United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2490
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Russell Charles Seidel, *
* [PUBLISHED]
Appellant. *
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Submitted: February 17, 2012
Filed: May 1, 2012
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Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Russell Charles Seidel entered a conditional guilty plea to conspiracy to
possess with intent to distribute and distribute a controlled substance, in violation of
21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. Seidel appeals, challenging the
district court's1 denial of his motion to suppress evidence obtained through a search
warrant. Seidel argues that the warrant, based on a garbage pull conducted at his
residence, was issued without probable cause. We affirm.
1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
I. Background
On July 9, 2010, Burleigh County Sheriff's Deputy Nathan McLeish and
Morton County Assistant State's Attorney Jackson Lofgren sought a warrant to search
a residence and garage located at 410 Fourth Avenue Northeast in Mandan, North
Dakota. They appeared before Judge Donald Jorgensen in Morton County District
Court in Mandan, North Dakota. They were "seeking to search [the residence and
garage] for controlled substances, drug paraphernalia, pay sheets, currency, cellular
telephones, and any other indicia of drug traffic."
Deputy McLeish testified that on July 8, 2010, members of the Metro Area
Narcotics Task Force were at 410 Fourth Avenue Northeast "conducting . . . a trash
pull or a garbage pull." He explained that a "garbage pull" "is an investigatory tool
that law enforcement uses to gather intelligence to be used later down the road,
whether to be used for search warrants or to be used as intelligence." According to
Deputy McLeish, early that morning, the task force officers pulled the trash for the
residence at 410 Fourth Avenue Northeast, as the trash had been left out for
collection. "[T]he trash was . . . curbside waiting for pickup the next morning." The
officers only seized the trash and did not search it at that time. Deputy McLeish "went
through the garbage that was seized" "at 8:00." Deputy McLeish testified that he
found items in the garbage that "le[d] [him] to believe that there [were] controlled
substances or drug paraphernalia located at that residence," stating:
I noted that we found nine spiral bound notebook pieces of paper that
had ledgers on; people's names at the top, also right behind that were
large amounts of what appeared to be—what is my word—numbers
behind them. Some say 6100 plus 3100 equals so much, and they would
keep tacking on those numbers. One of those pieces of paper there was
actually one quarter and one-half written right next to those amounts.
Based on his narcotics training, Deputy McLeish testified that "[t]hose numbers
indicate to me that those are amounts used to keep track of how much drugs are being
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sold and how much money is being brought in for those, what we refer to as pay-owe
sheets." Deputy McLeish confirmed that those sheets are "basically a ledger of who
this person is selling drugs to and what they are being paid." According to Deputy
McLeish, he recovered drug paraphernalia from the trash, stating:
We also found a used syringe in the trash. We weren't able to get
anything from the syringe, but did notice that it was just open in the
trash, which is uncommon. People who legitimately use needles carry
sharps container and dispose of things like that normally.
I also found a metal paper clip, the one end was turned out and I
noticed there was a dark gooey substance on one end. I've seen this in
my line of work. These are commonly used to clean out pipes, marijuana
pipes, things like that. I took a sample of that brown gooey substance
and used a narcotics test kit for marijuana, and it did field test positive
for marijuana.
Deputy McLeish confirmed that "needles like [the one recovered from the trash
are] commonly used by people who are using controlled substances." "Based on what
[he] found in the trash there," Deputy McLeish concluded that "someone was using
controlled substances at that residence and also selling them out of their residence."
Deputy McLeish explained that he also had "[i]nformants and just people calling in
saying that something suspicious was going on [at the residence]." "[B]ased on [the]
trash pull," Deputy McLeish verified that "those anonymous tips appear[ed] to be
corroborated." He also stated that "the things that are listed there on the search
warrant, the controlled substances, the paraphernalia, the pay-owe sheets, currency,
and the telephones, are . . . all items that would be expected to be found in that
residence if someone were using and selling drugs out of the residence."
As to the "request to search the garage," Deputy McLeish testified that "[t]he
garage [was] actually a detached portion of the house" that "face[d] just to the south
of the residence." He confirmed that "trash coming out of the garage would probably
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be in the trash can that was searched." He also confirmed that, based on "what [he
had] seen, the drugs [were] likely in the residence or in the garage." That is why he
wanted to search "both the house and the garage."
Deputy McLeish informed Judge Jorgensen that "the occupant of this
residence" was "an individual named Russell Seidel." Although Deputy McLeish had
no experience with Seidel, he explained that "the task force does have a case file on
Mr. Seidel for drug history." Deputy McLeish stated that this was "an individual
residence."
Based on this information, Judge Jorgensen "f[ound] . . . probable cause for the
issuance of a warrant" and issued a search warrant for the premises.
On July 14, 2010, task force officers executed the search warrant. According
to ¶ 9 of the presentence investigation report, officers seized the following evidence
during the search of Seidel's residence:
$43,675 in U.S. currency; 133.05 grams of methamphetamine (98.75%
pure); 25.85 grams of cannabis; 2 LSD strips; 116 tablets of Alprazolam
(Xanax); several vehicle titles; pay/owe sheets; syringes; ziploc baggies;
pipes (both meth and marijuana); digital scale; tweezers; and snort tubes.
An arrest warrant was issued for Seidel. At the time of his arrest, Seidel possessed
$17,150 in U.S. currency, methamphetamine, a digital scale, a snort tube, foil with
residue, and two cell phones.
Seidel was indicted for conspiracy to possess with intent to distribute and
distribute a controlled substance. Seidel moved to suppress the evidence, arguing that
"there was insufficient evidence to establish probable cause for the issuance of a
search warrant for the residence and garage in question." United States v. Seidel, No.
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1:10-cr-071, 2010 WL 4065408, at *1 (D.N.D. Oct. 15, 2010) (slip copy). He
"ask[ed] that the fruits of that search be suppressed." Id. The district court denied his
motion, concluding that "[t]he recovery of drug paraphernalia from a garbage [can]
left outside a residence contributes significantly to the establishment of probable
cause." Id. at *2. The court found that "evidence of drug activity," which "included
pay-owe sheets, a syringe, and a paper clip which tested positive for marijuana"
"suggest[ed] criminal drug activity was occurring at the residence and is sufficient for
a finding of probable cause." Id. In the alternative, the court determined that "[e]ven
if probable cause did not exist for the issuance of the warrant, the good faith
exception to the exclusionary rule as announced in United States v. Leon, 468 U.S.
897 (1993), would allow admission of the evidence." Id.
After the district court denied his motion, Seidel conditionally pleaded guilty
to the charge. He reserved the right to appeal the court's denial of his motion to
suppress evidence obtained pursuant to the search warrant. At sentencing, the district
court sentenced Seidel to a mandatory term of life imprisonment.
II. Discussion
Seidel asserts that the district court erroneously denied his motion to suppress
evidence discovered in the search of 410 Fourth Avenue Northeast, Mandan, North
Dakota. Seidel contends that the search warrant lacked probable cause. According to
Seidel, items found during the garbage pull were insufficiently connected to the
residence and did not demonstrate a fair probability that drug contraband would be
found at the residence. He maintains that field-tested marijuana on a bent paper clip
did not justify issuance of the warrant. Furthermore, he contends that Deputy
McLeish's testimony that the torn notebook pages were pay-owe records was merely
his own conjecture, with no supporting facts. Seidel argues that Deputy McLeish
admitted that no information was derived from an uncased syringe found in the
garbage; therefore, no basis existed to conclude that a fair probability existed that
drug contraband would be found in the residence.
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"To determine whether probable cause exists to support a search warrant we
look at the 'totality of the circumstances.'" United States v. Reinholz, 245 F.3d 765,
776 (8th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 230, 234 (1983)). "A
warrant is supported by probable cause if there is a fair probability that contraband
or evidence of a crime will be found in the place to be searched." Id. (quotation and
citation omitted). "We assess probable cause from the viewpoint of a reasonably
prudent police officer acting in the circumstances of the particular case." Id. (internal
citations omitted). "[P]robable cause is a practical, factual, and nontechnical concept,
dealing with probabilities." Id. "The determination of whether or not probable cause
exists to issue a search warrant is to be based upon a common-sense reading of the
entire affidavit." United States v. Sumpter, 669 F.2d 1215, 1218 (8th Cir. 1982)
(quotation and citation omitted).
"Many of our cases recognize that the recovery of drugs or drug paraphernalia
from the garbage contributes significantly to establishing probable cause." United
States v. Briscoe, 317 F.3d 906, 908 (8th Cir. 2003) (citing Reinholz, 245 F.3d at 776
(brass pipe with cocaine residue and twenty syringes (four with methamphetamine
residue) found in trash, coupled with occupant's prior drug conviction, established
probable cause for search warrant); United States v. Gonzalez–Rodriguez, 239 F.3d
948, 950–51 (8th Cir. 2001) (crack pipe, baggies, and foil with methamphetamine
residue found in trash, coupled with informant's tip, established probable cause for
search warrant); United States v. Hohn, 8 F.3d 1301, 1302, 1306–07 (8th Cir.1993)
(baggie and sno-seals with methamphetamine residue found in trash, coupled with
informant's tip, established probable cause for search warrant); Sumpter, 669 F.2d at
1220–22 (baggie of marijuana found in trash, coupled with tips from informant,
neighbor, and garbage collector, established probable cause for search warrant);
United States v. Biondich, 652 F.2d 743, 744–46 (8th Cir. 1981) (baggie containing
small amount of marijuana and folded paper containing traces of opiates found in
trash, coupled with occupant's two prior drug convictions, established probable cause
for search warrant); United States v. Koons, 300 F.3d 985, 988, 991–92 (8th Cir.
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2002) (numerous marijuana stems found in trash, coupled with informant's tip,
established police officer's good-faith belief that search warrant was supported by
probable cause and validated search under Leon)). And, in fact, "our court appears
close to a blanket exception holding that trash pulls, standing alone, provide probable
cause for the issuance of a search warrant in all cases." United States v. Timley, 443
F.3d 615, 624 (8th Cir. 2006) (quotation, alteration, and citation omitted). For
example, we have held that "there was probable cause for issuance of a warrant based
solely on a trash pull that yielded forty marijuana seeds and twenty-five stems." Id.
(citing Briscoe, 317 F.3d at 908).
In the present case, "[w]e have little hesitancy in concluding a reasonable
magistrate would conclude the materials found in the trash . . . were sufficient to
establish probable cause that [Seidel's residence and garage contained controlled
substances, drug paraphernalia, pay sheets, currency, cellular telephones, and any
other indicia of drug traffic]." United States v. Allebach, 526 F.3d 385, 387 (8th Cir.
2008) (holding that "two plastic bags with cocaine residue, two corners torn from
plastic bags, Brillo pads, [and] a film canister with white residue . . . were sufficient
to establish probable cause that cocaine was being possessed and consumed in [the
defendant's] residence"). First, Deputy McLeish testified that members of the task
force conducted the trash pull at 410 Fourth Avenue Northeast—Seidel's residence.2
Second, Deputy McLeish testified that officers discovered in Seidel's trash "nine
2
Although Deputy McLeish was not present at the residence during the trash
pull, Deputy McLeish was not required to have "first-hand knowledge of every
allegation" that he testified to in support of the search warrant. Cf. United States v.
Fiorito, 640 F.3d 338, 346 (8th Cir. 2011) ("[T]here is no requirement that an affiant
have first-hand knowledge of every allegation he includes in his affidavit.") (citing
United States v. Jones, 471 F.3d 868, 874 (8th Cir. 2006) (affirming the validity of
a warrant even though "a detective other than the affiant [was] the source of the
information in the affidavit")).
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spiral bound notebook pieces of paper that had ledgers on [them]"; based on his
narcotics training, Deputy McLeish stated that those pieces of paper were "pay-owe
sheets"—"basically a ledger of who this person is selling drugs to and what they are
being paid." Third, Deputy McLeish testified that officers recovered a syringe not
properly disposed of, which indicated to Deputy McLeish, based on his experience,
that it was not being used for a legitimate purpose. Fourth, Deputy McLeish testified
that the metal paper clip recovered from the trash testified positive for marijuana and
that paper clips "are commonly used to clean out . . . marijuana pipes." As the district
court correctly concluded, all of this "evidence suggests criminal drug activity was
occurring at the residence and is sufficient for a finding of probable cause." Seidel,
2010 WL 4065408, at *2.
Finally, Seidel asserts that the district court should have granted his motion to
suppress because Deputy McLeish did not prepare a written affidavit for Judge
Jorgensen to review. According to Seidel, when a judge relies on an officer's oral
testimony instead of a written affidavit, the judge has abandoned his proper role in
assessing probable cause. In support of his argument, Seidel relies on the following
passage from Koons:
[The defendant] claims the issuing magistrate abandoned the role
of a judge. That can happen if a magistrate fails to read a warrant
application or affidavit, relies on an officer's oral testimony rather than
the written affidavit, approves a warrant without specifics as to the
objects of the search, fails to comply with legal formalities such as
required signatures, or otherwise acts contrary to law.
300 F.3d at 992 (citing United States v. Decker, 956 F.2d 773, 777 (8th Cir. 1992)).
In Decker, it was a compilation of the aforementioned facts that led us to conclude
that "the district court did not clearly err in determining that the issuing judge failed
to act in a detached and neutral manner." 956 F.2d at 777. "The district court [had]
found that the issuing judge signed the warrant without reading it and that he failed
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to note both that the prosecutor had not signed the warrant and that the warrant did
not list the property to be seized." Id. (footnote omitted). We affirmed, explaining:
The warrant's glaring omission of the items to be seized supports the
district court's finding that the issuing judge never read it. The judge's
failure to strike the words "unlawfully stolen" from the warrant further
supports this conclusion. The same can be said regarding the judge's
failure to ensure that the prosecutor had signed the warrant, as required
by Missouri law. See note 5 supra. Moreover, the judge himself
admitted that he issued "the search warrant on the strength of what the
officer told me," as opposed to relying on the written warrant and
affidavit.
Id.
In Decker, there was no indication that the officer was placed under oath prior
to testifying in support of the search warrant. Nor is there any indication that the oral
testimony was recorded. In the present case, Deputy McLeish was "duly sworn," and
his oral testimony was recorded.
Aside from Koons, Seidel has not cited any state or federal law providing that
Deputy McLeish had to provide a written affidavit in lieu of recorded, sworn oral
testimony. We conclude that Deputy McLeish's recorded, sworn oral testimony was
sufficient to support the issuance of the search warrant. Cf. Fed. R. Crim. P.
41(d)(2)(B)–(C)3 ; United States v. Berkus, 428 F.2d 1148, 1151 n.2 (8th Cir. 1970)
3
Federal Rule of Criminal Procedure 41(d)(2)(B)–(C) provides:
(B) Warrant on Sworn Testimony. The judge may wholly or partially
dispense with a written affidavit and base a warrant on sworn testimony
if doing so is reasonable under the circumstances.
(C) Recording Testimony. Testimony taken in support of a warrant must
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(applying Minnesota law and agreeing with a district court's observation that "'if there
were no affidavit or application at all, [then] the oral testimony must be transcribed
to substantiate or evidence the interview; however, if there is a reasonably adequate
complaint itself in writing, then the oral testimony should be considered for its
merit'").
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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be recorded by a court reporter or by a suitable recording device, and the
judge must file the transcript or recording with the clerk, along with any
affidavit.
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