United States District Court, D. Montana, Filed Billings Division
OPINION AND ORDER
SUSAN P. WATTERS, District Judge.
Defendant Candelario Alberto Garcia is charged with possession with intent to distribute methamphetamine and felon in possession of a firearm. He has moved to suppress the evidence that forms the basis of Counts I and II of the Indictment. (Doc. 22). On October 17, 2014, the Court held an evidentiary hearing on Garcia's motion. The Court heard from former Livingston Police Department (LPD) Detective Shawn Misner and LPD Sergeant John Leonard. Having read and reviewed the parties' submissions and the applicable law, and having heard the testimony of the witnesses noted above, the Court DENIES Garcia's motion.
On July 15, 2013, Sgt. John Leonard, Assistant Chief Johnson, and Detective Harris responded to a call from an assault victim at a gas station in Livingston, Montana. The victim provided Sgt. Leonard with a description and possible address for the suspect. The officers went to the address, which belonged to Garcia. Garcia admitted to the assault and Sgt. Leonard cited him with a misdemeanor. Chief Johnson and Det. Harris smelled marijuana coming from Garcia's house during the assist.
During the timeframe at issue, Det. Misner was the acting narcotics detective for the LPD and was a member of the Missouri River Drug Task Force. Two days after the assault, Chief Johnson and Det. Harris reported to Det. Misner that they smelled marijuana at Garcia's house when they were assisting Sgt. Leonard with the assault investigation. Sgt. Leonard advised Det. Misner that Garcia had a non-extraditable warrant for his arrest out of California for a probation violation, and that Garcia had a lengthy criminal history of drug and weapons charges. A couple days later, Sgt. Leonard told Det. Misner that he had spoken with Garcia's probation officer who told him that Garcia's criminal history included marijuana and methamphetamine use and distribution, and that Garcia was a "higher up" in a violent gang out of Central Valley, California, called the College Street Bulldogs. As a result of this information, Det. Misner placed Garcia's house under surveillance, but discovered nothing.
Ten days after Garcia was cited for assault, Det. Misner decided to follow up on the marijuana odor Chief Johnson and Det. Harris had detected at Garcia's house. Sgt. Leonard and Montana Highway Patrol Trooper Nilan provided assistance. The three drove to Garcia's house and parked up the block, out of sight. Sgt. Leonard and Trooper Nilan were in uniform. Det. Misner wore street clothes and a ballistic vest marked "Police" in yellow letters. All of them were armed. They walked down the sidewalk to Garcia's house. Sgt. Leonard and Trooper Nilan stopped short of Garcia's front door and remained on the north side of the house, out of sight.
Det. Misner knocked on Garcia's front door. Det. Misner noticed an open window on the front of the house and smelled marijuana coming from inside. Garcia opened the front door. He was naked. Det. Misner asked Garcia ifhe would put some clothes on and come outside to talk. Garcia said he would, went back in the house, shut the door behind him, and came out a couple minutes later fully clothed. Garcia walked down his front steps and met Det. Misner on the landing adjacent to the sidewalk. Garcia saw Trooper Nelson and Sgt. Leonard as he came down the steps and said, "Hey Leonard" to Sgt. Leonard.
Det. Misner identified himself to Garcia and told Garcia he needed to conduct a pat down. Garcia said okay. Garcia swears via affidavit that he was handcuffed at this point. Det. Misner and Sgt. Leonard testified at the hearing that no officer ever handcuffed Garcia at any point during the encounter. After the pat down, Det. Misner told Garcia that he was there because law enforcement had smelled marijuana at Garcia's house ten days earlier when investigating the assault. Det. Misner told Garcia he could smell marijuana coming from the house and asked Garcia ifhe had a Montana Medical Marijuana Card. Garcia explained he used to have a California card, but did not have a Montana card. Det. Misner asked Garcia ifhe had any marijuana on his person or in his house. Garcia said he had half an ounce of marijuana in the house. Det. Misner asked Garcia for consent to search the house. Garcia refused. Det. Misner told Garcia he was going to apply for a search warrant for the house and Garcia's Chevrolet Impala. Det. Misner told Garcia he was not allowed back in his house or in his car pending the search and that he could stay during the search but was also free to leave. Garcia opted to leave and walked away down the street. Approximately 10 minutes passed from the time Det. Misner knocked on the door until Garcia left the house.
After Det. Misner obtained a search warrant for Garcia's house and car, he and Officer Emanuel conducted a walk through to clear the area for any dangers to Officer Emanuel's drug dog. Officer Emanuel's dog, Bobi, conducted a K-9 sniff and Bobi alerted to the odor of narcotics in a bedroom at the rear of the house. Officer Emanuel directed Det. Misner to the room where Bobi had alerted. Det. Misner discovered marijuana, methamphetamine, body armor, drug paraphernalia, a pistol, and other relevant items.
Garcia argues that he was in custody when Det. Misner interrogated him without advising him of his Miranda rights and that any statements he made at that time must thus be suppressed. Garcia argues that without his statements, the search warrant application lacks probable cause and thus everything discovered pursuant to the search warrant is fruit of the poisonous tree and must be suppressed. The government opposes the motion and contends that because Garcia was never in custody, Miranda warnings were not necessary and that the search warrant was adequately supported by probable cause.
A. Whether Garcia was in Custody When He was Questioned
Garcia argues that he was in custody "almost immediately, " because three law enforcement officers came to his door, Det. Misner patted him down and began asking him questions about marijuana, and placed him in handcuffs. (Doc. 23 at 8). Even if he was not placed in handcuffs, Garcia contends he was still in custody because he was confronted with the fact his home smelled like marijuana, asked ifhe possessed marijuana, and was not told he was free to leave until after he admitted to possessing marijuana. (Doc. 25 at 8).
The first question is whether law enforcement's interaction with Garcia was a seizure or was voluntary and consensual. United States v. Crapser, 472 F.3d 1141, 1145 (9th Cir. 2007). "When an encounter is voluntary, no constitutionally protected right is implicated." United States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001). "Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200 (2002). This includes the "so-called knock and talk' exception to the warrant requirement ...