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State v. Ritter

August 3, 2005

UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS, APPELLANTS
v.
ERNIE RITTER; REGGY RITTER; DALE RITTER



Appeal from the District Court of the Virgin Islands (District Court Criminal No. 04-cr-00007) District Court Judge: Raymond L. Finch

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued: April 20, 2005

Before: NYGAARD*fn1, RENDELL and SMITH, Circuit Judges

OPINION

The United States of America and the Government of the Virgin Islands (collectively, the "government") appeal from the order of the District Court of the Virgin Islands granting brothers Ernie, Reginald and Dale Ritter's motion to suppress physical evidence. We will vacate the order of the District Court and remand for further findings consistent with this opinion.

I. BACKGROUND

A. Facts

In August of 2002, while conducting aerial surveillance, Officer Christopher Howell of St. Croix, Virgin Islands, working jointly with the Federal Drug Enforcement Administration High Intensity Drug Trafficking Area Task Force ("Task Force"), observed marijuana growing in a roofless stable at the rear of a house in Fredericksted, St. Croix. A man could be seen tending the plants. Officer Howell notified Task Force ground units, who entered the premises without a warrant, destroyed the growing marijuana plants and apprehended the gardener. The gardener admitted cultivating and tending the plants but denied residing in the house; no charges were filed against him. Three additional plots of marijuana plants growing in a field behind the house were also discovered and destroyed during the raid.

The following Spring, on April 24, 2003, Officer Howell received the first of two anonymous calls relating to the property previously surveilled and indicating that its residents were growing marijuana on the premises. The unidentified female caller advised Officer Howell that the "occupants of the house" -- no names were provided -- were growing marijuana "to the rear of their residence." She advised that there were "'hundreds of plants' located in the horse stables and the field adjacent to the stables." (Howell Affidavit.) Officer Howell noted the information but took no immediate action.

Two weeks later, on May 7, 2003, Officer Howell received a second call. Again, the caller remained anonymous, but Officer Howell testified that he believed it to be the same person who had placed the April call. The second call provided additional information: the informant repeated the allegation that marijuana was being grown in the back of the residence but added that she had personally observed someone carrying plants into the house, and she had heard from another person that there were at least two indoor grow rooms inside the house. The tipster, however, did not name or describe any of the residents of the house, nor did she indicate precisely where in the house plants were growing. Officer Howell did not remember asking for more specific information.

Following the second call, Officer Howell immediately applied for a warrant, basing his affidavit in support of probable cause on both the 2002 raid and the information provided by the anonymous tipster. Other than to draw upon his previous experience in 2002, Officer Howell did not undertake any additional corroborative investigation to determine, inter alia, how many individuals resided in the house at issue. The affidavit identified the property by reference to an aerial photograph ("Attachment 'A'"),*fn2 which shows a large main structure or residence with at least two outside doors visible, along with two additional structures on the premises. The warrant subsequently issued by the Magistrate Judge identified the premises to be searched as "No known number New Street Frederiksted St. Croix U.S.V.I. further pictured on Attachment 'A'",*fn3 and authorized the government to search for "marijuana and items used to process, and facilitate the growing of marijuana, i.e., lighting, air-conditioning units, ventilation units, scales and packaging materials."

Howell was one of many law enforcement officers present for the execution of the warrant the following day. However, at the suppression hearing before the District Court, he was the only witness to testify regarding the raid.*fn4 Officer Howell explained that those present on the scene included various "teams" -- entry teams (who conduct an initial sweep of the premises for people), perimeter teams (who secure the perimeter) and search teams (who conduct a more thorough search and actually seize evidence). At some point during the warrant's execution, entry team members, who were the first to infiltrate the premises, realized that the property's main structure was not a single dwelling but, rather, consisted of at least four separate apartments. The record indicates that each of the defendant brothers -- Ernie, Dale and Reginald -- occupied separate apartments, although it is not clear which of the brothers, other than Dale, was home at the time of the raid.

Despite the discovery of multiple units in the residence, after the entry teams finished their preliminary sweep, search teams were sent in to more thoroughly search the premises and collect evidence. While the record does not make clear whether Officer Howell even entered the house, he testified as to the evidence observed and seized inside.*fn5

Howell's testimony concerning the sequence of events is imprecise, but ultimately, marijuana, guns and cash were collected from various locations within the building, including the brothers' respective apartments. As predicted by the anonymous tipster, two indoor grow rooms, one downstairs and one upstairs, were discovered. Marijuana was also found growing in at least two more areas either in or outside the home. In addition, a rifle was found either laying or hanging on the bed of Ernie Ritter along with a second gun in his closet; money and drugs were found in the oven or broiler of Dale Ritter; and marijuana was discovered on Dale Ritter's person after a patdown by officers.

B. District Court Proceedings

The District Court granted the defendants' motion to suppress all physical evidence.*fn6 Although the District Court rejected defendants' contentions that the warrant was not supported by probable cause and that it failed to adequately describe the location to be searched, the Court found that, based on what the officers discovered as to the true character of the residence, the warrant did not describe with particularity the place to be searched. Citing to the Supreme Court's opinion in Maryland v. Garrison, the District Court held that the warrant was facially deficient -- in other words, the entry teams' discovery of multiple units inside the residence had essentially functioned to retroactively invalidate the search warrant. 480 U.S. 79, 86-87 (1987). According to the District Court, Howell and his fellow officers enjoyed a "windfall" but should not have acted upon it -- "Once the police officers realized the building was a multi-unit dwelling, the Court holds that the search warrant was defective for failing to specify which unit(s) were to be searched."

The government contended that the warrant should nonetheless be deemed sufficient because the "good faith" exception should have applied. The District Court rejected this argument, noting that there are four situations in which the general presumption of good faith, which generally attaches based on the mere issuance of a warrant, is negated:

(1) [when] the magistrate [judge] issued the warrant in reliance on a deliberately or recklessly false affidavit;

(2) [when] the magistrate [judge] abandoned his judicial role and failed to perform his neutral and detached function;

(3) [when] the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or

(4) [when] the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.

U.S. v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001) (citation omitted). Based on the warrant's failure to particularize the place to be searched, the District Court found the warrant facially defective and based on the fourth factor above, declined to apply the good faith exception. "When the police officers realized that there were multiple dwelling units and the search warrant gave them no guidance as to which unit(s) were to be searched, the police officers could not be said to have been executing the warrant in good faith by subsequently searching at least four different residential units." All evidence seized pursuant to the search warrant, the District Court thus concluded, should be suppressed.

II. ANALYSIS

A. Jurisdiction and Standard of Review

The District Court had jurisdiction under 48 U.S.C. § 1612; we have jurisdiction over this government appeal pursuant to 18 U.S.C. § 3731.

On a motion to suppress, the government bears the burden of showing that each individual act constituting a search or seizure under the Fourth Amendment was reasonable. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). With respect to a suppression order, we review the District Court's factual findings for clear error, see United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996) (citing Ornelas v. United States, 517 U.S. 690, 699-700 (1996)), and exercise plenary review over its legal determinations, see United States v. Coggins, 28 V.I. 241, 986 F.2d 651, 654 (3d Cir. 1993). However, when a district court, in reviewing a magistrate's determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court's decision. United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993) (citations omitted). In contrast, both our court and the district court exercise a deferential review of the magistrate's initial probable cause determination. Id. at 1205 (citing Illinois v. Gates , 462 U.S. 213, 236 (1983)).

B. Discussion

The Fourth Amendment of the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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." U.S. Const. amend. IV. The right of security in person and property afforded by the Fourth Amendment may be invaded in various different ways by searches and seizures -- here, defendants challenge the magistrate's issuance of the warrant as well as the government's execution of that warrant; however, "[i]t must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures," Elkins v. United States, 364 U.S. 206, 222 (1960).

1. Probable Cause

The threshold requirement for issuance of a warrant is probable cause. However, in reviewing the issuance of a warrant and given the historic preference expressed by our courts for the warrant process, see Johnson v. United States, 333 U.S. 10, 13-14 (1948), we are to determine whether the magistrate had a "substantial basis" for concluding that probable cause was present, Illinois v. Gates, 462 U.S. 213, 236 (1983). "[T]he Fourth Amendment requires no more." Id. The District Court, viewing the "totality of the circumstances," id., and deferring to a principle oft articulated by this Court -- that "after-the-fact scrutiny should not take the form of de novo review," see , e.g. , United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-seven Cents ($92,422.57) , 307 F.3d 137, 146 (3d Cir. 2002) (quoting Gates, 462 U.S. at 235) -- could "not find that the ...


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