When should an officer obtain a search warrant and what constitutes a valid search warrant? The United States Court of Appeals for the Sixth Circuit recently had occasion to examine these issues in United States v. Church, ___ F.3d ___, 2016 WL 2865736 (6th Cir. May 17, 2016). Following the denial of a motion to suppress certain evidence against him, Defendant David Church, Jr., was convicted in the United States District Court for the Middle District of Tennessee of possession with intent to distribute hydromorphone and of being a felon in possession of a firearm. On appeal, the Sixth Circuit affirmed Church’s conviction. In so doing, the Sixth Circuit found that the search warrant established a fair probability that Church’s house contained illegal drugs, and the Sixth Circuit concluded that the police did not act unreasonably when they used a prying ram to open Church’s safe during the execution of the search warrant.
The specific facts as set forth by the Sixth Circuit are relatively straightforward and are set forth below:
In August 2012 Nashville police detectives Jeff Moseley and Daniel Bowling went to David Church’s home to serve him with a warrant for violating his probation. Church arrived at his home shortly thereafter, carrying a bag of fast food. After Moseley and Bowling established Church’s identity, they placed Church under arrest in his driveway. Church asked that he be allowed into the house to eat his food and call his girlfriend; Moseley and Bowling obliged, and accompanied Church inside with his consent. The detectives told Church that they smelled burnt marijuana in the house, and Church admitted that he had recently smoked marijuana. He proceeded to lead Bowling upstairs to show Bowling a marijuana blunt. Church then called his girlfriend, who came to the house and told police that, despite her efforts to get him to stop, Church regularly smoked marijuana at the house.
Moseley left the house to prepare a search-warrant affidavit while Bowling stayed with Church and Church’s girlfriend. In his affidavit, Moseley recounted the detectives’ visit to the house and their conversations with Church and his girlfriend. He swore that there was “probable and reasonable cause to believe that [Church’s house] is/are now in possession of certain evidence of a crime, to wit: violations of one or more of the following state laws as set forth in TCA Sections 39-12-204 [RICO], 39–14–903 [Money Laundering], and 39–17–417 [Tennessee Drug Control Act of 1989],” and he requested a warrant to search Church’s house for “controlled substances, [and] controlled substances paraphernalia,” among other things. A state magistrate issued a search warrant based on Moseley’s affidavit. The police executed the warrant that afternoon. In an upstairs closet, they found 4.8 grams of marijuana and 8 dilaudid (hydromorphone) pills, along with a safe. The police asked Church for the code to the safe. Church refused to provide it, so police used a prying ram to break in. The safe contained 800 dilaudid pills, a Smith & Wesson .40–caliber handgun, and a box of ammunition.
Church thereafter sought to suppress the evidence collected by the government during the search. The district court denied his motion. Church later pled guilty to possession with intent to distribute hydromorphone and to being a felon in possession of a firearm. The district court sentenced Church to 170 months’ imprisonment. He appeals the district court’s denial of his motion to suppress.
Id. at * 1.
On appeal, Church argued that, although the police may have had probable cause to suspect him for using drugs, the police lacked cause to suspect that he was selling drugs. Specifically, Church argued that the warrant to search his home was defective because it was issued pursuant to a police affidavit that established probable cause for the wrong crime. Church argued that the search warrant issued by the state court judge authorized a search for evidence of drug possession with the intent to distribute, but the police affidavit only showed probable cause to search for evidence of simple drug possession. Accordingly, Church argued that the evidence against him should have been suppressed based upon this defect.
Initially, the Sixth Circuit noted that search warrants target places, not people. Id. The Sixth Circuit, then, recited the law governing search warrants:
[T]o establish probable cause for a search, an affidavit must show a likelihood of two things: first, that the items sought are “seizable by virtue of being connected with criminal activity”; and second, “that the items will be found in the place to be searched.” Id. at 556 n. 6. The nexus between “criminal activity” and the item to be seized is “automatic[ ]” when the object of the search is “contraband.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 307, 87 S. Ct. 642, 18 L.Ed.2d 782 (1967); see also Black’s Law Dictionary 365 (9th ed.2009) (defining “contraband” as “[g]oods that are unlawful to import, export, produce, or possess”). Marijuana is contraband because its possession and production is prohibited under federal law and the criminal laws of most states, including Tennessee’s. See 21 U.S.C. §§ 841, 844; Tenn. Code Ann. §§ 39-17-417, 39-17-418.
A police request to search for illegal drugs therefore needs to satisfy only the second showing for a valid warrant: “a fair probability” that the drugs “will be found in a particular place.” See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). That standard is met where, for example, the affiant swears that he has seen marijuana seeds and smelled marijuana smoke inside the house to be searched. See United States v. Brooks, 594 F.3d 488, 494 (6th Cir. 2010); see also United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004).
Id. at * 2.
After reciting this law, the Sixth Circuit applied the law to reject Church’s argument. The Sixth Circuit noted that the police officer’s affidavit established that the officers had entered Church’s house and smelled marijuana, that Church showed the detectives a marijuana blunt upstairs, and that Church’s girlfriend thereafter confirmed that Church regularly smoked marijuana in the house. Therefore, there was an outright certainty, not just a fair probability, that the house contained illegal drugs. The police got a warrant to search for illegal drugs in the house, and they searched for drugs in places where drugs might normally be hidden. As such, the search was lawful.
The Sixth Circuit flatly rejected Church’s argument that the search was unlawful because the officer’s affidavit specified that the police were looking for evidence of drug distribution in violation of Tennessee Code § 39-17-417, whereas they had probable cause to search only for evidence of simple drug possession in violation of Tennessee Code § 39-17-418. Succinctly, the Sixth Circuit opined: “drugs are contraband, and the police have a right to seize them, pursuant to a search warrant, wherever they are likely to be present.” Id. For purposes of this warrant, it did not matter whether the police suspected that Church possessed marijuana, dealt marijuana, or committed some other crime. Zurcher, 436 U.S. at 555-56. What mattered was that there was a “fair probability” that marijuana was in the house, and the officer’s affidavit left no doubt of that probability. United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009).
Finally, the Sixth Circuit rejected Church’s argument that the police acted unreasonably and in violation of the Fourth Amendment when they used a prying ram to open his safe. In fact, the Sixth Circuit gave little weight to Church’s argument:
Obviously the police had the right to open the safe. “[A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.” United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 72 L.Ed.2d 572 (1982). And “officers executing search warrants on occasion must damage property in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L.Ed.2d 177 (1979). For example, if a home’s occupant refuses to admit an officer after he announces his authority and purpose, the officer may lawfully break open the door. See 18 U.S.C. § 3109; United States v. Ciammitti, 720 F.2d 927, 932-34 (6th Cir. 1983).
Here, the police did not break open the safe capriciously: they had probable cause to believe there might be drugs inside; Church refused to provide the safe’s combination; and thus the police had no choice but to open it by force. The district court was right to hold that the police acted reasonably when they did so.
Id. at * 4.
In summary, the Sixth Circuit’s holding in Church re-affirmed that, in order to show probable cause that contraband is located where an officer’s search warrant affidavit says it is, the affidavit must contain statements of fact closely related to the time of the issue of the warrant as to warrant justifying a finding of probable cause. Therefore, the more timely and more specific that an affidavit in support of a search warrant is, the more likely that a court will sustain the finding of probable cause, will uphold the issuance of the search warrant, and will refuse to suppress the fruits of the search.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.