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PATC Legal E-Newsletter

November 2016

By Jim Chapman, Attorney, Public Agency Training Council

Article Source | Printable Version | Follow PATC

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In United States v. Crawford, 2016 WL 6661165 (W.D. Ark. Nov. 10, 2016), Defendant Daphne Crawford moved to suppress evidence related to firearms and ammunitions seized during a search of her residence.  Crawford tendered three arguments as to why the Court should suppress the evidence against her.  After conducting an evidentiary hearing, the District Court rejected each of her arguments.  The District Court based its findings upon the follow facts that were revealed at an evidentiary hearing on Crawford’s motion to suppress.

On May 24, 2016, a verbal dispute ensued between Alan Lewis Crawford, Jr., and a waitress at Mel’s Diner in Prairie Grove, Arkansas.  The dispute reportedly arose because Mr. Crawford claimed that the waitress gave him and Ms. Crawford deficient service due to their status as Muslims and/or non-Christians.  Before leaving Mel’s Diner, Ms. Crawford allegedly looked at the waitress and stated, “people like you are the reason we kill.”  That night, an individual used the Facebook account of “Umm Ammara Khalid Daphne Crawford” to post derogatory remarks about the waitress.

Later that week, a customer of Mel’s Diner learned of the foregoing incident and posted a message on the Facebook page “Awesome Community of Prairie Grove.”  The message stated: “I would like to know the new people that are Muslim in town.  Young[,] white, Muslim, and stayed in the colonial hotel.  I would very much like to meet you.”  An individual using Ms. Crawford’s purported account responded to the post by stating, “ask and you shall receive.”  The user of the account then sent a series of allegedly threatening messages to the customer.

Based on those messages, law enforcement suspected Ms. Daphne Crawford of Terroristic Threatening under Arkansas state law and applied for a search warrant for her residence—a hotel room at Value Place in Fayetteville, Arkansas—on June 16, 2016.  The application sought digital and electronic evidence of the alleged threats, including smartphones, digital cameras, computers, and storage devices such as flash drives.  The affidavit accompanying the warrant recounted the aforementioned events, including the following list of Facebook messages allegedly sent by Ms. Crawford to the Mel’s Diner customer: (1) Crawford wanted to meet at Gaby’s in Prairie Grove; (2) Customer replied that they didn’t feel comfortable meeting alone; (3) Crawford told Customer to bring her family; (4) Crawford told Customer that her husband would show up with an AK-47; (5) Crawford told Customer her husband is a “piece of shit coward;” (6) Crawford told Customer that they have lots of guns; (7) Crawford told Customer that her husband is a former navy seal; (8) Crawford told Customer her husband will shoot him; (9) Crawford told Customer that she ought to shut her up for good now; (10) Crawford sent Customer a picture of her husband in a Middle Eastern attire kneeling with a weapon described as an assault rifle; and (11) Customer stopped talking to Crawford when the threats got violent.  Based upon this affidavit, a state court judge issued the requested search warrant, and officers executed it on June 16, 2016.

While inside Ms. Crawford’s residence, officers discovered and seized ten firearms and a large quantity of ammunition.  The firearms included semi-automatic AR-15 assault rifles, a long rifle revolver, a shotgun, and multiple handguns.  Some of the firearms were loaded, and at least one firearm was outside of its case on the ground.  Meanwhile, the Crawford’s toddler was sleeping in bed during the search.  The search also uncovered controlled substances consisting of three one-milligram clonazepam pills and an unidentified amount of marijuana wax.  The clonazepam was found on a nightstand next to the bed in which the child was sleeping, and the marijuana wax was found in the freezer.  Based on the presence of the firearms, the controlled substances, and the Crawford’s child, the officers on scene believed that they had probable cause to arrest Ms. Crawford for simultaneous possession of drugs and firearms and child endangerment.  Law enforcement officers took Crawford into custody at that time.

On June 22, 2016, a grand jury indicted Crawford on one count of knowingly transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c).  Crawford was subsequently arrested on that charge and detained at her arraignment.  On August 1, 2016, Ms. Crawford filed a motion arguing that the firearms and ammunition obtained during the search of her residence were illegally seized and should be suppressed.  The Government responded but, shortly thereafter, notified the Court that it no longer sought to introduce the firearms and ammunition into evidence at trial.  Instead, the Government would seek to introduce photographic and testimonial evidence related to the firearms and ammunition.  Given this concession, the Court found Ms. Crawford’s motion to be moot at the October 14, 2016 suppression hearing and allowed Crawford the opportunity to file a subsequent suppression motion related to the photographic and testimonial evidence.

Crawford subsequently filed a second motion to suppress and, therein, advanced three arguments.  First, Crawford contended that the search warrant was facially insufficient and that all of the evidence from the search must be suppressed accordingly.  Second, Crawford alleged that—even if the search warrant was valid—the police exceeded the scope of the warrant by conducting a general exploratory search which included seizing and cataloging the firearms and ammunition. The photographic and testimonial evidence were derivative of this expansion of the search, Crawford argued and, thus, was excludable as fruits of the poisonous tree.  Third, Crawford argued that—notwithstanding her first two arguments—the seizure of the firearms and ammunition cannot be justified under the plain view doctrine.  Additionally, Crawford contended, the photographic and testimonial evidence were derivative of the illegal seizure and, thus, were excludable as fruits of the poisonous tree.

The District Court began its analysis of Crawford’s motion by noting that “[p]robable cause exists, if under the totality of the circumstances, a showing of facts can be made sufficient to create a fair probability to be searched.” United States v. Summage, 481 F.3d 1075, 1077 (8th Cir. 2007) (internal quotation omitted).  Moreover, when the issuing judge relies solely upon a supporting affidavit to issue a search 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. O’Dell, 766 F.3d 870, 874 (8th Cir. 2014).  Finally, the defendant seeking to suppress the evidence against him bears the burden of showing, by a preponderance of the evidence, that the search warrant is not supported by probable cause. United States v. Malek, 205 WL 5494183, * 7 (D.S.D. Sept. 14, 2015).

Here, the District Court found that probable cause existed to issue the search warrant.  The District Court explained that, under Arkansas law, it is a crime to threaten to cause death or serious physical injury or substantial property damage to another person with the purpose of terrorizing the person.  The District Court specifically found that the statements that Crawford allegedly made and that were contained in the affidavit submitted in support of the warrant were sufficient to establish probable cause to issue the search warrant of Crawford’s residence.

Next, the District Court made short work of dispatching Crawford’s second argument that the police exceeded the scope of the warrant.  The District Court explained that “[t]he general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998).  “If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.” Horton v. California, 496 U.S. 128, 140 (1990).

The District Court determined that the objects identified in the search warrant were small.  For example, a flash drive can be mere centimeters in length.  So, the District Court found that executing the search warrant necessitated a thorough search, and a thorough search made it permissible for the officers to search in gun cases and ammunition boxes in conformity with the search warrant.  The Court also found no constitutional violation when the officers moved all of the firearms that they had found into a single location, ensuring that the firearms were not loaded, and photographing and cataloging them because temporarily seizing the firearms “for limited safety purposes” during the course of executing the search warrant in this case did not exceed the scope of the warrant.

Finally, the District Court rejected Crawford’s third argument that the plain view exception to the warrant requirement did not justify the seizure of the firearms and ammunition.  The District Court explained that, in order “[t]o qualify under the plain view exception, the government must prove that (1) the item is in plain view; (2) the officer is lawfully located where he may view the object; and (3) the incriminating nature of the evidence is immediately apparent.” United States v. McManaman, 673 F.3d 841, 846 (8th Cir. 2012).  “‘Immediately apparent’ requires that the agent have probable cause to associate the property with criminal activity.” Id.  “More specifically, probable cause demands that the facts available to a reasonably cautious man would warrant a belief that certain items may be contraband or stolen property or useful as evidence of a crime.” Id. “The government bears the burden of proving that this exception to the search warrant requirement applies.” United States v. Green, 560 F.3d 853, 856 (8th Cir. 2009).  If it cannot meet its burden of proving that the plain view exception applies, then the Government must establish, by a preponderance of the evidence, that an exception to the exclusionary rule (such as the inevitable discovery rule applies. Id.

In the instant case, the District Court found that the first two prongs of the plain view exception were clearly satisfied because the guns and ammunition were found in Crawford’s residence and because the warrant gave the officers authority to search even small containers in her room in order to find digital storage devices.  As for the third prong, the District Court stated that the evidence of the firearms and ammunition were useful as evidence of two crimes: (1) child endangerment and (2) terroristic threatening.  As a result, the District Court denied Crawford’s motion and opined that the evidence could be used against her.

Law enforcement officers are reminded to be as specific as possible in their affidavits that they submit in support of a search warrant in order to support a finding of probable cause.  If probable cause exists for the issuance of the warrant, the evidence resulting from the search pursuant to the warrant will generally be held to be valid if subsequently challenged on a motion to suppress.



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.





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