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United States v. Embry

United States District Court, D. Montana, Billings Division

May 7, 2014



CAROLYN S. OSTBY, Magistrate Judge.


On April 28, 2014, Judge Watters, in accordance with 28 U.S.C. § 636(b)(1)(B) and Rule 59(a), Fed. R. Crim. P., referred to the undersigned Defendant Howard Oran Embry's ("Embry") Motion to Suppress (ECF 9) and request for a Franks Hearing (see ECF 10 at 15) for the purposes of conducting a hearing and issuing appropriate findings and recommendations. ECF 21. Embry is charged by Indictment with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), and Unlawful User of Controlled Substance in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). See Indictment (ECF 1). [1] His pending motion seeks to suppress evidence obtained from a search of his apartment conducted by law enforcement on January 21, 2013. ECF 9.

Embry asserts that the evidence obtained from the January 21, 2013 search should be suppressed because: (1) law enforcement entered his home without a valid warrant and without proper consent; (2) the warrants eventually obtained lacked probable cause or were otherwise invalid for failure to follow Federal procedure; and (3) if the warrants were valid, law enforcement went beyond the scope of the warrants by searching closed containers within the apartment. See Embry's Br. in Support of Mot. to Suppress and Dismiss (ECF 10). Embry's request for a Franks hearing seeks to test the veracity of the statements made by Detective Ken Tuss in the warrant application. Id . at 15.

The Court held a hearing on May 5, 2014. At the hearing, the parties agreed to present together the evidence and argument pertaining to both the request for a Franks hearing and motion to suppress. Having considered the parties' arguments and submissions, the Court issues the following findings and recommendations, first addressing the request for a Franks hearing, and then addressing the motion to suppress.


The Court heard testimony from Sergeant Brian Korrell, Detective Mike Robinson, and Detective Ken Tuss - witnesses called by the United States - and Rachel Kynett, Lea Drosten, Teal Blank, and Embry - witnesses called by the defense. The following facts, taken from the hearing testimony and exhibits attached to the parties' briefs, are undisputed except where specifically indicated.

On January 21, 2013, Billings Police Department dispatch received a phone call from Lea Drosten, manager of the Colton Heights Apartments. Colton Heights is an apartment complex comprised of seven buildings. Four of the buildings, located near 24th Street, are identical in appearance, each having two exterior entrances and a hallway that leads to the front door of the individual apartments. Embry resided in Apartment #1 in one of these buildings - specifically at 2001 24th Street West, Apt. 1, Billings, Montana, 59102.

In her call to dispatch, Drosten indicated that an anonymous source had reported to her that the tenant in "Apartment #1" had received a large quantity of marijuana the night before, and that it was being kept in the master bedroom closet. Drosten reported that Embry resided in Apartment #1, and that she and a maintenance employee had smelled marijuana odor coming from this apartment on the evening prior. She also indicated that when she had asked Embry about the odor, Embry had informed her that he had a medical marijuana card.

Based on this information, Sergeant Korrell ran a query on the status of Embry's medical marijuana card in the Montana state medical marijuana database using the name "Howard Embry." The search report confirmed that Embry did have a medical marijuana card, and indicated "PATIENT/Y" and "STATUS/DENIED." Korrell testified at the hearing that he assumed "denied" status meant that the card was invalid, but that he did not know for sure what the word "denied" implicated, and that he had received no training in how to interpret these queries. He also stated that he called to confirm with the state whether Embry's card was valid, but could not reach anyone, presumably because January 21, 2013, was a legal holiday and the office was closed.

After running this initial query, sometime in the early afternoon of January 21, 2013, Tuss, Korrell, and Detective Mike Robinson went to Embry's apartment to do a "knock and talk." Korrell initially stood around the corner out of view and Tuss and Robinson knocked on Embry's door. When Embry answered the door, Tuss informed him that law enforcement had received a complaint about the smell of marijuana coming from his apartment. Embry stated that he had a medical marijuana card and acknowledged that he had marijuana in his apartment. At Tuss's request, Embry retrieved his medical marijuana card, which he kept in a small jar along with his medical marijuana, and showed it to the officers. Embry told the officers that he possessed less than an ounce of marijuana.

Tuss took Embry's medical marijuana card, walked down the hall, a requested a second query of the card's status, this time using the card number to run the query. This second query resulted in an identical report of Embry's medical marijuana profile, also indicating "Patient/Y" and that the "status" was "denied." A photocopy of Embry's card indicates that it was issued on June 13, 2012, and expired on May 15, 2013, and further indicates that the "Registered Cardholder is His Own Provider." See ECF 17-2. The card also reflected Embry's old address of 1917 10th Avenue North in Billings.

Tuss informed Embry that his medical marijuana card was denied or invalid, and asked if he could enter the apartment to ensure that Embry possessed only the allowed amount. Embry refused Tuss's request to enter. Detective Robinson then asked Embry if he grew his own marijuana. Embry indicated that he did not and instead received marijuana from a provider.

The officers asked a second time for consent to search Embry's apartment, which Embry again denied. They then informed Embry that they would get a search warrant and that Embry was required to vacate the apartment in the meantime. Before Embry left the apartment complex, the officers performed a safety sweep of the residence, walking through the living room and both bedrooms. Each officer indicated that the purpose of a security sweep is to secure the apartment for officer safety and to ensure there is no one else present who might destroy potential evidence.

Embry testified that he asked the officers to inform him when they had obtained a search warrant and requested he see it before the search took place. He testified that the officers searched his person before he was allowed to leave. Embry started to lock the door before he left, but the officers suggested he leave it open. Embry testified that he locked it anyway and left the apartment complex.

Embry testified that shortly after he left, he passed Drosten, the apartment manager, going into his building. He testified that he followed Drosten back toward the door of his apartment, waited around the corner, and heard Drosten use a key to open his locked door. He then walked around the corner to look through the laundry window and confirmed that the officers were no longer in the hallway.

The officers stated at the hearing that they did not enter the apartment after the sweep until they had obtained the search warrant. Instead, the officers testified that Tuss left to prepare the search warrant application, Korrell left and went to the office, and Detective Robinson, assisted by a uniformed patrol officer, remained at the residence. Drosten testified that she did not let the officers in to Embry's apartment until they had returned with the search warrant.

In the search warrant application, Tuss states that there exists probable cause to search Embry's residence for evidence of criminal possession of dangerous drugs, and criminal possession of drug paraphernalia, in violation of state law. See ECF 10-1. The search warrant application erroneously identifies the place to be searched as "2011 24th Street West Apartment #1." The application identifies this incorrect address two additional times, but also indicates that the anonymous tip identified "2001 24th Street West Apartment #1" as the apartment containing the large amount of marijuana. The search warrant also identifies the incorrect 2011 24th Street West address as the place to be searched. At the hearing, Tuss testified that the incorrect addresses were due to his own drafting error, but stated that he had personally visited the apartment earlier that same day and had another officer remain at the correct apartment the entire time he was preparing the application. Tuss indicated that, despite the incorrect address on the face of the warrant, he knew which apartment was the target of the search.

Tuss testified that he did not submit the warrant application to an attorney for review prior to submitting it to the state district court judge.

Based on the application, the state judge executed a search warrant, authorizing the officers to search Embry's residence for evidence of criminal possession of dangerous drugs and criminal possession of drug paraphernalia. See ECF 10-1 at 6-8. The scope of the items to be seized pursuant to the search warrant included, among other things, methamphetamine, cocaine, marijuana and ecstasy; papers relating to the transportation, ordering, purchasing, trafficking of controlled substances; cell phones and cell phone records; records of travel; weapons and firearms; and "[a]ny items that are contraband and are fruits of, have been used in the commission of, or may constitute evidence of these crimes[.]" Id.

Tuss returned to Embry's apartment with the search warrant, Drosten gave the officers a key to enter, and the officers performed a search of the residence. The officers found a suitcase containing seven large heat-sealed bags filled with what they suspected to be marijuana. They also found a handgun in the side pocket of the suitcase and several large bundles of cash estimated to be in the amount of several thousand dollars.

Based on the cash located during the search, Tuss prepared a second search warrant application. Tuss testified that because the original warrant did not explicitly authorize the seizure of proceeds from drug distribution, the officers decided to obtain a second search warrant before seizing the cash found in Embry's apartment. This second application sought a warrant authorizing the search and seizure of all evidence associated with the crimes of criminal possession of dangerous drugs, drug paraphenalia, and evidence of criminal distribution of dangerous drugs, including "[p]roceeds of dangerous drug sales..." ECF 10-1 at 10. The state judge executed a second search warrant based on this second application.

Tuss returned to the apartment with the second warrant. The officers testified that they did not perform an additional search pursuant to the second warrant, but "tidied up" and then seized the marijuana, gun, and cash along with other evidence, and left two signed and dated property receipts in the residence.


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