United States District Court, D. North Dakota, Southwestern Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
DANIEL L. HOVLAND, District Judge.
The Defendant, Randy Scott Skarda, has been charged with the offenses of distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c), conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and 846, distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c), possession of a short-barreled rifle in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871, and possession of a firearm by a drug user in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). See Docket No. 2. Skarda filed a motion to suppress on July 23, 2014. See Docket No. 24. He seeks an order suppressing all physical evidence seized during the search of his residence. The Government filed a response in opposition to the motion on August 6, 2014. See Docket No. 29. An evidentiary hearing was held on September 10, 2014. For the reasons set forth below, the Court denies the motion.
On October 7, 2013, FBI Special Agent Chad Coulter applied for a search warrant for property near Keene, North Dakota. The warrant application listed the premises to be searched as 10952 32nd Street Northwest, Keene, North Dakota, and included a residential building, outbuildings and vehicles on the premises. See Docket No. 26-2. In the accompanying affidavit, Agent Coulter stated he was applying for a search warrant for property associated with Randy Skarda at 10952 32nd Street Northwest, Keene, North Dakota. See Docket No. 26-1, ¶3. Agent Coulter said the driver's license and motor vehicle information from the North Dakota Department of Transportation listed Skarda's residence as 10952 32nd Street Northwest, Keene, North Dakota. See Docket No. 26-1, ¶ 15. In his affidavit, Agent Coulter provided a physical description of the location to be searched. See Docket No. 26-1, ¶ 8. This information had been provided to Agent Coulter by Lynn Starr, who indicated she had obtained methamphetamine from Skarda at his residence over the course of the past year. The description of the property noted it possibly belonged to Skarda's parents, with the house being a one-bedroom metal structure that is not painted but with water and electricity running to it. The description noted some construction was occurring to the residence, more specifically that a foundation had been poured and new walls constructed, and with insulation and finished woodwork. The description further noted there was a large metal garage or quonset next to the house and equipment about the property. Agent Coulter requested to search the premises for methamphetamine and other items associated with drug trafficking, including cell phones and media storage devices. Magistrate Judge Karen K. Klein signed the search warrant at 4:15 p.m. on October 7, 2013, listing 10952 32nd Street Northwest, Keene, North Dakota, as the premises to be searched. See Docket No. 26-4.
Prior to executing the search warrant, and while meeting and debriefing with other law enforcement officers at a convenience store near Keene, North Dakota, FBI Special Agent Coulter learned that Skarda actually lived at 10841 28th Street Northwest, Keene, North Dakota. See Docket No. 29-1, pp. 6-7. The 10952 32nd Street Northwest, Keene, North Dakota, address is that of Skarda's parents. Agent Coulter was informed of this fact by McKenzie County Deputy Sheriff Matt Johansen. Deputy Johansen lived in the same general area as the Skarda family, and he was familiar with the farmstead where Randy skarda lived. Agent Coulter then contacted federal court staff at approximately 6:02 p.m. on October 7, 2013, to inform the Court of the new information regarding the address. Court staff connected Agent Coulter to Judge Klein by telephone at 6:16 p.m. After being placed under oath by Judge Klein, Agent Coulter informed Judge Klein that the address on the search warrant application and search warrant was incorrect and the correct address was actually 10841 28th Street Northwest, Keene, North Dakota. See Docket No. 26-6. Judge Klein verbally authorized Agent Coulter to change the address on the warrant from 10952 32nd Street Northwest, Keene, North Dakota, to 10841 28th Street Northwest, Keene, North Dakota, every time it appeared in the warrant. Agent Coulter made the changes in his own handwriting and initialed those changes. The conversation between Agent Coulter and Judge Klein was not recorded. The scenario of events as described by FBI Special Agent Coulter above were confirmed by FBI Special Agent Bruce Bennett who testified at the suppression hearing on September 10, 2014. Agent Bennett traveled with McKenzie County Deputy Sheriff Matt Johansen out to 10841 28th Street Northwest in Keene, who then confirmed the address was indeed the residence of Randy Skarda. This all occurred before the search warrant was revised and executed.
The search warrant was then executed on Skarda's property at 10841 28th Street Northwest, Keene, North Dakota, at 6:58 p.m., October 7, 2013. See Docket No. 26-5. The search concluded at approximately 12:23 a.m. on October 8, 2013. A copy of the search warrant was left at the residence. See Docket No. 29-2.
On October 10, 2013, Judge Klein issued a "Supplement to Search Warrant" wherein she recited the events which lead to the address changes being made to the search warrant. See Docket No. 26-6. In her supplement, Judge Klein incorrectly noted the request for the change to the search warrant occurred on October 8, 2013, when in fact the request had occurred on October 7, 2013.
On October 25, 2013, the Government filed a motion pursuant to Rule 36 of the Federal Rules of Civil Procedure seeking to correct the "Supplement to Search Warrant" issued by Judge Klein on October 10, 2013, so it accurately reflected the precise date Agent Coulter contacted the court concerning the requested address change to the search warrant and application. See Docket No. 29-1. Judge Klein granted the motion and ordered the "Supplement to the Search Warrant" be amended to reflect that the contact between Agent Coulter and the Court actually occurred on October 7, 2013. See Docket No. 29-3.
As noted, Skarda has been charged with distribution of methamphetamine (Count One), conspiracy to distribute and possess with intent to distribute methamphetamine (Count Two), distribution of cocaine (Count Three), possession of a short-barreled rifle (Count Four), and possession of a firearm by an unlawful user of a controlled substance (Count Five). He filed a motion to suppress evidence found during the October 7, 2013, search of his premises at 10841 28th Street Northwest, Keene, North Dakota. He contends the warrant was not supported by probable cause and the failure to record the October 7, 2013, conversation between Agent Coulter and Judge Klein violates Rules 4.1 and 41 of the Federal Rules of Criminal Procedure.
II. LEGAL DISCUSSION
The Fourth Amendment provides the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV; see also United States v. Jones , 269 F.3d 919, 924 (8th Cir. 2001). The United States Supreme Court has made it clear the Fourth Amendment establishes a "reasonableness" standard. "The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pa. v. Mimms , 434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio , 392 U.S. 1, 19 (1968)).
A. PROBABLE CAUSE
Skarda contends the warrant was not based upon particularized probable cause because the information provided in FBI Special Agent Coulter's affidavit supported a search of the 10952 32nd Street Northwest address rather than the 10841 28th Street Northwest address. The Government contends Agent Coulter's affidavit was sufficient to establish a nexus between drug trafficking, Skarda, and the 10841 28th Street Northwest address. In addition, the Government contends Agent Coulter acted in good faith when he relied upon search warrant.
The Fourth Amendment requires that law enforcement officers secure a warrant based upon a finding of probable cause by a neutral and detached magistrate before conducting a search. United States v. Montes-Medina , 570 F.3d 1052, 1059 (8th Cir. 2009). Probable cause exists if the warrant application and the officer's affidavit demonstrate a fair probability that contraband or evidence of a crime will be found in a particular place. Id . "Probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules.'" Walden v. Carmack , 156 F.3d 861, 870 (8th Cir. 1998) (quoting Illinois v. Gates , 462 U.S. 213, 232 (1983)). A practical common sense determination relying on the totality of the circumstances is called for in making a probable cause ...