United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE.
Nannette Therese Garrow (“Garrow”) filed a motion
to suppress. Garrow seeks to suppress evidence seized during
the execution of a search warrant of a residence that Garrow
shares with William Van Hill. (Doc. 38.) Police seized
methamphetamine and drug paraphernalia during that search.
Garrow also seeks to suppress statements that she made to law
enforcement officials about how she helped William Van Hill,
her co-defendant, prepare and sell bindles of
Court held a hearing on September 9, 2019. (Doc. 46.) The
Court ordered the parties to file additional briefing. Both
parties have filed their additional briefs and the motion now
stands ripe for decision. (See Docs. 50, 51.)
Garrow, in her motion and at the hearing, raised four issues.
Cause to Support Search Warrant
argues that the facts used to obtain a warrant to search her
and Hill's residence failed to rise to the level of
probable cause. (Doc. 36 at 4-5.) Law enforcement originally
sought to search Hill and Garrow's house looking for a
stolen X-Box 1S. Law enforcement relied on information that
it had obtained from Netflix and Charter Communications to
obtain the warrant used to search the residence. This
information showed that someone had accessed the Netflix
account belonging to the mother of the stolen X-Box 1S's
owner's right after the X-Box had been stolen. Charter
Communications provided the address that corresponded to the
IP address that had used the Netflix account. This address
matched Hill and Garrow's residence.
argues that the information obtained from Netflix and Charter
Communications resembles the information that law enforcement
receives from anonymous tips. Anonymous tips “seldom
demonstrates the informant's basis of knowledge or
veracity.” Florida v. J.L., 529 U.S. 266, 270
(2000). As a result, anonymous tips seldom give rise to
probable cause absent some sort of corroboration from law
sources of information here prove both known and reliable.
Garrow offers no reason for this Court to suspect that
Netflix or Charter Communications fabricated the information
provided to law enforcement. Garrow makes no claim that the
Netflix or Charter Communications offered law enforcement
unreliable information. This Court declines to apply the
Supreme Court's requirement to corroborate information
received from an anonymous tip to this context when the
underlying rationale for requiring corroboration remains
and Announce Rule
next contends that the law enforcement officers violated the
knock-and-announce rule when they executed the warrant. The
Supreme Court has determined that knock-and-announce
violations typically do not justify suppressing evidence
seized after the knock-and-announce violation. See Hudson
v. Michigan, 547 U.S. 586, 594 (2006); see also
United States v. Ankeny, 502 F.3d 829, 835-36 (9th Cir.
2007) (same). Garrow relies almost exclusively on the Ninth
Circuit's decision in United States v. Zermeno,
66 F.3d 1058 (9th Cir. 1995).
Supreme Court refused to decide whether suppression applies
to evidence seized after a knock-and-announce violation four
months before Zermeno. See Wilson v.
Arkansas, 514 U.S. 927, 937 n.4 (1995). The Supreme
Court addressed the issue for the first time in
Hudson, 547 U.S. at 590. This Court cannot ignore
the mandate of the Supreme Court. Thus, this Court need not
decide whether a knock-and-announce violation occurred. Even
if the law enforcement officers had violated the
knock-and-announce rule, that violation would not warrant
suppression. See Hudson, 547 U.S. at 594.
Scope of Warrant
claims that law enforcement impermissibly exceeded the scope
of the warrant. Garrow points to the search warrant
application. The application asks for law enforcement to
seize “any other evidence of crimes or
contraband.” (Doc. 36 at 8.) Garrow relies exclusively
on the Montana Supreme Court decision in State v.
Cotterell, 198 P.3d 254 (Mont. 2008). The Montana
Supreme Court considered whether a warrant that contained a
similar phrase to the warrant application here violated
either the Montana Constitution or U.S. Constitution.
Id. at 249.
aside questions of whether this Court has any reason to
follow a Montana state court decision in a criminal case,
Cotterell would not require suppression here. The
Montana Supreme Court ultimately concluded that only evidence
seized under that impermissible phrase of the warrant must be
suppressed at trial. Id. at 251. Law enforcement in
Cotterell legally had seized journals and calendars
that documented the number of game and fish killed on
specific dates. These items related to the officers'
investigation of alleged hunting and fishing violations and,
thus, did not cause invalidation of the warrant on
overbreadth grounds. Id.
law enforcement legally seized the evidence regardless of
whether the warrant application contained the phrase
“any other evidence of crimes or contraband.” Law
enforcement legally seized all of the drug paraphernalia
under the plain view doctrine. Law enforcement may seize
evidence of another crime that sits in plain view during a
valid search warrant. See Horton v. California, 496
U.S. 128, 135 (1990). Law enforcement only searched areas in
plain view or areas where an X-Box 1S could be stored or
hidden. (See Doc. 41-1 at 7.) For example, law
enforcement found drug paraphernalia in plain view in
William's bedroom, another piece of paraphernalia on the
floor next to the bed, another piece of paraphernalia in
Garrow's bedroom in a ...