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United States v. James Elkins Carol Elkins, United States of America v. Carol Elkins James Elkins
Citation: 300 F.3d 638Docket: 00-5662, 00-5771 and 00-5772
Court: Court of Appeals for the Sixth Circuit; August 2, 2002; Federal Appellate Court
The United States Court of Appeals for the Sixth Circuit addresses an appeal from the United States regarding the suppression of evidence related to a marijuana growing operation discovered on properties controlled by James and Carol Elkins. The Elkinses, who have entered conditional guilty pleas to multiple charges, also appeal certain rulings from the district court. The court affirms in part and reverses in part the district court’s order on the admissibility of evidence. Additionally, Carol Elkins challenges the release of seized funds designated for their attorneys' fees, claiming the amount was insufficient; this order is also affirmed. In mid-1996, Memphis police received anonymous tips about a marijuana operation at two locations: 155 Scott Street and 1270 Tutwiler Avenue, James Elkins's residence. Police conducted surveillance over two months, noting the Elkinses' comings and goings and observing off-duty officers present at the Scott Street property. James Elkins admitted to employing off-duty officers for security purposes. Investigators then focused on 146 Neil Street, where suspicious activity was noted, including the presence of sheep manure fertilizer. On August 20, 1996, intensified surveillance was conducted using equipment from the Tennessee National Guard, which included thermal imaging. This technology revealed unusually high heat outputs at the Scott and Neil Street properties. During the operation, they encountered an off-duty officer guarding the Scott Street building, who confirmed his employment by James Elkins and led officers to another Elkins property on Walnut Grove, which also exhibited a high heat signature when scanned from a helicopter. Officer Frank Bell, along with Captain Terry Livingston, inspected the exterior of 2896 Walnut Grove, where they found a "No Trespassing" sign and an unpaved path leading to a neighboring apartment. They noticed a PVC pipe protruding from the building’s east wall, emitting light from a gap around it. Peering through, Bell identified marijuana leaves inside, while Livingston only noted green leaves. Officer Joe Hoing later arrived and also observed identifiable marijuana leaves. After this, Bell and Livingston continued to surveil the property while other officers worked on obtaining a search warrant. The following morning, Officers Hoing, Duane Gary, and Dion Cicinelli visited the Elkinses' home at 1270 Tutwiler, following a complaint about a marijuana grow. James Elkins denied involvement but permitted the officers to search his home, where they detected a strong odor of marijuana, although no contraband was found. Elkins consented to a search of 155 Scott, leading the officers there in his car, during which he made an unclear phone call. Upon arriving at 155 Scott, no incriminating evidence was found. Elkins verbally agreed to search the adjoining 139 Scott. After some difficulty opening a door, Carol Elkins let them in. The officers discovered marijuana, related paraphernalia, and chemicals in a cabinet. James Elkins directed them to a ladder leading to the attic, where more electric lights were found. The officers suspected a hidden space between 139 and 155 Scott and, upon Elkins's admission of its existence, he indicated a spot for minimal damage. This led to the discovery of a concealed room filled with marijuana growing equipment and remnants. Officers initially sought permission from Elkins to search 146 Neil, which he initially granted but later revoked, requesting to speak with an attorney. Despite his concerns that a search would complicate matters, the officers proceeded to prepare affidavits for search warrants for 146 Neil, 2896 Walnut Grove, and the Elkinses' residence at 1270 Tutwiler. While waiting, Officers Bell and Livingston observed a car with two Hispanic males near 2896 Walnut Grove. As one occupant, Jesus Morales, entered the building, the officers detained the other, Raul Sandoval. Morales, noticing the police presence, locked himself inside the building. Following advice from a state prosecutor, the officers forcibly entered 2896 Walnut Grove, discovering four men, including Morales, along with a large marijuana cultivation and two shotguns. After being informed of additional individuals inside, the officers conducted two more searches, utilizing a police dog to locate two men hiding in the ceiling, ultimately arresting all six occupants. The officers obtained and executed three search warrants later that day, revealing a significant marijuana operation with approximately 1300 plants and various growing equipment at 2896 Walnut Grove. At 146 Neil, they found 320 live and 700 harvested marijuana plants, along with two arrests and weapons. At the Elkinses' home, they uncovered evidence of a former marijuana operation, four pounds of marijuana hidden in a wall, and cocaine on a stairway. A subsequent search at 1270 Tutwiler for hidden compartments yielded no further findings. James and Carol Elkins were indicted on multiple drug-related offenses, including possession, manufacture, distribution of marijuana, money laundering, and firearms possession. They moved to suppress the evidence obtained during the searches and requested a Franks hearing to challenge the search warrant affidavits. The district court conducted an initial hearing on Fourth Amendment standing and later held the requested Franks hearing, reviewing testimony regarding the investigation and searches over several days. The district court issued a suppression order regarding searches related to the Elkinses. It upheld certain searches while invalidating others. Notably, the court determined that the use of thermal imaging to scan the Elkinses' buildings without a warrant violated the Fourth Amendment, leading to the exclusion of all thermal imaging evidence. However, it found that James Elkins had given valid consent for the searches of two specific properties, 139 and 155 Scott, thereby admitting the evidence obtained there. Conversely, the warrantless entry at 2896 Walnut Grove was deemed unjustified due to lack of exigent circumstances. In reviewing warrant affidavits under the Franks doctrine, the court identified material misrepresentations and excluded them from consideration. After redacting the affidavits, it concluded that the affidavit for 146 Neil still demonstrated probable cause, while those for 2896 Walnut Grove and 1270 Tutwiler did not, resulting in exclusion of evidence from those locations. The Elkinses subsequently entered conditional guilty pleas regarding the drugs seized at 139 Scott and 146 Neil, allowing for an appealable final decision, which both parties contested. The government appealed the ruling that thermal imaging constituted a Fourth Amendment search requiring a warrant, noting that most circuits had previously ruled otherwise, although the Tenth Circuit's earlier decision had been vacated. This legal landscape shifted with the Supreme Court's decision in Kyllo v. United States, which established that using sense-enhancing technology to gain information about a home's interior constitutes a search under the Fourth Amendment if the technology is not widely available to the public. While Kyllo provided strong protections against warrantless thermal imaging of homes, the current case pertains to commercial premises, where the expectation of privacy is lower, and there is limited federal precedent regarding thermal imaging of such properties. Courts should avoid unnecessary constitutional questions, as established in Spector Motor Serv. Inc. v. McLaughlin. In the case involving the Elkinses, the court determined that the outcome does not hinge on whether Kyllo's ruling applies to businesses; thus, this issue is not addressed. Assuming the district court's ruling was correct regarding the exclusion of thermal imaging evidence under the Fourth Amendment, the subsequent in-person searches of specific properties were deemed lawful, making any evidence obtained from those searches admissible. Consequently, the thermal imaging evidence is considered irrelevant. James Elkins contests the district court's conclusion that he validly consented to the police search of 139 Scott Street, asserting that his initial consent did not cover that location and that any later consent was coerced. Relevant legal principles highlight that a warrantless search is permissible if an individual with a privacy interest gives free and voluntary consent. The determination of consent's validity relies on the totality of the circumstances, with the government required to prove valid consent by a preponderance of the evidence, supported by clear and positive testimony. Factors influencing consent validity include the individual's age, intelligence, understanding of the right to refuse, comprehension of constitutional rights, duration and nature of detention, and any coercive police conduct. The court can only reverse the district court's factual finding of voluntary consent if it is found to be clearly erroneous. The district court correctly ruled that Elkins had the capacity to provide valid consent. Valid consent can be given by someone with an actual privacy interest in the location or apparent authority. In this case, Elkins, as the chief commercial tenant of the building and having exclusive access, demonstrated sufficient privacy interest. His possession of keys, personal and business property within the premises, and regular visits established a legitimate expectation of privacy. The government contends that Elkins consented to the search on two occasions: during initial discussions at his residence and during subsequent interactions at the building. Elkins initially consented only to a search of 155 Scott Street, with the scope of consent typically defined by the specific agreement. However, his broad statement allowing officers to search "anywhere they wanted" complicates the interpretation of consent. The district court expressed doubt regarding the validity of the search at 139 Scott Street based on the initial consent. Nonetheless, during interactions with the officers, Elkins voluntarily consented to the search of 139 Scott. He drove the officers to the location, showed them around 155 Scott, and verbally agreed to their request to inspect 139 Scott, which he did without any coercive actions present, as he was not handcuffed or threatened. Elkins later claimed that he felt coerced, citing an officer leading him to 139 Scott and expressing fear for his wife's safety due to the officers' agitation. The district court acknowledged a hint of coercion in his testimony but concluded there was insufficient objective evidence to support his claim, requiring more than subjective feelings of coercion to invalidate consent. The court also noted that Elkins was aware of his right to refuse consent, as evidenced by his refusal to allow a search at another property that same day. Ultimately, the district court's determination that Elkins provided free and voluntary consent to search 139 Scott Street was upheld, validating the admissibility of the evidence found there. Furthermore, the court correctly upheld the warrant affidavit for 146 Neil Street after a Franks v. Delaware evidentiary hearing, stating the necessity of striking materially false statements that were made with reckless disregard for their truth. If the remaining affidavit fails to establish probable cause, the search warrant would be invalid. The review of the district court's findings involves assessing the truthfulness of statements in the affidavit and the reckless nature of any falsehoods under a clear error standard, while materiality is reviewed de novo. Affidavits are interpreted with a commonsense approach, acknowledging that they are often drafted by non-lawyers and should not be held to overly technical standards. Minor discrepancies may indicate inadvertence rather than recklessness. In evaluating the affidavit related to 146 Neil Street, the court upheld the finding that James Elkins consented to a search at 139 Scott, allowing evidence from that search to be included in the affidavit for 146 Neil. The statement that 146 Neil is "behind" 139 Scott was deemed acceptable despite a slight discrepancy regarding the exact positioning, as the court found it sufficiently conveyed proximity to the drug location. The language did not demonstrate the recklessness required for exclusion under Franks. Additionally, the affidavit referenced an investigation into an indoor marijuana grow complaint involving both 139 Scott and 146 Neil. Although the Elkinses contested the existence of evidence for a complaint at 146 Neil, the district court's decision to retain this statement was based on its factual finding of a complaint related to the surrounding buildings, supported by officer testimony. The court concluded that it was not improper to describe 146 Neil as located behind 139 Scott, thus allowing the statement to remain in the affidavit. The affidavit indicates that police sought consent from James Elkins to search 146 Neil Street, which he initially granted but later rescinded, stating that consent would complicate matters for him. Elkins disputes having made this statement; if he did not, including it in the affidavit would violate the Franks doctrine. The district court upheld the statement, supported by Officer testimony, finding no clear error in concluding that Elkins made the remark. Additionally, the affidavit inaccurately stated that Elkins owned both 139 Scott and 146 Neil, whereas he was merely a tenant. The district court found that Elkins represented himself to the police as having control over the properties, which justified the officers’ belief and did not constitute a reckless falsehood. The affidavit noted the discovery of sheep manure near 146 Neil, which expert testimony linked to marijuana cultivation. Although the Elkinses argued the manure was closer to 137 Scott, this point was not raised at the district court level and was thus not considered on appeal. Lastly, the affidavit claimed that police received information from a confidential informant about marijuana cultivation at 146 Neil. The district court clarified that the tip was actually anonymous and deemed the reference to a confidential informant misleading, striking it from the affidavit due to its materiality. The distinction between known and unknown informants is critical, as it affects the reliability of tips, a fact the police should recognize. The court’s decision to exclude the reference to a confidential informant while retaining the anonymous tip was upheld as not clearly erroneous. The redacted affidavit was evaluated to determine if it established probable cause for searching 146 Neil. Typically, courts show great deference to warrant affidavits, but here, the review was conducted de novo due to valid redactions of false information. The affidavit contained key points: an anonymous tip about drug activity linked to 146 Neil, discovery of marijuana and growing equipment at a nearby property, ownership of both properties by James Elkins, Elkins' consent to search 146 Neil followed by his withdrawal of consent, and the presence of sheep manure fertilizer outside 146 Neil, commonly associated with marijuana cultivation. The district court correctly concluded that the affidavit demonstrated probable cause, indicating a fair probability of finding contraband or evidence of marijuana-related crimes. Additionally, the United States contested the district court's suppression of evidence from 2896 Walnut Grove, asserting that Officer Bell's actions violated the Elkinses' privacy expectations by looking into a hole around a PVC pipe without probable cause or exigent circumstances. The court deemed the warrantless entry to secure the premises illegal, leading to an invalid warrant since the affidavit showed no connection between Elkins and the property after redaction. The government countered by asserting lawful observation of marijuana plants and the existence of exigent circumstances that justified the warrantless entry. The appellate court agreed with the government, reversing the district court's ruling on the warrant's validity. Observations made by law enforcement of objects in plain view can be used as evidence if the officer has a lawful right to be in that position. Relevant case law, including Harris v. United States and Horton v. California, establishes that the officer must have legal access to the items being seized. In United States v. Dunn, the Supreme Court determined that police did not conduct a "search" when they used a flashlight to view evidence of drug manufacturing inside a barn, despite needing to cross several fences. The Court highlighted that the area viewed fell under the "open fields" doctrine, not the protected curtilage surrounding a home. In evaluating whether Officer Bell had the right to view through an opening at 2896 Walnut Grove, the Elkinses contended that he entered a protected curtilage. The district court's analysis did not clearly differentiate between the curtilage issue and whether Bell's action constituted a search. The court referenced Dow Chemical Co. v. United States, which left open the question of whether business structures could possess curtilage protections against warrantless entry. This court also has not made a definitive ruling on the potential for curtilage protections extending to areas adjacent to business structures. Precedents exist both supporting and opposing this view. Ultimately, any curtilage protections for a business may be limited by Dunn, which affirmed that police could approach the edge of a barn to observe without constituting a search. Areas adjacent to commercial buildings that are publicly accessible do not receive protection similar to curtilage under the Fourth Amendment. Police can enter parts of a business exposed to the public without violating constitutional rights, as established in *United States v. Morton*. In this case, the area next to the PVC pipe was accessible to the public, with no barriers preventing visibility from the street. The Elkinses claimed this area should be regarded as curtilage due to a "no trespassing" sign, but courts have determined such signs do not grant curtilage status to areas that lack it. While there may be instances where a business's surrounding area could be protected like a home’s curtilage, the court concluded that this doctrine does not apply here. The path next to the building was considered part of the "open fields" doctrine, allowing police access. Regarding the observation made by Officer Bell, the district court found that he violated the Elkinses' reasonable expectation of privacy by looking through a gap around the pipe. However, the court referenced *Dow*, which is not directly applicable since Bell used no special device to penetrate the building walls; he merely looked through a visible opening. Although the Elkinses have a reasonable expectation of privacy within their business interiors, this does not prevent observation from plain view. The Supreme Court precedent in *Dunn* indicates that looking into such spaces, even with some physical maneuvering, does not negate the plain view doctrine. The nature of Bell's observation was permissible, as it would have been visible to any bystander, consistent with past rulings that allow officers to observe what is in plain sight. Shining a flashlight through a gap in the defendant's closed garage doors was determined not to constitute a search under the Fourth Amendment. The observation made by Bell did not violate any privacy interests, allowing the visibility of marijuana within the building to factor into the assessment of potential exigent circumstances for a warrantless search of 2896 Walnut Grove. Exigent circumstances justify police entry without a warrant when evidence of drug-related crimes is at risk of destruction. The legality of the police's initial detention of Sandoval is pivotal; unlawful actions by police cannot create exigent circumstances. The district court found that Sandoval was detained without probable cause, which would negate the application of the exigent circumstances doctrine. However, it was concluded that the police only needed reasonable suspicion to detain Sandoval, which was substantiated by their prior observations of marijuana at the location, knowledge of the Elkinses controlling the building, and earlier findings of a marijuana operation. Additionally, suspicious activity, such as James Elkins's phone call, supported reasonable suspicion for detaining Sandoval. The police's detention, which inadvertently alerted Morales to their presence, did not invalidate the exigent circumstances doctrine. Law enforcement may employ standard investigative techniques without losing the right to conduct a warrantless search if exigent circumstances arise, provided they do not deliberately tip off suspects in a manner that circumvents the warrant requirement. Exigent circumstances justified a warrantless search in Sangineto-Miranda when police arrested a suspect who had briefly left an apartment involved in a drug transaction, knowing other suspects would likely return. The court established a two-part test for exigent circumstances: (1) a reasonable belief that additional persons are inside the premises, and (2) a reasonable belief that these individuals would likely destroy evidence of a crime. In this case, the government sufficiently demonstrated the first part, as police observed one suspect entering and exiting the apartment while another was detained. The second part of the test required detailed consideration. The police had credible reasons to suspect that the apartment contained evidence of a drug operation, supported by direct observations of marijuana and prior knowledge of the property's connection to a known drug dealer, James Elkins. The district court's conclusion that police lacked a reasonable belief in the presence of drugs was overturned due to this oversight. However, the district court also ruled that the police did not reasonably believe evidence would be destroyed, which this court disagrees with, stating that no additional evidence was necessary to establish the likelihood of destruction. Prior cases indicate that when police have objective grounds to believe suspects know they are being pursued, exigent circumstances exist to justify a warrantless search. Thus, the earlier ruling in Sangineto-Miranda supports the position that exigent circumstances were present when police arrested a suspect linked to a drug deal. The court determined that police had a reasonable belief that the suspect might destroy narcotics if alerted to their presence due to the absence of the suspect's colleague. This belief was supported by precedents such as United States v. Straughter, where exigent circumstances were recognized based on knowledge of suspects inside a house, recent arrests of co-conspirators, and communication via cellular phones, indicating potential evidence destruction. In United States v. Ukomadu, the court found exigent circumstances when suspects opened a drug shipment that had been tampered with, prompting the belief that they would act to destroy evidence. Conversely, in United States v. Radka, the court ruled that no exigent circumstances existed when police arrested a suspect far from the house, emphasizing the lack of immediate awareness of police activity by those inside. Similarly, in United States v. Haddix, the mere presence of marijuana plants did not justify a warrantless entry without evidence of imminent destruction. In the present case, the individual who entered 2896 Walnut Grove was aware of police activity and reacted by fleeing inside, providing a reasonable basis for the police's fear of evidence destruction. Consequently, exigent circumstances justified the warrantless entry to secure the premises, making the observed evidence admissible and properly included in the warrant affidavit for a subsequent search. Probable cause was established to search 2896 Walnut Grove for marijuana and drug paraphernalia, validating the warrant. The district court's Franks rulings concerning the affidavit for 2896 Walnut Grove need not be reconsidered. The government contended that the district court improperly deemed the affidavits for the Elkinses' home at 1270 Tutwiler inadequate. The first affidavit, dated August 21, 1996, detailed that officers visited Elkins's home regarding a complaint of marijuana cultivation at 139 Scott Street, whereupon Elkins invited them inside, and they detected a strong marijuana odor. The officers had significant experience identifying marijuana and had received a tip from a confidential informant about marijuana being grown at 1270 Tutwiler and an adjacent building. The district court noted that the tip was anonymous, finding a material discrepancy regarding the characterization of the informant, which suggested reckless falsity. As such, the court ruled that the "confidential informant" reference should not be considered for establishing probable cause. The ruling on materiality was affirmed as correct, and the district court's method of redacting the affidavit was questioned; however, it was concluded that only the false characterization of the informant should be removed, leaving the anonymous tip about marijuana cultivation intact. The officers' experience in identifying the marijuana smell was not disputed by the Elkinses, and the affidavit's statement regarding the odor was acknowledged as a factual basis for the search. The court identified a "significant credibility issue" regarding the actions of police officers at 1270 Tutwiler, noting they left James Elkins with an alleged marijuana smell present while leaving Carol Elkins behind, which raised concerns about potential evidence destruction. However, the court did not conclude that the officers' statement about smelling marijuana was recklessly false, nor did it summarize its findings on the affidavits related to 1270 Tutwiler. The district court's determination that the redacted affidavit was defective did not imply that the police fabricated the marijuana smell, and it emphasized that the smell alone does not guarantee a valid warrant. The court affirmed that, based on the officers' experience and corroborated testimony, the smell of marijuana contributed significantly to establishing probable cause for the warrant. Additionally, the presence of an anonymous tip alleging drug activity further substantiated the need for a search warrant, as corroborated by the officers' detection of the smell. The admissibility of the drugs and evidence seized on August 21, 1996, was upheld, and the subsequent warrant issued on August 22, 1996, was also deemed supported by probable cause. The government initiated civil forfeiture proceedings early in the case to seize assets controlled by the Elkinses. The Elkinses waived their right to an adversary due process hearing regarding the seizure of funds, in exchange for the government's agreement to release an amount determined necessary for reasonable attorneys' fees. They requested $350,950 to retain their counsel, but a magistrate judge recommended releasing only $100,000, allowing for a review of this amount for good cause. The district court increased the released amount to $150,000. Carol Elkins contended that the district court erred by not approving the full amount requested. Although the court is afforded substantial deference in setting reasonable attorneys' fees, the Elkinses argued that the decision impacted their Sixth Amendment right to counsel of choice. The court did not address this issue but found the district court's fee award reasonable given the complexities of the case, including multiple pretrial hearings and potential expert testimony. The district court's order was affirmed, including the provision for reviewing the fee amount. The court upheld the district court's suppression order regarding the warrantless search of 139/155 Scott based on consent and established probable cause for 146 Neil, but reversed its ruling on the absence of exigent circumstances for the warrantless search of 2896 Walnut Grove and invalidated the associated search warrants. The court authorized the release of seized funds for counsel and remanded for further proceedings consistent with its findings. The district court's findings in United States v. Elkins, 95 F.Supp.2d 796, 814 (W.D.Tenn.2000), are upheld as not clearly erroneous, supported by relevant case law including United States v. Kyllo and others regarding Fourth Amendment implications of warrantless searches. The court evaluated the use of thermal imaging, referencing a prior case that deemed such technology as violative of privacy expectations, though later rulings found it non-intrusive when used in certain contexts. James Elkins's prior convictions and familiarity with the legal system were significant in determining that his consent to search was voluntary. The court also discussed the relevance of the affidavit's content and the concept of "recklessness," indicating that intentional disregard is included within that term. Additionally, the court considered that the police had sought a warrant prior to the entry, negating claims of acting without justification. The findings and reasoning are consistent with established legal principles regarding search and seizure.