Court of Appeals for the Ninth Circuit has held that a warrant authorizing the search of a residence also authorizes the search of the curtilage of the residence. See United States v. Gorman, 104 F.3d 272, 275-76 (9th Cir.1996); see also United States v. Cannon, 264 F.3d 875, 880-81 (9th Cir.2001); United States v. Hinton, 33 Fed.Appx. 366, 366-67 (9th Cir.2002).

The Ninth Circuit stated the following in Gorman:

If a search warrant specifying only the residence permits the search of " closets, chests, drawers, and containers" therein where the object searched for might be found, so should it permit the search of similar receptacles located in the outdoor extension of the residence, i.e., the curtilage, such as the container in this case. To hold otherwise would be an exercise in pure form over substance.

Gorman, 104 F.3d at 275.

Other circuits have come to the same conclusion. United States v. Montieth, 662 F.3d 660, 670 n. 2 (4th Cir.2011); United States v. Pennington, 287 F.3d 739, 744-45 (8th Cir.2002); United States v. Campbell, 256 F.3d 381, 390 (6th Cir.2001) (abrogated on other grounds); United States v. Stanley, 597 F.2d 866, 868 n. 2, 869-70 (4th Cir.1979); see also United States v. Biles, 100 Fed.Appx. 484, 491 (6th Cir.2004) (" Generally, ‘ a warrant for the search of a specified residence or premises authorizes the search of auxiliary and outbuildings within the curtilage.’ " ) (quoting United States v. Watkins, 179 F.3d 489, 505 (6th Cir.1999) (Boggs, J., concurring)).

District courts have also adopted the same position. See United States v. Brown, 822 F.Supp. 750, 754 (M.D.Ga.1993); Martin v. Indiana State Police, 537 F.Supp.2d 974, 981-82 (S.D.Ind.2008) (Hamilton, C.J.); United States v. Pugh, No. 302CR69(CFD), 2003 WL 21220333, at *4 (D.Conn.2003);

In Brown, the district court explained as follows:

Given the common sense and rational approach that is to be taken in situations such as this one, the court notes that the expectation of privacy within one's home is much greater than outside in the yard. The search warrant in this case authorized intrusion into the area of highest expectation of privacy. It seems logical and reasonable that a search warrant that authorizes intrusion on this greater area of privacy would include authorization for intrusion in the lesser area of privacy, the backyard. It is a basic rule of logic that the greater generally includes the lesser....
....
Plain reading and common sense are the landmarks for the execution and interpretation of the language of a search warrant. As discussed earlier, there is no room in the midst of a criminal investigation for hypertechnical reading or interpretation of a search warrant.

822 F.Supp. at 754.

Many state courts have also adopted the approach advocated by the Government. See Brown v. State, 262 Ga. 728, 729, 425 S.E.2d 856 (1993) (" a search warrant for a residence authorizes a search of the curtilage of that residence, which includes yards and grounds and buildings" ); Sowers v. State, 724 N.E.2d 588, 589-591 (Ind.2000) (" when police obtained a valid warrant to search the residence at 801 West Neely Street, they were also authorized to search the tent in the backyard of the residence" ); State v. Ogden, 210 Kan. 510, 502 P.2d 654 (1972) (search warrant authorizing search of " white frame residence" allowed officers to search trash can located at the rear of the yard); State v. Basurto, 15 Kan.App.2d 264, 268-69, 807 P.2d 162 (1991); People v. McGhee, 255 Mich.App. 623, 662 N.W.2d 777 (2003);

Page 867

State v. Potter, 72 S.W.3d 307, 314-15 (Mo.App.2002); State v. Vicars, 207 Neb. 325, 330-31, 299 N.W.2d 421 (1980); State v. Trapper, 48 N.C.App. 481, 486-87, 269 S.E.2d 680 (1980); State v. Dalpiaz, 151 Ohio App.3d 257, 263-64, 783 N.E.2d 976 (2002); State v. Grevas, 145 Ohio Misc.2d 24, 30, 881 N.E.2d 946 (Ohio Ct.Com.Pl.2007); Ford v. State, 245 P. 909, 909-910 (Okla.Crim.App.1926); Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 881 (1928); State v. Stewart, 129 Vt. 175, 177, 179, 274 A.2d 500 (1971); Meek v. Pierce, 19 Wis. 300 (1865).

The primary case relied upon by the Defendant is United States v. Longie, 370 F.Supp.2d 941 (D.N.D.2005). In Longie, a search warrant authorized the search of a house, but the officers searched a shed 60 yards away from the residence and found a firearm. See id. at 943-44. Ultimately, the district court held in Longie that the evidence had to be suppressed because the shed was not within the curtilage of the home. Id. at 945. Alternatively, the district court held that if the shed was inside the curtilage a new warrant should have been sought. Id. at 945-46. The Defendant is relying on this alternative holding.[1]

The Court finds Gorman,Brown, and the other cases cited above to be more ...


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