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United States v. Cary

United States District Court, D. Nebraska

January 2, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
LEE CARY, Defendant.

FINDINGS AND RECOMMENDATION

THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on the motion of defendant Lee Cary (Cary) to suppress (Filing No. 22). Cary is charged in the Indictment with the June 18, 2013, possession and the possession with intent to distribute gamma-butyrolactone (GBL) in violation of 21 U.S.C. ยง 841(a)(1) and (b)(1)(C). See Filing No. 15 - Indictment. Cary seeks to suppress any evidence derived as a result of the unlawful detention of an express United States Postal Service package and the illegal execution of a no-knock search warrant following a controlled delivery of the package. See Filing No. 22 - Motion.

The court held an evidentiary hearing on the motion on November 8, 2013. Cary was present for the hearing along with his counsel, Steven J. Lefler. The United States was represented by Assistant U.S. Attorney Nancy A. Svoboda. The court heard the testimony of Nebraska State Patrol (NSP) Investigator Richard Lutter (Investigator Lutter). The court received into evidence a copy of an application and affidavit for a search warrant (Exhibit 1) and a copy of a search warrant (Exhibit 2). A transcript (TR.) of the hearing was prepared and filed on November 19, 2013. See Filing No. 36. At the conclusion of the hearing, the court required the parties to submit post-hearing briefs. Cary filed a brief (Filing No. 37) on November 29, 2013, and an amended brief (Filing No. 41) on December 5, 2013. The government filed a brief (Filing No. 42) in response on December 16, 2013, whereupon the matter was deemed submitted.

FINDINGS OF FACT

On June 15, 2013, Homeland Security Special Agent A. Vincik informed Investigator Lutter, a Commercial Interdiction Unit narcotics investigator with the Nebraska State Patrol (NSP), that on June 10, 2013, Customs and Border Patrol seized a package containing GBL (Ex. 1). The package was shipped from China and was addressed to Cary at 1719 North 107 Street, Omaha, Nebraska 68114 (residence) (Ex. 1).

Subsequently, Investigator Lutter, as the investigating case agent, performed background checks, including criminal history and property ownership checks, to determine whether Cary or anyone else lived at the address listed on the package (TR. 7-9, 16). Investigator Lutter discovered Cary and Miles Cary lived at the address listed on the package and Cary's mother owned the residence (TR. 9-10, 17-18). The records indicated Miles Cary's driver's license lists the address on the package as his primary residence (TR. 9-10). Investigator Lutter did not conduct surveillance of the residence to determine whether Miles Cary actually resided at the residence (TR. 18). However, the records Investigator Lutter obtained from his investigation did not indicate Miles Cary was associated with an address other than the address where the officers would conduct the controlled delivery (TR. 19-20).

Investigator Lutter's background checks on Cary and Cary's mother did not show any criminal history (TR. 17-18). However, Investigator Lutter's background check on Miles Cary indicated Miles Cary was convicted of misdemeanor possession of a concealed weapon and felony possession of methamphetamine (TR. 9-10). Investigator Lutter noted Miles Cary was sentenced on September 24, 2012, for his misdemeanor possession of a concealed weapon (TR. 10). Investigator Lutter believes the concealed weapon was a handgun (TR. 20).

Miles Cary's criminal history concerned Investigator Lutter because Miles Cary previously had a concealed weapon in conjunction with possession of a controlled substance and the officers were about to conduct a controlled delivery of a controlled substance to the residence Miles Cary lists as his primary residence (TR. 10-11, 15). Due to Investigator Lutter's concern about the presence of a concealed weapon, he requested a SWAT team to execute the search warrant, to secure the residence, and make entry safe for the officers and people within the residence (TR. 10-11, 20). NSP written policy allows Investigator Lutter to use a SWAT team to execute a warrant and secure an area after a controlled delivery occurs (TR. 15-17). Based on Investigator Lutter's experience, SWAT is generally used only when a case involves a concealed weapons charge although NSP policy allows for SWAT's use during any controlled delivery (TR. 15-17). After receiving permission to use a SWAT team, Investigator Lutter applied for the search warrant (TR. 11-12).

Before Investigator Lutter presented the application and affidavit and search warrant to a judge, he received a call from the SWAT team leader, Investigator Alan Eberle (Investigator Eberle) (TR. 12). Investigator Eberle asked Investigator Lutter to request permission to execute a no-knock warrant to alleviate danger to the officers executing the warrant by allowing Investigator Eberle and his SWAT team to approach the residence, make entry, and secure the residence without having to compromise their positions (TR. 12-13, 20-21). Investigator Lutter testified if the SWAT team did not execute a no-knock warrant, the officers would have to stand on a porch, knock and announce themselves, and potentially open themselves to danger (TR. 13).

During Investigator Lutter's presentation of the warrant to a judge, Investigator Lutter explained SWAT wanted to execute a no-knock warrant because of the criminal history of one of the parties living at the residence to be searched (TR. 14-15). The reviewing judge allowed Investigator Lutter to amend, in handwriting, the affidavit and warrant to include a no-knock provision (TR. 14-15). Thereafter, Investigator Lutter added the following information to the affidavit: "Based on criminal history of Parties involved your affiant requests that warrant be served by NSP SWAT without knocking or announcing." (TR. 14-15; Ex. 1 - Investigator Lutter Aff.). Additionally, Investigator Lutter added to the warrant: "IT IS FURTHER ORDERED, that execution of the Search Warrant be forthwith during DAY HOURS. without knock or announcement " (TR. 14-15; Ex. 2 - Search Warrant (emphasis added for handwritten portion)). Investigator Lutter signed and dated the handwritten additions to the affidavit and warrant (Exs. 1 and 2). After obtaining the signed warrant, SWAT made a no-knock entry into the residence (TR. 16).

LEGAL ANALYSIS

Cary raised numerous issues in his motion; however, at the evidentiary hearing the issues discussed were whether the government properly detained and searched the package sent to Cary and whether there was sufficient justification to support issuance of a no-knock warrant. At the conclusion of the evidentiary hearing, the undersigned magistrate judge requested the parties limit their post-hearing briefing to the following issues: 1) the standard used to determine whether to issue a no-knock warrant and 2) whether the trigger for an anticipatory search warrant must be in the warrant, or may be in the affidavit supporting the warrant alone. See Filing No. 36 - TR. 22.

A. Detention

Cary argues the package was unconstitutionally detained and searched. See Filing No. 22 - Motion. "[S]earches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border[.]" United States v. Ramsey, 431 U.S. 606, 616 (1977). The "bordersearch exception" to the warrant requirement applies to international mail. See Ramsey, 431 U.S. ...


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