United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. Van Bokkelen United States District Judge
matter is before the Court on the joint motion of Defendants
Ramiro Dellano and Melissa Hernandez to quash a search
warrant and to suppress the statements Defendants made and
the physical evidence seized on August 26, 2015 (DE 65). An
evidentiary hearing was held on December 7, 2018. The parties
filed simultaneous supplemental briefs on January 18, 2019.
They were given the opportunity to file simultaneous
responses to each other's supplemental briefs on February
1, 2018, but neither the Government nor Defendants have
chosen to do so. At the hearing, Defendants requested oral
argument following the completion of supplemental briefing,
but under these circumstances, the Court doesn't believe
that oral argument is necessary. Accordingly, the motion is
ripe for decision.
to his search warrant affidavit, on the morning of August 26,
2015, Hammond police detective Marc Ferry took a call from
DEA agent David Zamora, who asked if the Hammond narcotics
unit could investigate a house for him. Zamora described the
house as blue and located two houses either north or south of
4836 Columbia, with a green Jeep Cherokee parked on the
street in front of it. Zamora stated that he had just
received information that the house contained 100 pounds of
marijuana and possibly some cocaine. Ferry and several other
officers went to the 4800 block of Columbia Avenue, where
they saw a blue house at 4842 Columbia, two houses south of
4836 Columbia, with a green Jeep Cherokee parked in front of
it. Ferry ran the Jeep's plate and discovered that it was
registered to a green 1994 Honda. The mismatched plate is a
violation of an Indiana statute.
the officers had watched the blue house for about an hour and
a half, they saw a Hispanic man leave the house, get into the
Jeep, and make a U-turn on Columbia Avenue, in violation of a
Hammond ordinance. Detectives Miller and Gonzales were
waiting nearby in a marked car. They conducted a traffic stop
of the Jeep about two blocks away from the blue house. The
driver was Defendant Ramiro Dellano. A drug sniffing dog was
brought to the scene and alerted for the presence of drugs in
the car. The Jeep was then searched and a suspected marijuana
cigarette was found along with several pieces of electronic
equipment. Dellano explained that he worked for a cable
company. Ferry testified that he asked if Dellano had proof
of his employment with him and Dellano said no, but he had
work shirts back at his house that would verify his
employment. Ferry then asked Dellano to go back to his house
and Miller and Gonzales drove him there.
had told the officers that his girlfriend, Melissa Hernandez,
was inside the residence. Ferry knocked on the door at 4842
Columbia. Hernandez opened it slightly, told Ferry she needed
to get dressed, and closed the door. A short time later
Hernandez came out of the house and quickly closed the door
behind her. At this point, Gonzales, who was outside the door
with Ferry, told Ferry that he smelled the odor of marijuana
in the air. The drug sniffing dog was then brought to the
house. The dog alerted to the front door of the house,
indicating the presence of the odor of drugs. Ferry then
applied to the Hammond city judge for a search warrant on the
basis of the facts recited above. During the execution of the
search warrant 300 pounds of marijuana and 250 grams of
cocaine were found hidden in the basement.
parties agree that, on the authority of United States v.
Jardines, 569 U.S. 1 (2013), bringing the dog onto the
porch to sniff for drugs without first obtaining a warrant
was an illegal search. Accordingly, in this case, the fact
that the dog alerted for the presence of drugs at the front
porch must be discounted in determining whether there was
probable cause to issue a warrant to search Defendants'
house for drugs.
also claim that the statement in the search warrant affidavit
that Gonzalez reported smelling an odor of marijuana in the
air as he stood on the porch when Hernandez opened the door
the second time must also be excised because his presence on
the porch was an illegal search under Jardines. The
Jardines, the Supreme Court recognized an implied
license to walk up the front path of a house and knock on the
door. Id. at 8. This license extends to police
officers as well as Girl Scouts and trick-or-treaters.
Id. While there is no evidence that either Defendant
expressly told the officers they could approach the front
door, neither is there any evidence that they were told they
were not permitted to do so. Thus, they could rely on the
implied license. The proposition that the officers may have
gone onto Defendants' porch in the hopes that they would
ultimately be able to search the house for drugs does not
invalidate this license. Nothing in Jardine or any
other case Defendants cite suggests that simply approaching
the front door and knocking is in any way unlawful. Nor have
Defendants pointed the Court to any authority suggesting that
a police officer's acts of inhaling and exhaling and
noting what his sense of smell detects while he is on the
porch of a house for the purpose of speaking to the occupant
constitute a search. Because Gonzalez conducted no search
while he was on the porch, his observation regarding the
smell of marijuana in the air when the door to
Defendants' house was opened will not be excised from the
search warrant affidavit.
argue further that the warrant to search Defendants'
house must be voided because they have shown by a
preponderance of the evidence that Detective Ferry made
material false statements or omitted material facts either
intentionally or with reckless disregard for the truth.
According to Defendants, if the false material is set aside
or the omitted material is added, the affidavit is
insufficient to establish probable cause. See Franks v.
Delaware, 438 U.S. 154 (1978).
first alleged falsehood Defendants claims is that the warrant
affidavit says there was no proof of Dellano's employment
at the traffic stop. To begin with, Defendants misrepresent
what the affidavit actually said: “Dellano stated that
he worked for a cable company but did not have any proof at
the [traffic] stop.” (DE 65-1 at 5.) Although pay stubs
for Dellano were in the Jeep at the time of the traffic stop,
Defendants have presented no evidence that Dellano did not
make the statement Ferry attributed to him or that Ferry knew
when he signed the affidavit that the pay stubs were in the
Jeep. Moreover, whether there was proof of Dellano's
employment in the Jeep is immaterial to whether there was
probable cause to search Defendants' house for drugs. The
evidence falls far short of establishing that this statement
was an intentional falsehood or was made with reckless
disregard for its truth.
next claim is that the affidavit's descriptions of who
first approached the door and when Gonzalez smelled marijuana
do not agree with Gonzalez's testimony at the evidentiary
hearing. A careful reading of the affidavit and the
transcript does not reveal any material discrepancies.
Gonzales testified that he first smelled marijuana the first
time Hernandez opened the door but told Ferry only after
Hernandez opened the door a second time and exited the house.
(DE 75 at 86.) Ferry, not Gonzalez, prepared and signed the
also claim that Gonzalez's assertion that he smelled
marijuana in the air was not truthful in light of the fact
that it was unburnt, hidden in the basement behind a wall,
packaged in cellophane wrapping, and located inside plastic
trash bags with dryer sheets to mask the smell. The Court was
able to observe Gonzalez at the hearing and assess his
credibility. Nothing in his demeanor or the way he responded
to questioning left the impression that he was lying in his
assertion that he could smell marijuana in the air when the
door to Defendants' house was opened. The Court notes the
small size-776 square feet-of the ...