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United States v. Whisnant

July 26, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DOUGLAS V. WHISNANT, DEFENDANT.



VARLAN/GUYTON

MEMORANDUM AND ORDER

The defendant, Douglas V. Whisnant ("Defendant"), is charged with one count of being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1). Defendant filed a motion to suppress [Doc. 15] all evidence obtained as a result of a search of Defendant's home ("Premises") on or about March 9, 2007, on the grounds that the police unreasonably expanded the scope of their search beyond what was contemplated in the warrant by destroying several interior walls of the Premises in order to search inside those walls. Following an evidentiary hearing on the motion to suppress on May 29, 2007, Magistrate Judge H. Bruce Guyton filed a report and recommendation ("R&R") [Doc. 20] in which he recommended that the motion to suppress be denied. This matter is before the Court on Defendant's objections [Doc. 21] to the R&R.

As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R&R to which Defendant has objected. In doing so, the Court has carefully considered Judge Guyton's R&R, the underlying briefs [Docs. 15, 16], and Defendant's brief regarding the pending objections [Docs. 21]. The government has not responded to Defendant's objections and the time for doing so has passed. See L.R. 7.1(a), 7.2. For the reasons set forth herein, the Court will overrule Defendant's objections and the motion to suppress will be denied.

I. Seizure of the Interior Walls

Defendant's first objection is that Judge Guyton failed to address Defendant's argument that, by cutting holes in the interior walls of the Premises, the police effectively seized those walls, thereby exceeding the scope of warrant and rendering the entire search unreasonable. Defendant relies on Bonds v. Cox, 20 F.3d 697 (6th Cir. 1994), in support of his claim. Defendant also contends that the government has not met its burden of justifying the seizure of the walls.

In addressing the boundaries imposed upon law enforcement by the Fourth Amendment, the Sixth Circuit has held that:

[w]hen a search requires a warrant, the failure to satisfy the Warrant Clause makes the search "presumptively," if not per se, "unreasonable." The opposite, however, is neither presumptively nor absolutely true. Even when officers have complied with the Warrant Clause in obtaining authorization for a search, that does not insulate the search from challenge. While a warrant may circumscribe an officer's authority, that does not mean the officer adhered to that limitation and does not mean that what started as a particularized search did not become a general one. To satisfy the Reasonableness Clause, officers not only must obtain a valid warrant but they also must conduct the search in a reasonable manner. "The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant. . . ." In answering the fundamental inquiry of whether this search was reasonable, we of course look at "the totality of the circumstances."

Baranski v. Fifteen Unknown Agents of the BATF, 452 F.3d 433, 445 (6th Cir. 2006) (citations omitted). In addition, the United States Supreme Court has recognized that destruction of property during the execution of a lawful warrant may violate the Fourth Amendment if "excessive or unnecessary." United States v. Ramirez, 523 U.S. 65, 71 (1998). The Ninth Circuit similarly recognized that unreasonable property damage can render an otherwise lawful search unreasonable in the case of United States v. Becker, 929 F.2d 442 (9th Cir. 1991), the case Judge Guyton relied on in support of his R&R.

The Defendant is correct that Judge Guyton did not directly address Defendant's argument based on Bonds. However, Judge Guyton's analysis does correctly address the issue raised by Bonds. Bonds stands for the proposition that the government can be held responsible for damage caused during the execution of a search warrant because the government, by destroying an individual's property, effectively seizes that property, which can be a violation of the Fourth Amendment. See Bonds, 20 F.3d at 702 ("we conclude that Bonds may assert her property damage claim under the Fourth Amendment"). Accordingly, Bonds, Becker, and Ramirez all stand for a similar principle: destruction of an individual's property during the execution of a search warrant triggers a Fourth Amendment analysis. Judge Guyton engaged in this analysis and found that the police in the instant case did not act unreasonably in the execution of their search. [Doc. 20 at 8-10.] The Court agrees with Judge Guyton's analysis.

As Judge Guyton noted, the search in question was executed under the auspices of a warrant which covered "the entire premises, woods, fields, and curtilage, the residence and all out buildings and all vehicles and equipment." [Doc. 16, Attachment 2 at 19.] As the warrant did not specifically allow the executing officers to cut holes in the interior walls of the Premises, the Court must engage in a "totality of the circumstances" reasonableness analysis to determine whether the police erred in the execution of the warrant and violated the Fourth Amendment. Baranski, 452 F.3d at 445 ("The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant. . . . In answering the fundamental inquiry of whether this search was reasonable, we of course look at 'the totality of the circumstances.'").

While executing the search, the police came across a piece of framed artwork ("Artwork") mounted on a wall in the Premises. Photographs of the Artwork were admitted into evidence during the May 29, 2007, suppression hearing. [Defendant's Collective Exhibit Five.] The photographs reveal that the area behind the Artwork had been painted in a manner that can be described as haphazard, at best. The wall the Artwork was mounted on appears to have a solid, professional looking coat of paint, but the area immediately surrounding and behind the Artwork had been painted with what were described in the R&R as "fast brush strokes." The difference between the workmanship of the area immediately surrounding the Artwork and the remainder of the wall is striking, and certainly is sufficient to cause a reasonable police officer to believe that something might be hidden behind that portion of the wall.

Additionally, Detective Anderson testified at the hearing that the Artwork was the only piece of mounted art in the entire Premises. [Doc. 20 at 3.] Detective Anderson also noted that the Artwork was mounted in an unusual manner, it had been attached to the wall with four screws rather than hung on the wall. [Id.] Accordingly, based upon the totality of the circumstances, the Court finds that it was reasonable for the police to believe that something might be hidden in the wall behind the Artwork. The Court further finds that it was reasonable, and permissible, for the police to cut a hole in the wall behind the Artwork while executing the search warrant. It is true that, under Bonds, the police may have effectively seized the wall by cutting holes in it, but that seizure was not unreasonable under the totality of the circumstances and did not violate the Fourth Amendment.

Defendant also argues that the fact that the police cut holes into multiple walls of the Premises shows that they were acting at random, and had no reasonable basis for the property damage they caused. However, as the Court noted above, there was a reasonable basis for searching the wall behind the Artwork, and it was from within the wall behind the Artwork that all of the evidence was seized. Even if the police did err by randomly cutting out two other holes in the walls of the Premises, there is no indication that evidence was seized from those other holes, so there would be nothing for the Court to suppress from those potentially unreasonable searches.

Defendant also argues that the fact that no evidence was logged between 5:30 p.m. and 9:00 p.m. is further evidence that the police were randomly destroying walls in a desperate effort to find more evidence. However, Detective Anderson testified that it was during this period that the police were cutting the hole in the wall behind the Artwork and attempting to safely remove the explosives and weapons from behind the wall. [Doc. 20 at 3.] Given that explosives were found within the wall, and given Detective Anderson's testimony that the executing officers were concerned about possible booby traps within the walls, resulting in the Premises being evacuated ...


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