United States v. Milo Ayen
997 F.2d 1150
6th Cir.
1993
Check Treatment

*1 America, of STATES UNITED

Plaintiff-Appellee,

v. AYEN, Defendant-Appellant.

Milo 92-1735.

No. Appeals, of Court States

United

Sixth Circuit. 29, 1993.

Argued Jan. 23, 1993. June

Decided (briefed), Watford-McKinney

Yvonne V. (argued), Peregord Office of the Jennifer J. Parker, Detroit, MI, Atty., L. U.S. Janet MI, Atty., Bay City, plaintiff- for Asst. U.S. appellee. briefed), (argued and A. Brisbois

William Brisbois, MI, Saginaw, & for defen- Brisbois dant-appellant. SILER, RYAN Circuit

Before: and LIVELY, Judge. Judges; Senior Circuit SILER, Judge. Circuit Ayen appeals G. the denial Defendant Milo suppress pretrial of his motion to evidence. plea guilty to He entered conditional manufacturing marijuana, charge viola- 841(a)(1), reserving § of 21 U.S.C. tion appeal, under Fed.R.Crim.P. right 11(a)(2). is whether evidence The issue suppressed due to been false have should upon in the which the affidavit statements For the reasons warrant based. search *2 herein, we by AFFIRM the the district order In order to corroborate the informants’ statements, court. Vetter stated in the affidavit that (1)

he: ran a file check through LEIN and obtained showing information Ayen that Ole I. owned a 1982 Chrysler LeBaron, which is a (2) type; K-car personally observed a white 12, 1990, September On a state search Chrysler and red K-car and Honda four- by warrant was judge issued a state and was parked wheeler in front of the 10346 South premises executed on the of 10346 South home; (3) Blair Road phoned Consumer’s Road, Blair Washington Township, Gratiot Power Company and was informed that Ole County, Michigan. Defendant resided at this Ayen’s usage electric had been running ap- mother, location with his the owner of the proximately 600 kilowatt per hours month property. The search warrant listed the fol- higher home, than comparable a which could (1) (2) lowing marijuana; items be seized: (4) be due to the use lamps; of heat contact- (3) cash; records, written telephone such as ed the Drug Enforcement Administration bills, bills, power letters or other documenta- (“DEA”) Detroit, in and was informed that (4) tion; (5) firearms; and equipment used to Ayen’s Ole appeared name on a list the DEA (A facilitate growth marijuana. the copy compiled had in its “Green opera- Thumb” A.) of the is Appendix affidavit attached as tion, which targeting involved individuals who County Gratiot Sheriff Detective Michael marijuana purchased Holland; (6) from and Vetter stated the supporting in affidavit that determined, by reviewing County Gratiot 7, 1990, September on person a male who records, Department Sheriff's an that acci- identify declined to safety himself for reasons shooting dental of a child occurred on the (1) informed Vetter that: he had been to the Ayen property in 1988. Ayen “Ole James residence”1 at 10346 South warrant, The search by executed state offi- 6, 1990, Blair Road September on and ob- cers, produced: potted marijuana plants; served a “large growing marijuana indoor marijuana plants; marijuana burned produc- operation in Ayen’s the basement of Ole resi- seeds; tion equipment; paraphernalia; fire- dence”; (2) upstairs of the one bedrooms was arms; records, and including receipt a of a converted marijuana into a growing room purchase of seeds from Holland. Defendant (3) lights timers; with Ayen and Ole orders charged was in state court violating with marijuana (4) Holland; female seeds from he Michigan’s controlled law. De- substances had seen Ayen Ole and another individual fendant’s counsel moved suppress the evi- place pounds marijuana ten behind a hid- dence, claiming the affidavit contained nu- panel den in trunk Ayen’s of Ole Chrys- merous false prosecution statements. The (5) K-car; ler Ayen Ole uses the K-car to did oppose not suppressing evidence, so transport marijuana (6) money; and Ole defendant’s dismissed, was case without a Ayen keeps weapons house; loaded in the hearing on the motion. (7) and Ole Ayen boy shot a young on the Later, defendant was in indicted federal Ayen property. court, and he quash moved to the search Vetter in the stated that on affidavit Au- warrant and suppress seized, the evidence 13, 1990, gust he had complaint received alleging that the affidavit inten- contained from an unnamed female tionally informant who stat- false misleading and information and Ayen ed that hauling Ole was marijuana probable on a held, lacked hearing cause. A four-wheeler property, around his and fur- required by Delaware, as Franks v. ther he 154, that Michigan contacted the (1978). State 98 S.Ct. 57 L.Ed.2d 667 police and September was advised on Vetter testified at hearing that he had 1990,that unnamed three police informants advised been a for approximately officer twen- trooper a state Ayen that Ole was growing ty-one years; participated had over one in marijuana at South warrants; Blair Road. search hundred served had as 1. Ole Ayen James is the elsewhere, deceased Ayen. father of defen- of defendant Milo He lived Ayen. Ayen dant Milo living Laingsburg, Ole J. is Michigan. brother hundred search war- appear

the affiant in over one not on this list but the last name directly rants. had worked with Gra- “Ayen” appear. did Vetter testified that he County tiot Assistant Prosecutor Keith did not any notice inaccuracies after he read preparing Kushion in search warrant affida- pages. the first two on vits at least one hundred occasions in the *3 The district court denied defendant’s mo- past. prepared Kushion had the affidavit for quash tion to the search sup- warrant and the instant search warrant from Vetter’s In- evidence, press the finding that the inaccura- Report, cident from conversations with Vet- cies in the search warrant were not made ter, through and from information obtained intentionally or disregard with reckless for Raymond. Undersheriff Neal the truth. being prepared, As the affidavit was Vetter police helicopter flying in a was over the II. South Blair The property. Road aircraft was findings by Factual a district court equipped designed with a device to discover should not be reversed clearly unless errone heat, high indicating marijuana levels of 62(a). ous. Fed.R.Civ.P. A factual finding However, growing indoors. no unusually only clearly will when, be although erroneous high level of heat was detected. Vetter it, there is evidence support “the review abnormal, thought this to be as the device ing court on the entire evidence is left with radiating surrounding detected heat from the the definite and firm conviction that a mis Thus, Ayen’s homes. he determined that take has been committed.” Anderson v. City house, building, a brick was well insulated or 664, 573, 105 City, Bessemer 470 U.S. S.Ct. equipped type with some of ventilation. Vet 1504, 1511, (1985) 84 L.Ed.2d 518 (quoting however, not, ter did include this information United Co., States v. Gypsum United States in the affidavit. 364, 395, 525, 541, 333 U.S. 68 S.Ct. 92 L.Ed. fly-over, After the returned to (1948)). 746 office, Kushion’s as the affidavit being was printed. pages, the Vetter read first two but III. three, page never read because he was dis- Statements in an affidavit that are by a radio communication tracted which an- intentionally false or made with reckless dis adjacent property nounced that to the one regard for the must truth be stricken. question burning. was Vetter believed that Franks, 155-56, 438 U.S. at 98 S.Ct. at 2676. destroyed marijuana being proceed- and setting After aside the affidavit’s false mate immediately ed to the magistrate. local rial, if remaining the content of the affidavit None of the information on the first two is insufficient probable cause, to establish the pages Further, was false. the search war- search warrant must be voided and the fruits flawed, rant itself was not as it described of the search must be suppressed. Id. at with particularity premises to be 156, 98 S.Ct. at 2676. Defendant must estab searched. by preponderance lish a of the evidence that: following The errors in the affidavit were (1) the statements intentionally were made or (1) hearing: discovered in the Franks Ole (2) disregard truth; with reckless for the Ayen at did not reside 10346 South Blair falsity disregard deliberate or reckless is that Road, but had been deceased approxi- for informant; of the affiant and and not.of (2) mately years; ten defendant did not own (3) negligence or innocent mistake does not K-car, Chrysler did; 1982 but his mother falsity. 156-71, account for the Id. at 98 (3) usage defendant’s electrical had not been Moreover, S.Ct. at 2676-84. the deliberate running higher comparable home, than a as falsehood must be material. United States v. the information was utility derived from a (6th 170, Campbell, Cir.), 878 F.2d cert. check on the rather address than on the denied, 110 S.Ct. name; (4) customer’s marijuana DEA’s in- (1989). L.Ed.2d 194 vestigation “Operation was called Green Merchant,” rather “Operation than Green The district court’s determination Thumb”; (5) Ayen’s Ole first name did that each of the mistakes was unintentional ments, disregard for and was not made with reckless which were probable material to a clearly the truth was not The finding. erroneous. cause The court held that the affi court credited Vetter’s and testi- Kushion’s davit being insufficient without the falsities First, mony following. to find the Vetter must fail and the fruits search must be attempted to corroborate the informant’s tes- suppressed. affiant], “Because by [the his timony Chrysler being that a K-car was used testimony, own admitted that the statements marijuana transport by personally observ- untrue, in his affidavit were statements that ing running the vehicle and a “computer clearly affidavit, are material to the we find check” on its plate. license Vetter knew that the district court’s determination that computer from the that the car belonged to there intentionally were no false statements though defendant’s mother even it was trans- any nor statements made in reckless disre *4 by lated Kushion in the affidavit that the gard for the truth clearly was erroneous.” Second, belonged automobile to defendant. Id. 905 F.2d at 934 (citing United States v. during investigation Vetter discovered his Henson, 1374, (6th 848 Cir.1988), F.2d 1381 (the brother) Ayen that “Ole” did not reside denied, 1005, 109 784, 102 cert. S.Ct. address, at the South Blair Road but instead (1989)). Thus, L.Ed.2d 776 argues defendant Third, Laingsburg, Michigan. in lived exi- that many Vetter testified that of the state circumstances, gent developed which as the false, in ments the affidavit were but the printing, justified affidavit was the careless- improperly district court held that there was Moreover, on part. ness Vetter’s Vetter no disregard reckless for the truth. justifiably gone could have property to the however, government argues, The that set a reasonably without warrant since he ting inaccuracies, aside the the search war thought may there be the destruction of evi- rant is probable sufficient to show cause. taking place. dence See United States v. agree. The We material fact in the affidavit Sangineto-Miranda, 859 F.2d was that a marijuana substantial indoor (6th Cir.1988). Thus, the court determined growing operation was observed at the loca “[t]his that is not a in situation which a court by anonymous tion two informants. Vetter reasonably can conclude that there has been attempted to corroborate the informants’ a wholesale abandonment of the responsibili- statements. The search warrant was for the present proper ties of an affiant to a docu- Further, premises, person. not the immate ment accuracy and to swear to the of it under (1) rial information included whether: the Accordingly, oath.” presence printed “the of person conducting drug operation the given inaccuracies and the lack of attention (2) Ayen defendant; Ole or the K-car be page three were both inadvertent.” mother; (3) longed Ayen to Ole or his Ole Fourth, the emanating absence of heat from Ayen Ayen marijuana or another had seeds along defendant’s high utility house with the delivered to the South Blair property; Road bills could lead to the inference that “an (4) emanating heat was from 10346 grower gone indoor great lengths had South Blair Road. Defendant cannot suc energy either to conserve or to hide heat challenge ceed in his to the search warrant emissions or both.” recog- The district court by demonstrating negligence, non-material procedure partially nized the reading of an carelessness, and innocent mistakes. See improper, affidavit to be but found this action Cummins, United States v. 912 F.2d to be careless rather than reckless. (6th Cir.1990). 102-03 however, argues, Defendant that the inac- Although may there in have been insufficient curacies the affidavit were intentional and probable support cause to the issuance of disregard made with reckless a for the truth. Bennett, In upon United States v. search warrant based the statements on 905 F.2d 931 (6th Cir.1990), affidavit, pages of the alleged the affiant in the first two the truth- the search portions page warrant affidavit that an ful three of the can informant affidavit told him that he presence uphold had seen the the issuance of the of be used to search marijuana places. However, in warrant, may various any at truthful information be as hearing, Franks, 171-72, the Franks the affiant admitted that 438 U.S. at considered. had informant not made these state- The fault here is not that S.Ct. at 2684. on three, the affidavit when an attack but that mits page read not did false, that statements on therein is not when offi- erroneous were statement there totally accurate three been page page. Had it. portion fails to negligently read cer facts, failure to read Vetter’s recital of its judgment of conviction is Accordingly, warrant, as the to the fatal it not be would AFFIRMED, per- false. Franks not be information would *5 A

APPENDIX

1157

1158 concurring Judge,

RYAN, Circuit

separately. opinion’s charac- majority agree

I with applied in be to the standard

terization of that in an affidavit “Statements

this case: with reckless intentionally false or made

are must be stricken.”

disregard for the truth Delaware, (citing v.

Maj. op. Franks at 1152 2674, 2676, 154, 155-56, S.Ct. (1978)). agree that I likewise

L.Ed.2d imma- page are on third

the inaccuracies probable cause determination to the

terial consequent issuance of the search

and the

warrant. carelessness or disagree that it was

I must sign the led affi- that

inadvertence was, reading page; final it davit without

instead, exhibiting a “reckless disre- behavior on that

gard the truth” of the statements for court’s determination

page. The district is, my judgment, clearly erro- contrary

neous.

I concur.

In re MICHIGAN LITHOGRAPHING

COMPANY, Debtor. COMPANY,

OWEN-AMES-KIMBALL Defendant-

Plaintiff/Counter

Appellee,

v.

MICHIGAN LITHOGRAPHING COMPA

NY; Concord, Inc.; Barclays-Amer U.S. Credit, Inc.; and Old Kent

ican/Business Defendants, Company,

Bank Trust & Rodgers,

Brett N. Trustee for the Estate Lithographing Company, Michigan

Debtor, Plaintiff-Appellant. Counter

No. 92-2035. *9 Appeals,

United States Court of

Sixth Circuit.

Argued June 1993. July 1993.

Decided