Wednesday, December 25, 2013

The Email, Supervised Release and Probable Cause

After a jury convicted James Lykins of one count of manufacturing methamphetamine in violation of 21 U.S. Code § 841(a)(1) and one count of being a felon in possession of a firearm in violation of 18 U.S. Code § 922(g)(1) and the trial judge sentenced him to “262 months’ imprisonment”, he appealed. U.S. v. Lykins, 2013 WL 6125933 (U.S. Court of Appeals for the 6th Circuit 2013).

The Court of Appeals began its opinion by providing some background on the case:

In October 2004, [Lykins] pleaded guilty to conspiracy to manufacture and distribute methamphetamine. [He] admitted in his plea agreement that he had been a member of the conspiracy for approximately six months and had actively participated in manufacturing and distributing methamphetamine. [Lykins] was sentenced to 60 months' imprisonment, followed by five years of supervised release. [He] was released from federal custody in August 2009 and began his term of supervised release.

As a condition of supervised release, `[Lykins] was ordered to “permit a probation officer to visit him . . . at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.”’ U.S. v. Lykins, 2012 WL 1947346 (U.S. District Court for the Eastern District of Kentucky 2012) (quoting [Lykins’] release agreement)). [Lykins] also agreed to ‘”submit his person, residence and curtilage, office or vehicle to a search, upon direction and discretion of the United States Probation Office.”’ U.S. v. Lykins release agreement.

U.S. v. Lykins, supra.

The court then outlined how this prosecution arose:

[Lykins’] first two years of supervised release proceeded without major incident. But on September 12, 2011, his probation officer, John D'Alessandro, received an undated, anonymous letter stating that `[s]omeone really needs to check on Jimmy Lykins. He is out of control and needs drug tested [sic].’ Id. at *2. Prompted by this letter, D'Alessandro visited [Lykins’] residence on October 12, 2011.

D'Alessandro originally intended to conduct a home inspection, meaning he would walk though [Lykins’] home and look for anything suspicious in plain view. But once [he] arrived at [Lykins’] home, accompanied by Craig Peoples, the local sheriff, D'Alessandro changed his mind and ordered a full search. That search turned up voluminous evidence of methamphetamine manufacturing, including chemical precursors and hardware needed to make the drug. D'Alessandro also found a .38–caliber revolver in the microwave oven.

[Lykins] was arrested after the search by state officials. A federal prosecution began in January 2012, when [he] was indicted in the United States District Court for the Eastern District of Kentucky for manufacturing methamphetamine and being a felon in possession of a firearm. [Lykins] was transferred into federal custody and pleaded not guilty to all counts.

U.S. v. Lykins, supra.

That brings us to the first issue Lykins raised in his appeal – his argument that the U.S. District Court Judge erred in denying his motion to suppress certain evidence. U.S. v. Lykins, supra.  The District Court judge “held an evidentiary hearing, focusing on the facts supporting D'Alessandro's decision to order a full-fledged search, not just a home inspection.” U.S. v. Lykins, supra.

The Court of Appeals began by summarizing what the evidence presented at that hearing established about what happened before D’Allessandro arrived at Lykins’ home:

In D'Alessandro's recounting, as he was en route to [Lykins] home on October 12, 2011, he stopped by the office of the sheriff of Pendleton County, Kentucky – Peoples --to speak about an unrelated matter. When D'Alessandro mentioned his ultimate destination, Peoples mentioned that he had just received an e-mail notification from the National Precursor Log Exchange (`NPLEx’) stating that [Lykins’] wife had just purchased a methamphetamine precursor nearby.

NPLEx is an online system that tracks sales of methamphetamine precursors. The NPLEx e-mail listed [Lykins’] address as one of his wife's last known addresses. Peoples had been investigating [Lykins] and his wife for possible involvement with methamphetamine manufacturing. . . .

[W]hen Peoples received an NPLEx notice concerning an individual under investigation, it led him `to believe that if they're not preparing to manufacture methamphetamine that day, then they will maybe in the, in the next day or so.’ Suppression Hearing Transcript 154. Peoples shared these concerns with D'Alessandro. D'Alessandro suspected [Lykins] might be using or manufacturing methamphetamine in his home and set off for there with Peoples in tow.

U.S. v. Lykins, supra.

The court then described what happened after D’Allessandro and Peoples arrived at

[Lykins] home shortly after leaving Peoples' office. The car belonging to [Lykins’] wife was nowhere to be seen. D'Alessandro knocked on [Lykins’] front door, and [he] promptly answered. D'Alessandro told [Lykins] that he was concerned [Lykins] was violating his release conditions. [Lykins] voluntarily let D'Alessandro inside.

What happened next is the subject of controversy. D'Alessandro testified that, as he entered the residence, he held the door open for Peoples to come in with him. Peoples had originally gone around to the side of [Lykins’] residence. Peoples testified that he followed D'Alessandro into the residence, but that `[i]t took [him] a few minutes, seconds to get from where [he] was standing at the end of the trailer up to D'Alessandro at the front door.’ . . . .

At a proceeding in state court prior to the federal government taking over [Lykins’] prosecution, Peoples had testified that he entered the residence a few minutes after D'Alessandro. [Lykins], who testified at the suppression hearing, reported that Peoples and D'Alessandro came in separately. But under cross-examination, [he] conceded he was unsure how much time passed before Peoples entered. Weighing this evidence, the district court found `D'Alessandro walked in first and held the door open for Peoples to follow.’ U.S. v. Lykins, 2012 WL 1947346, supra.

U.S. v. Lykins, supra.

The Court of Appeals noted that these details mattered because of

what Peoples ostensibly said to D'Alessandro as they entered. [Lykins]  was cooking hamburgers, and the smell filled the home. But as Peoples testified: `First breaking through the threshold of the home, I received a smell, an odor that I knew was a chemical odor, and in this instance it was camping fuel or Coleman fuel.’ Suppression Hearing Transcript 157. 

Peoples had extensive training and experience concerning methamphetamine manufacturing, and knew that `Coleman fuel or camping fuel is one of the ingredients used in the manufacture of methamphetamine.’ . . . The smell of the fuel made Peoples suspect that methamphetamine was being cooked in [Lykins’] home.

D'Alessandro also smelled hamburgers cooking as he entered the home, but testified that Peoples drew his attention to the smell of the fuel. The district court heard a range of testimony about this brief conversation. Peoples testified that he asked D'Alessandro `if he smelled that,’ but did not recall the exact words he used. . . .

D'Alessandro initially testified during the suppression hearing that `right when we were entering the door, the sheriff tapped me on the shoulder and asked me if I smelled something’ apart from the hamburgers. . . . On cross-examination, D'Alessandro elaborated: `the sheriff indicated that he smelled what he indicated was a methamphetamine precursor. . . . When I crossed the threshold [ ] the sheriff said hey, I smell something I know could be methamphetamine trafficking.’ . . .

From this testimony, the district court found that `Peoples tapped D'Alessandro on the shoulder and asked if he smelled something. Peoples described the smell to D'Alessandro, at which time D'Alessandro distinguished the chemical odor from the hamburgers. . . . Peoples also indicated to D'Alessandro that the chemical odor smelled like Coleman fuel, a potential ingredient used to manufacture methamphetamine.’ U.S. v. Lykins, 2012 WL 1947346, supra. (footnotes omitted). 

According to D'Alessandro, once Peoples informed him of the fuel smell and its import, D'Alessandro decided to conduct a full search.

U.S. v. Lykins, supra.

On appeal, Lykins argued that the District Court judge “should have granted his motion to suppress the evidence obtained from the search of his home.” U.S. v. Lykins, supra. The opinion does not explain precisely what he argued, but it clearly was based on the premise that searching his home violated the requirements of the 4th Amendment.

The Court of Appeals noted that

`[w]hen reviewing a district court's decision on a motion to suppress, we review its findings of fact for clear error and its legal conclusions de novo.’ U.S.  v. Lyons, 687 F.3d 754 (U.S. Court of Appeals for the 6th Circuit 2012). `A factual finding is clearly erroneous when a court, on reviewing the evidence, is left with the definite and firm conviction that a mistake has been committed.” U.S. v. Gunter, 551 F.3d 472 (U.S. Court of Appeals for the 6th Circuit 2009).

U.S. v. Lykins, supra.

The court then took up the legality of the search of Lykins’ home, noting that it was

conducted without a warrant. However, because [he] was on supervised release, the warrantless search may pass constitutional muster if it was reasonable under ‘”the totality of the circumstances.”’ U.S. v. Knights, 534 U.S. 112 (2001) (quoting Ohio v. Robinette, 519 U.S. 33 (1996)).

The key circumstances in Knights were the defendant's status as a California state parolee -- which affected both his privacy interest and the government's interest in protecting the public -- and the search condition placed on the defendant's parole. See U.S. v. Knights, supra. Considering these circumstances, the search in Knights required only reasonable suspicion that criminal activity was afoot. See U.S. v. Knights, supra.

In the instant case, the district court concluded that the reasoning of Knights meant  that D'Alessandro required only reasonable suspicion before ordering the search. See U.S. v. Lykins, 2012 WL 1947346, supra. Unlike the defendant in Knights, though, , [Lykins] was on federal supervised release . . . and the search conditions on his release were less invasive than those in Knights. But based on the facts of the case before us, we need not resolve whether reasonable suspicion alone would have justified this search. Even if the standard were as high as probable cause, the search of [Lykins’] residence was constitutional.

U.S. v. Lykins, supra.

The Court of Appeals also noted that probable cause exists when an officer has

`reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion . . . [that] there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ U.S. v. Lyons, 687 F.3d 754 (U.S. Court of Appeals for the 6th Circuit 2012).  

On appeal, the government contends that four facts justify the search of [Lykins’] home: [His] prior conviction, the anonymous letter, the NPLEx e-mail, and the odor that Peoples smelled. The district court correctly concluded that the anonymous letter carries little weight in this analysis -- it simply prompted D'Alessandro to visit [Lykins’] home. . . .

But the remaining facts -- the NPLEx e-mail, [Lykins’] history of manufacturing methamphetamine, and, above all, the odor of a methamphetamine precursor -- together gave D'Alessandro probable cause to believe that criminal activity was afoot. . . .

U.S. v. Lykins, supra.

The court pointed out that its analysis “would be more complicated” if the district court judge had “clearly erred in finding that Peoples had told D'Alessandro that Peoples smelled Coleman fuel, and that this fuel was an ingredient of methamphetamine”. U.S. v. Lykins, supra.  But it could not “conclude . . . that this finding was clear error” because while the district court judge had “heard conflicting testimony on whether Peoples and D'Alessandro entered” the Lykins home together, the testimony “did not entirely overlap, but nor did they contradict one another.” U.S. v. Lykins, supra.

The court then noted that the district court judge’s

factual finding thus rests primarily on D'Alessandro's credibility. We accord great deference to a district court's credibility determination made during a suppression hearing. . . . The district court implicitly credited D'Alessandro's version of events. 

Given our due deference to the district court's findings of fact, we cannot conclude this reliance was clear error. Because the district court's factual findings remain undisturbed, so does the legal conclusion that follows from the totality of the circumstances.

U.S. v. Lykins, supra.  It therefore held that the district court judge did not err in denying Lykins’ motion to suppress.  U.S. v. Lykins, supra.  For this and other reasons, the Court of Appeals affirmed Lykins’ convictions and sentence.  U.S. v. Lykins, supra.

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