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United States v. Utley

United States District Court, M.D. Tennessee, Nashville Division

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY LYNN UTLEY, JR., Defendant.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Gary Lynn Utley, Jr., was sitting in a chair at 2019-C South Main Street, Springfield, Tennessee, when the Springfield Police Department served a warrant to search the house on that property and detained Utley. During his detention, Utley voluntarily said to police that he had “a gun in my pants and a little bit of dope.” (Doc. No. 22-2 at 6.) Police then searched Utley, found the gun and drugs, and took him into custody. (Id.) The Government defends his detention because the warrant to search the house authorized the search of “all persons” on the property. Utley now moves to suppress the drugs and gun obtained during his detention as well as his statements. (Doc. No. 22, 24.) He argues that detaining him based on the “all persons” language in the warrant violates his Fourth Amendment rights. The Court agrees. However, the decision of the Supreme Court in Bailey v. United States, 568 U.S. 186 (2013) that applied its decision in Michigan v. Summers, 452 U.S. 682 (1981), allowed the Springfield Police to detain Utley within the “immediate vicinity of the premises to be searched” without any offense to the Fourth Amendment. Utley's detention pursuant to the search warrant was proper and his motion to suppress is denied.

         I. The Search Warrant Did Not Create Probable Cause

         The Court's review for probable cause is limited to the four corners of the affidavit. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). Here, the facts in the Affidavit supporting the search warrant are accepted as true to determine whether there is probable cause. United States v. Brown, 828 F.3d 375, 380-81 (6th Cir. 2016). The Magistrate's probable cause determination is given “great deference, ” and the defendant has the burden to prove that the probable cause determination was in error. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000). The parties agree that no evidentiary hearing is necessary. (Doc. No. 33.)

         A. The Affidavit

          On September 22, 2016, Detective Houston Evans applied for a search warrant from the Robertson County, Tennessee, General Sessions Court. (Doc. No. 22-1 at 4.) In his Affidavit dated September 22, 2016 (“Affidavit”), he swore that evidence of a drug crime was located at 2019 South Main Street, Lot C, Springfield, Tennessee, 37172, in the possession of Leslie Pope and Regina Guerrero. (Id.)

         Specifically, at 2019 South Main Street, Lot C, Evans stated that “multiple” Informants had made multiple controlled purchases of controlled substances over the past couple of months under the direction of the Springfield Police Department. (Id. at 5.) Evans explained that multiple confidential informants (“Informants”) observed Pope and Guerrero in possession of controlled substances in quantities consistent with resale. He then averred that within the past 72 hours only a single Informant observed Pope and Guerrero selling controlled substances and that Informant also engaged Pope and Guerrero to make one or two controlled purchases of controlled substances. (Id. at 5-6.)

         Based on this information the General Sessions Judge issued a search warrant dated September 27, 2016, for 2019 South Main Street, Lot C, Springfield, Tennessee, 37172. (Doc. No. 22-1 at 2.) The Warrant stated that the “search is to include all persons, outbuildings, outhouses and storage buildings, and all vehicles found thereon, for the aforesaid evidence.” (Id. at 3 (emphasis added)). Detective Evans executed the Warrant on September 27, 2016, at 5:15 p.m.

         B. Analysis

          Legal review of whether the “all persons” clause in the search warrant justifies detention of Utley begins with the Fourth Amendment. The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures . . . and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” To show probable cause, the officer submitting the oath or affirmation in support of the warrant must show “facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. Crumption, 824 F.3d 593, 615 (6th Cir. 2016). The affidavit must adequately describe a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004).

         The Fourth Amendment's requirement that the warrant “particularly” describe “the place to be searched, and the people or things to be seized” requires that the warrant itself contains such particularity. Groh v. Ramirez, 540 U.S. 551, 557 (2004). The particularity requirement “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Id. at 561 (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977)). “The cases on particularity are actually concerned with at least two rather different problems: one is whether the warrant supplies enough information to guide and control the agent's judgment in selecting what to take; and the other is whether the category as specified is too broad in the sense that it includes items that should not be seized.” United States v. Richards, 659 F.3d 527, 537 (6th Cir. 2011) (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999)).

         With this backdrop, courts have taken two approaches to “all persons” clauses in search warrants. The minority view (the “Georgia approach”) was set forth by the Georgia Court of Appeals. State v. Cochran, 217 S.E.2d 181, 183 (Ga.Ct.App. 1975). In Cochran, police obtained a warrant to search for “illegal drugs and narcotics” in “automobiles, on persons and in two buildings located on the premises and curtilage . . . known as the Sunshine Club.” Id. at 182. Police stopped a car leaving the club, searched a passenger of the car, and found an illegal drug. Id. Affirming the trial court's suppression of the evidence, the Court of Appeals stated that the warrant was a “general warrant” as applied to Cochran, violating the particularity requirement of the Fourth Amendment, because “he was neither listed by name specifically nor described generally, and no additional indicia of probable cause were provided at the scene of the search.” Id. at 183 (citing Willis v. State, 177 S.E.2d 487 (Ga.Ct.App. 1970) (describing a warrant that authorizes the search of “all persons” as a void general warrant)). At least three other state courts have followed this approach. Johantgen v. Commonwealth, 571 S.W.2d 110, 112 (Ky. Ct. App. 1978) (holding that a warrant that allowed search of “any other person believed to be involved in the illegal use of, possession of, or trafficking in controlled substances” at a residence is an unconstitutional general warrant); Peavy v. State, 336 So.2d 199, 202 (Ala. Ct. Crim. App. 1976) (holding that a warrant allowing the search of “each and every person in or near said mobile home” where controlled narcotics were being sold was an unconstitutional general warrant); Crossland v. State, 266 P.2d 649, 651-52 (Ok. Crim. Ct. App. 1954) (holding that a warrant allowing the search of “each and every person” at a house constitutes an unconstitutional general warrant).

         The majority approach (the “New Jersey approach”) does not view the constitutional issue raised by an “all persons” clause in a warrant as a particularity issue, but rather an issue of probable cause. State v. De Simone, 288 A.2d 849, 852-53 (N.J. 1972). The New Jersey Supreme Court analyzed a warrant to search an automobile, and allowing “all persons found therein” to be searched as well. Id. at 850. The defendant, a passenger in the car, was searched and police found illegal lottery slips on his person. Id. The court held that “the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend on the facts.” Id. It continued:

A showing that lottery slips are sold in a department store or in an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not ...

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