BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) No. CR 00-468 SI
)
Plaintiff, ) DEFENDANT'S NOTICE OF
) MOTION AND MOTION TO
) SUPPRESS EVIDENCE AND
v. ) STATEMENTS; MEMORANDUM
) OF POINTS AND AUTHORITIES;
) REQUEST FOR EVIDENTIARY
) HEARING
CARL EUGENE XXX, )
) Date: January 19, 2001
Defendant. ) Time: 11:00
__________________________________________) Honorable Susan Illston
TO: UNITED STATES OF AMERICA, PLAINTIFF; AND ROBERT MUELLER, UNITED STATES ATTORNEY;
AND ANDREW SCOBLE AND CHRISTINA HUA, ASSISTANT UNITED STATES ATTORNEYS.
PLEASE TAKE NOTICE that on January 19, 2001 at 11:00 a.m., in the courtroom of the Honorable Susan Illston, defendant Carl Eugene XXX (hereinafter "Mr. XXX") will move this Court to suppress all evidence resulting from the illegal searches of his home conducted on August 1, 2000 and August 17, 2000 and to suppress statements made during interviews conducted on August 7, 2000 and August 17, 2000. Suppression is warranted because the federal search conducted on August 17 was impermissibly tainted by evidence obtained through an unlawful warrantless search by state officers conducted on August 1, and because the federal agent who submitted the application for the federal warrant mischaracterized the August 1 search as having been conducted pursuant to a warrant. Mr. XXX respectfully requests an evidentiary hearing if the Court is unable to ascertain the legality of the searches based upon the parties' submissions.
In addition, as a separate basis for suppression, Mr. XXX further requests a limited evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) in light of the material false statements and omissions contained in the federal agent's affidavit for the federal warrant. Under Franks, the evidence must be suppressed because the corrected affidavit -- when purged of false statements and supplemented with the true facts -- would not have provided probable cause to issue the warrant.
INTRODUCTION
Mr. XXX is charged with one count of conspiracy to manufacture, and the manufacture with intent to distribute marijuana in violation of 21 U.S.C. §§ 844 and 841. Mr. XXX is also charged with two counts of 18 U.S.C. § 922(g), ex-felon in possession of a firearm and ammunition that had at one time crossed state lines.
On three grounds, Mr. XXX moves the Court to suppress all evidence obtained as a result of two searches of his single-family residence at 17950 Oklahoma Lane (Cabin), Ft. Bragg, California. The first search of his home, which occurred on August 1, 2000, was conducted by state officers without a warrant. All evidence obtained through that search must therefore be suppressed.
State officers thereafter conducted an interview with Mr. XXX on August 7 and provided information and evidence from the search and interview to federal officers, who relied upon that information and evidence to obtain a federal warrant to conduct a second search of Mr. XXX' residence. The second search, which occurred on August 17, 2000, was thus impermissibly tainted by information and evidence obtained through the first warrantless search. Federal officers also interviewed Mr. XXX on August 17 and took additional statements. As a result of the taint, all evidence and statements obtained at the time of the second search must also be suppressed as fruit of the poisonous tree.
The evidence obtained pursuant to the federal warrant must be suppressed for the further reason that, although the warrant was facially valid, the affidavit supporting the application for the warrant contained material false statements and omissions. Specifically, the affidavit both mischaracterized the initial search as having been conducted pursuant to a warrant and greatly exaggerated a witness' statement regarding Mr. XXX' alleged possession of additional weapons. If the magistrate considering the warrant application had been advised regarding the warrantless nature of the initial search and the true statement of the witness, it is highly unlikely that the magistrate would have issued the warrant on the remaining evidence. Mr. XXX therefore requests a limited evidentiary hearing regarding the material false statements and omissions in the affidavit, pursuant toFranks v. Delaware, 438 U.S. 154 (1978), and further requests that the warrant be voided and all evidence resulting from the search be suppressed.
STATEMENT OF FACTS
On August 1, 2000, state agents from the Mendocino Major Crimes Task Force executed a search warrant on a blue-and-white single-family residence located at 17950 Oklahoma Lane, Fort Bragg, California (the "XXX house"). At the same time, the agents also searched a second single-family residence located behind the blue-and-white house. The second home was painted tannish brown and located at 17950 Oklahoma Lane (Cabin) (the "XXX house"). See Adelphia cable bill addressed to Carl XXX at "17950 Oklahoma Ln (Cabin)," attached hereto as Exhibit A. The XXX house and yard are separated from the XXX house and yard by a fence that completely surrounds the XXX portion of the property. The two homes are located in a populated area with additional residences adjacent to each home.
The search warrant, which had been obtained earlier that day from Judge Labowitz of the Mendocino County Superior Court, authorized only the search of the blue-and-white XXX house, its garage, and outbuildings, and the person of Carl XXX, described as follows:
The premises at 17950 Oklahoma Lane in Fort Bragg, CA. Further described as a single story, wood construction, blue with white trim, residence, with a similar painted detached garage with outbuildings.
The search shall include all rooms, attics, storage areas, trash containers, and other containers that could conceal the items listed to be seized that are located on or connected to said location or associated with said location by number, letter, key or other means.
The search shall include the person of; [sic] Carl Eugene XXX date of birth 10/30/46, 5 feet 10 inches tall 180 pounds,
brown hair, blue eyes, with California drivers license number M0736064, Social Security number of 545-68-3822, CII
number of A05323602.
See Mendocino County Search Warrant, attached hereto as Exhibit B, at 2.
Special Agent Daniel Edwards with the Mendocino County Major Crimes Task Force provided the affidavit in support of the application for the warrant. See Edwards Affidavit, attached hereto as Exhibit C. He thereafter assisted in the execution of the warrant and prepared an Investigation Report. See Investigation Report (8/1/00), attached hereto as Exhibit D. According to his Investigation Report, the agents arrived and executed the warrant on the blue-and-white XXX house, in which they found Ronald XXX. See id. at 2. The agents then "walked down a path that led behind the garage, where [they] located XXX, standing outside a small second residence." See id.
According to Agent Edwards, the agents informed Mr. XXX that they had a warrant authorizing the search of the residence. See id. In his report, Agent Edwards failed to indicate whether the warrant was actually shown to Mr. XXX. Agent Edwards also failed to indicate whether he defined the terms of the search warrant to Mr. XXX, including the fact that the warrant referred only to the blue-and-white XXX house, and not to the tan-brown XXX house.
Agent Edwards' report indicates that Mr. XXX advised the agents of a fence on the property separating the two homes. See id. It is unclear why Agent Edwards failed to confirm the existence of the fence in his report, because the fence is clearly visible to anyone on or near the property. SeeDiagram of Property and Accompanying Photographs, attached hereto as Exhibits E.1 through E.5. Indeed, Agent Edwards must have walked next to the fence when he approached the XXX house to search it.
After approaching Mr. XXX on the walkway to the XXX house, the agents placed him in handcuffs and "cleared the residence." See Investigation Report (8/1/00), Ex. D, at 2. This included a full search of the XXX residence and the property behind the residence. Among other things, agents located and seized 67 marijuana plants from inside the house, medical marijuana forms, a Ruger rifle and bullets, and 367 marijuana plants that had been growing behind the house. See id. at 5. The agents left behind six marijuana plants, (1) cultivation equipment and supplies, and miscellaneous additional items.
At some point, this information was communicated to federal agents. Thereafter, Special Agent Jon Pickette, a federal agent with the Drug Enforcement Administration, submitted an Application and Affidavit for Search Warrant to the Honorable Bernard Zimmerman, United States Magistrate Judge. See Application and Affidavit for Search Warrant (hereinafter "Application"), attached hereto as Exhibit F. Attachment A to his affidavit contained the following description of the premises to be searched:
The premises to be searched is located on 17950 Oklahoma Lane, Ft. Bragg, California. The numbers 17950 are attached to a wood fence. The property consists of two residential structures. The residence to be searched is a rear, smaller residence; the residence in the front is NOT to be searched. This rear residence to be searched is a single story, wood construction and is tan in color. The roof is pitched. Also, the yard of the entire property is to be searched.
This description of the property is based on S/A Dan Edwards' portrayal of the property and residence.
See id., Attachment A, at 1. In support of his application, Agent Pickette attached the Mendocino County search warrant and the affidavit signed by Agent Edwards in support of that affidavit, see id., Attachment C, but he did not attach the Investigation Report that Agent Edwards prepared following the search of the property.
In his affidavit in support of the federal warrant, Agent Pickette summarized the results of the August 1 search based on his review of the case report and his conversations with Agent Edwards and Agent Dennis Downs. He stated in part:
(a) The search warrant was executed on August 1, 2000 at approximately 5:30 p.m. Detained upon the property at the time of the execution of the search warrant was Ronald XXX and Carl Eugene XXX. . . .
(b) During the search of the property at 17950 Oklahoma Lane, Ft. Bragg, CA, law enforcement discovered seven (7) marijuana plants growing behind the front residence. XXX advised law enforcement officers that he resided in that front residence and had a medical necessity to grow marijuana. . . .
(c) Located in a smaller residence located behind the garage, law enforcement located and seized sixty-seven (67) marijuana plants growing inside a cabinet separating the living room and kitchen. XXX claimed that he lived in this smaller residence in the back of the property behind the garage.
(d) Also seized from the smaller residence was a Ruger .270 caliber rifle, assorted ammunition in several calibers, in excess of 15,000 primers, in excess of 100 feet of fuse, in excess of 10 pounds of gun powder and a new ballast. . . .
. . .
(g) According to S/A Edwards, other than XXX' and XXX's statements, officers did not seize any indicia regarding or ownership from either structure. S/A Edwards is uncertain whether he saw any indicia relating to residency or ownership of either structure.
(h) Located near XXX' residence was a greenhouse containing 367 marijuana plants. XXX claimed that he had a medical necessity for marijuana and was a provider for twenty people. [O]fficers seized all but six (6) marijuana plants, which were left with XXX. S/A Edwards also told me that law enforcement had left enough cultivation equipment and supplies to maintain approximately 1,000 marijuana plants.
See id., Pickette Affidavit, at 4-6
The affidavit therefore indicated that the search of both homes had been conducted pursuant to the same warrant. See id. at 4-6, (a)-(g). The affidavit did not specify that the earlier warrant had authorized only the search of the XXX house. Nor did the affidavit provide the distinguishing features of the two homes, such as the distinct coloring, or indicate that a fence separated the two homes and that the XXX yard was completely surrounded by a fence. Indeed, to the contrary, the affidavit offered the statement of Agent Edwards that he was "uncertain" whether there was any indicia of separate residency or ownership. See id. at (g).
In his affidavit, Agent Pickette noted that Agent Downs and Agent Edwards had returned to the property and questioned Mr. XXX on August 7. See id. at 6. See also Report of Investigation, Interview with Carl XXX, attached hereto as Exhibit G. During that questioning, Mr. XXX discussed his militia activities and stated that he owns guns but does not possess them. See id. He also stated that the gun and ammunition that had been seized from the property were owned by his friend, Barbara Zemlack. See id. Finally, he stated that he has friends who tend to his marijuana plants while he is away. During the questioning, Agent Edwards saw two marijuana plants growing on the property. See id. On that same day, the agents talked to Mr. XXX about Mr. XXX and, according to Agent Pickette, Mr. XXX informed them that he believes Mr. XXX possesses guns that are buried elsewhere in an unknown location. See id. at 7. But see Report of Investigation, Interview with Ronald XXX, attached hereto as Exhibit H (hereinafter "XXX Interview"), at 2 (quoting Mr. XXX as follows: "he (XXX) probably has some [firearms] buried in barrels somewhere knowing him, honestly").
Agent Pickette also noted that Mr. XXX had a criminal history. The two convictions listed were each at least fifteen years old, including convictions in 1985 for conspiracy to manufacture methamphetamine, felon in possession of firearms, and use of a telephone to facilitate a conspiracy; and a conviction in 1982 for possession of cocaine. See id. at 10.
Based upon the totality of those facts, Agent Pickette stated that probable cause existed to believe that further evidence of
drug trafficking and gun possession would be found in Mr. XXX' residence. See id. at 13. Agent Pickette relied in part
on his version of Mr. XXX's statement to argue that Mr. XXX was a drug trafficker who possessed additional weapons to
protect his marijuana plants. See id. at 10, 13. Agent Pickette also described the property to be seized, including
marijuana in various forms, equipment associated with the cultivation of marijuana, currency in excess of $500.00, and
ledgers pertaining to the sale of drugs. See Application, Attachment B, Ex. F, at 1. Magistrate Judge Bernard
Zimmerman issued the search warrant on August 17, 2000, and the federal search was conducted on the same day. See
Search Warrant, attached hereto as Exhibit I. Among other things, agents seized both growing and cut marijuana plants,
medicinal marijuana forms, cultivation and growing equipment, computer disks, and firearms indicia. See Return,
attached hereto as Exhibit J; Report of Investigation, Execution of Federal Search Warrant, attached hereto as Exhibit K.
Finally, agents also conducted a follow-up interview with Mr. XXX after completing the search. See Report of
Investigation, Interview with Carl XXX, attached hereto as Exhibit I.
ARGUMENT
I. ALL EVIDENCE AND STATEMENTS MUST BE SUPPRESSED BECAUSE BOTH SEARCHES WERE
CONDUCTED IN BLATANT DISREGARD OF THE FOURTH AMENDMENT
All evidence that was obtained during the two searches of Mr. XXX' home must be suppressed because both searches occurred in violation of the Fourth Amendment's warrant requirement. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). The August 1 search, occurring without a warrant, cannot be justified under any exception to the warrant requirement and all evidence must therefore be suppressed. Further, the impermissible taint of this unlawful search carried forward into the August 17 search, such that suppression of the evidence obtained therefrom is also required, because the officers sought the federal warrant based upon knowledge obtained through the prior unlawful search and because the magistrate's decision to issue the warrant was affected by that knowledge. See United States v. Roberts, 747 F.2d 537, 541 (9th Cir. 1984) ("Under the exclusionary rule, law enforcement officers may not use information obtained in violation of the Fourth Amendment to establish probable cause justifying a search."); United States v. Hill, 55 F.3d 479, 481 (9th Cir. 1995) (quoting Murray v. United States, 487 U.S. 533, 536 (1988) ) (where officers sought warrant on basis of evidence obtained through prior illegal entry, district court must "'explicitly find that the agents would have sought a warrant if they had not earlier entered [defendant's house]'"). (2) For the same reason, all statements made by Mr. XXX on August 7 and August 17 must be suppressed, because both interviews occurred as a direct consequence of the initial illegal search.
In precisely this context, the Supreme Court has explained the application of the exclusionary rule as follows:
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of
testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits
the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that
is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the
unlawful search becomes so attenuated as to dissipate the taint.
Murray, 487 U.S. at 536 (internal citations and quotation marks omitted). Here, because the officers sought and obtained
the warrant for the federal search on the basis of illegally obtained evidence, all evidence from both searches must be
suppressed.
A. The Warrantless Search of Mr. XXX' Home on August 1, 2000 was Presumptively Unlawful and Cannot Be
Justified By Any Exception to the Warrant Requirement
"It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1979) (internal citation and quotation marks omitted). "[A]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." See id. at 590-91 (internal citation and quotation marks omitted). In recognition of this right to be free from intrusion, the Fourth Amendment requires a police officer to obtain prior authorization from a neutral magistrate before searching a residence, even where the officer's observations in the field lead the officer to believe that evidence of a crime will be found within the residence. See Payton, 445 U.S. at 588 (noting "long-settled premise that, absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within"). As the Supreme Court has explained,
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement
the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search
is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
Johnson v. United States, 333 U.S. 10, 13-14 (1948) (footnotes omitted).
In recognition of the zone of privacy surrounding one's home, the Fourth Amendment interposes three requirements applicable to the issuance of a warrant: (1) a warrant may be issued only on probable cause; (2) it must be supported by oath or affirmation; and (3) it must "particularly describe[] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. As relevant here, the Fourth Amendment requires that the warrant provide a sufficiently detailed description of the place to be searched such that the officer's conduct in the field will be carefully circumscribed. See Marron v. United States, 275 U.S. 192, 196 (1927) (emphasis added) (noting in the context of seizure of items, "[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant"). "The test for determining the sufficiency of the warrant description is whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any probability that another premises might be mistakenly searched." United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985) (internal citations and quotation marks omitted). See United States v. Collins, 830 F.2d 145, 145 (9th Cir. 1997) (ordering suppression of evidence where wrong address and description in warrant caused officers to attempt to search two mistaken premises); cf. Turner, 770 F.2d at 1510 (refusing to order suppression where warrant provided wrong address but correct description of property).
Here, the state officers who searched Mr. XXX' home on August 1, 2000, were authorized to search the blue-and-white XXX house and its similarly painted outbuildings, all of which were particularly described in the warrant. However, in addition to searching these buildings, the agents also made a determination at the scene that they were entitled to conduct a search of the separate XXX house, which was not described anywhere in the warrant. The tan-colored XXX house, separated from the XXX house by a fence, is a completely distinct private residence and is entitled to the full protection of the Fourth Amendment's warrant requirement. The fence separating the homes is clearly visible on the property. Moreover, Mr. XXX actually advised the officers that he and Mr. XXX lived in separate residences.
The officers arriving on the scene certainly recognized that the two homes are physically separated by distance and by a fence, are occupied by different people, and are painted different colors. The officers thus conducted the search of Mr. XXX' tan-colored home with knowledge that the warrant did not authorize their conduct. (3) As such, the warrantless search of Mr. XXX' home was presumptively illegal and all evidence and knowledge flowing therefrom must be suppressed. See United States v. Katz, 389 U.S. 347 (1967). (4)
Finally, the government may not argue that the more general terms of the warrant somehow authorized the search of additional homes that were not particularly described therein. The Fourth Amendment's particularity requirement, which was intended to prevent police from acting pursuant to so-called "general warrants," requires careful adherence by officers in the field to the terms of the warrant. See Payton, 445 U.S. at 583 & n.21 ("It is familiar history that indiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment."); United States v. Kow, 58 F.3d 423, 426-27 (9th Cir. 1995) (upholding suppression of evidence on grounds that search warrant identifying items to be seized was overbroad).
In light of this particularity requirement, and considering the specific description of the XXX house contained in the warrant, the government may not now contend that the warrant somehow encompassed the search of Mr. XXX' separate and distinct residence. In the alternative, if the government suggests that the officers in the field believed their conduct was authorized by the warrant -- a conclusion which is flatly contradicted by Agent Pickette's subsequent affidavit in support of the federal warrant, in which he presented Agent Edwards' careful description of the two separate homes -- then the evidence in this case must be suppressed for the further reason that the officers acted pursuant to an indiscriminate "general warrant," in violation of the Fourth Amendment.
B. The Warrant in Support of the Federal Search on August 17, 2000 was Impermissibly Tainted By Illegally
Obtained Evidence and Statements Derived from the Prior Search and All Evidence Flowing Therefrom Must be
Suppressed
In determining whether the subsequent search warrant issued on August 17 was impermissibly tainted by evidence derived from the prior illegal search, the relevant inquiry is whether the "illegal search had any effect in producing the warrant." Murray, 487 U.S. at 542 n.3. The effect of the illegal search may be determined by assessing whether (1) the agents would not have sought the warrant without the information obtained from the prior illegal search; or (2) the magistrate's decision to issue the warrant was affected by information that had been unlawfully obtained. See id. at 542. If the tainted evidence influenced the decision-making process of either the agents or the magistrate, all evidence flowing from the warrant must be suppressed.
First, in order to find that the officers were not affected by the illegally obtained evidence, the court must "'explicitly find that the agents would have sought a warrant if they had not earlier entered [defendant's house].'" Hill, 55 F.3d at 481 (quoting Murray, 487 U.S. at 536). Second, in order to find that the magistrate's issuance of the warrant was not affected, the district court must conduct an analysis of the warrant to determine whether the facts supporting probable cause derived from the prior illegal search. See id. at 543-44; Hill, 55 F.3d at 481; see also United States v. Grandstaff, 813 F.2d 1353, 1335 (9th Cir. 1987) (information obtained through prior warrantless entry may not be used by court to determine whether probable cause exists for issuance of warrant).Where the application for the warrant contained both tainted and untainted facts, the evidence derived from the warrant must be suppressed if the untainted facts alone would have been insufficient to support a finding of probable cause. See United States v. Salas, 879 F.2d 530, 537-39 (9th Cir. 1989).
Here, all evidence and statements obtained during the August 17 search must be suppressed because the warrant for that search would not have been sought or issued without the evidence and knowledge derived from the prior unlawful search. First, the officers would not have sought the warrant for the August 17 search of the XXX house had they not previously entered that house illegally, observed indicia of marijuana cultivation and firearms possession, and seized evidence pertaining to those activities. Second, the magistrate would not have issued the warrant had he purged from the application all evidence and information derived from the prior search. Because the entire basis for the magistrate's probable cause determination arose from tainted evidence, there is no way that the magistrate could have found probable cause on the basis of the untainted evidence alone and all evidence must therefore be suppressed. See Salas, 879 F.2d at 537-39.
The application submitted to Magistrate Zimmerman contained the following information in support of probable cause (summarized from affidavit; untainted evidence is identified in bold):
(1) Officers seized a variety of evidence on August 1, including 7 marijuana plants growing behind the XXX house, 67 marijuana plants growing in the XXX house, a Ruger .270 caliber rifle, ammunition, primers, over 100 feet of fuse, gun powder, a new ballast, documents pertaining to medical marijuana, and a personal computer, all
of which (except the seven outdoor plants) was seized from the XXX house. See Application, Pickette Affidavit, Ex.
F, at 4-5.
(2) Officers left additional marijuana plants, as well as supplies for the cultivation of over 1,000 plants, at the property. See id.
(3) Officers Edwards and Downs returned to the property on August 7, 2000 to conduct a follow-up interview with Mr. XXX, during which he discussed his militia activities, his gun ownership (but not possession), and his cultivation of marijuana. The officers saw two marijuana plants growing on the property. See id. at 6-7. (5)
(4) Officers Edwards and Downs also spoke to Mr. XXX on August 7, during which Mr. XXX stated that Mr. XXX
has additional firearms buried underground in an unknown location. See id.; cf. XXX Interview, Ex. H, at 2.
(5) Mr. XXX was convicted of three felonies in 1985 (conspiracy to manufacture methamphetamine, felon in
possession of firearms, and use of a telephone to facilitate a conspiracy) and he plead guilty to possession of
cocaine in 1982. See Application, Pickette Affidavit, Ex. F, at 10.
(6) Mr. XXX has been known to purchase ammunition and go shooting. See id. at 11. (6)
(7) The Ruger .270 caliber rifle seized from Mr. XXX' house was given to him by
someone else and was believed to have traveled in interstate commerce. See id. at 11- 13.
Under Salas, the Court must delete all references to tainted evidence in the warrant application and determine whether probable cause existed on the remaining evidence. See Salas, 879 F.2d at 537-39. Here, the tainted evidence in the warrant application, all of which must be redacted, included all of the evidence listed above except the two items identified in bold: (a) the seven marijuana plants obtained from Mr. XXX's home during the lawful search of that residence, and (b) the contention that Mr. XXX had previously been convicted of drug-related crimes in 1985 and 1982. The first item does not pertain to Mr. XXX, and the second item consists of criminal history information that is over fifteen years old. Because these two factors alone utterly fail to establish probable cause for a search of Mr. XXX' home for evidence of marijuana cultivation or gun possession, all evidence resulting from the search on August 17 must be suppressed. Cf. Grandstaff, 813 F.2d at 1355-56 (finding that redacted affidavit nonetheless provided probable cause to issue warrant because "substantial portion" (93%) of affidavit survived district court's redaction).
II. PURSUANT TO FRANKS V. DELAWARE, THE COURT MUST DETERMINE WHETHER PROBABLE CAUSE EXISTED TO ISSUE THE WARRANT
AFTER CORRECTION OF THE FALSE STATEMENTS AND OMISSIONS
A. The Principles For Voiding the Warrant and Suppression of Evidence UnderFranks v. Delaware
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court recognized the constitutional right to challenge the truthfulness of statements contained in a search warrant affidavit. The Court must hold an evidentiary hearing under Franks upon a substantial preliminary showing that (1) a false statement was included in the affidavit; (2) the false statement was made knowingly and intentionally, or with reckless disregard for the truth; and (3) the false statement was necessary to the finding of probable cause. Id. at 155-56; see also United States v. Johns, 851 F.2d 1131, 1133-34 (9th Cir. 1988) (reversing and remanding for Franks hearing to determine whether officers were actually able to detect scent of illegal chemicals emanating from defendant's storage space). If the defendant ultimately establishes these elements by a preponderance of the evidence and proves that the magistrate was misled by the falsities and/or omissions, the Court must void the warrant and suppress the fruits thereof. See Franks, 438 U.S. at 156.
Franks also protects against information omitted from search warrant affidavits:
The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when
making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inferences a
magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement
of all real meaning.
United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985) (defendant entitled to Franks hearing where officer's affidavit stated that defendant had previously been charged with drug-related offense, but officer failed to advise court that no conviction had resulted).
Where police officers have conducted a prior search of property and thereafter seek a warrant to conduct a further search, the officers have a duty to inform the magistrate of relevant information regarding the prior search. See United States v. Whitworth, 856 F.2d 1268, 1281 (9th Cir. 1988). InWhitworth, the Ninth Circuit stated,
We do not believe it is proper for law enforcement officials to withhold information regarding prior searches of the same
premises from magistrates considering warrant applications. . . . [Instead, the] affiant could affirmatively state that
nothing obtained in the first search is being relied on in seeking the warrant.
Id.; see United States v. Mulder, 889 F.2d 239, 242 & n.2 (9th Cir. 1989) (to avoid claim of deliberate concealment under Franks, agents seeking search warrant advised magistrate regarding prior illegal search but asked magistrate not to consider prior search in making his decision).
A defendant may, upon the substantial showing outlined above, request an evidentiary hearing to develop the factual
basis for suppression of the seized evidence. At this stage, the defendant need not present "clear proof of a deliberate or
reckless omission [or false statement]. . . [A]ll that is required is that the defendant make a substantial showing." Stanert,
762 F.2d at 780-82.
B. The Standard For Evaluating Evidence Following a Franks Hearing
While a magistrate's decision to issue a warrant is normally afforded great deference on review, see United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986), a district court evaluating the impact of false statements upon the magistrate's determination must review the magistrate's issuance of the warrant de novo because "the question turns on the consequences of a fraud on the issuing magistrate which that magistrate was not in a position to evaluate." United States v. Elliot,893 F.2d 220, 222 (9th Cir. 1990), amended on other grounds, 904 F.2d 25 (9th Cir. 1990). (7)
In United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985), which involved an application for a wiretap, the Ninth Circuit set forth the procedure to be followed to resolve the factual issues related to probable cause. With regard to false statements, the reviewing court must delete the false statement from the original affidavit and insert in its place its truthful counterpart. See id. at 1486. With regard to material omissions, the reviewing court must "insert the omitted truths revealed at the suppression hearing." Id. at 1487 n.1. After employing this "cut and paste" procedure, the reviewing court should reevaluate the modified affidavit to determine whether it establishes probable cause. See id.
C. Because the Magistrate Issued the Warrant on the Basis of Material False Statements and Omissions that
were Clearly Critical to the Magistrate's Determination, the Court Must Suppress the Evidence
1. Agent Pickette Omitted and Misrepresented Material Information
from the Affidavit Submitted to Magistrate Zimmerman
Under the Ninth Circuit's holding in Whitworth, Agent Pickette had a duty to fully advise Magistrate Zimmerman regarding the nature of the prior search. See Whitworth, 856 F.2d at 1281. This duty is particularly important in light of the magistrate's obligation to purge illegally obtained evidence from the warrant. See Roberts, 747 F.2d at 541; Hill, 55 F.3d at 481; Grandstaff, 813 F.2d at 1335.
Here, Agent Pickette's affidavit misrepresented the nature of the August 1 search because he indicated that the search of Mr. XXX' home had been conducted pursuant to a warrant. SeeApplication, Pickette Affidavit, Ex. F, at 4-6. In fact, as discussed above, the search of Mr. XXX' home was not authorized by the warrant. To solidify this misrepresentation, Agent Pickette also offered the false statement of Agent Edwards that Agent Edwards was "uncertain" whether he saw any indicia of separate residency or ownership. See id. at 5. To the contrary, Agent Edwards must have seen the fence that completely enclosed the XXX home and backyard and separated the two homes and their yards. In addition, because Agent Edwards conducted a full search of the two homes, he certainly recognized that Mr. XXX and Mr. XXX lived separately in two functionally independent residences.
Agent Pickette's presentation of misleading information regarding the nature of the two homes and his failure to apprise the magistrate regarding the unlawful nature of the search thus permitted the magistrate to conclude that all the evidence seized from Mr. XXX' house had been lawfully seized. This information was material because, had the magistrate known that the search had not been authorized by the warrant, the magistrate would have recognized that the evidence seized during the search could not be considered in the probable cause analysis. See Roberts, 747 F.2d at 541; Hill, 55 F.3d at 481; Grandstaff, 813 F.2d at 1335. Further, with that knowledge, the magistrate would also have questioned the causal link between the unlawful search and the subsequent interviews with Mr. XXX, Mr. XXX, and Mr. Haagensmit, which interviews would not have occurred but for the unlawful seizure of evidence on August 1. See Murray, 487 U.S. at 536(testimonial evidence must be suppressed where it is acquired as direct or indirect result of illegal search).
Finally, on a separate point, Agent Pickette also misrepresented the statements of Ronald XXX regarding Mr. XXX' possession of additional firearms. In Agent Pickette's affidavit, he claimed that Mr. XXX made the following statements during the August 7 interview:
XXX stated that XXX has another property and that XXX has guns buried in barrels. XXX stated that he did not know
the location of these buried weapons.
See id. at 7.
This version of Mr. XXX's statements is contradicted by Agent Downs' own version of the statements in his Report of Investigation:
4. XXX stated that his understanding is that the firearm isn't his brother's and that "he (XXX) probably has some
[firearms] buried in barrels somewhere knowing him, honestly." XXX stated that he doesn't believe his brother has any
other firearms on his property.
See XXX Interview, Ex. H, at 2.
In the verbatim statement provided by Agent Downs, Mr. XXX clearly lacked the certainty and knowledge attributed to him by Agent Pickette. Nonetheless, Agent Pickette relied on his own version of Mr. XXX's statements to support his belief that "XXX possesses firearms and ammunition which are located at another property" and that are used to protect his marijuana. SeeApplication, Pickette Affidavit, Ex. F, at 10, 13. According to Agent Pickette, this fact provided an additional basis for the search warrant because Agent Pickette believed that Mr. XXX would store records regarding this hypothetical property at his home. See id. at 12 ("ex-felons who possess firearms illegally often hide their firearms and ammunition to prevent detection. However, they keep records of purchase, acquisition, possession, storage location, or disposition of firearms and ammunition at their residence or property which they have control over"). In light of the materiality of these misrepresentations, it may be inferred that Agent Pickette acted recklessessly and/or intentionally presenting this false information to the magistrate. Each of these factors -- recklessness and materiality -- will be discussed in turn.
2. The Agent's Misrepresentations Were Either Intended to Mislead the Court Or Were Made in Reckless Disregard of the Misleading Effect
Because the legality of the prior search is central to the admissibility of the seized evidence,see Grandstaff, 813 F.2d at 1335 (illegally obtained information must be purged from affidavit before determining existence of probable cause) and because the seized evidence and the testimonial evidence flowing therefrom constituted almost the entire basis for the federal application, Agent Pickette certainly recognized that Magistrate Zimmerman would have been influenced by the warrantless nature of the search. His failure to advise the magistrate regarding the absence of a warrant thus constitutes evidence of intent and/or recklessness because the information was clearly critical to the probable cause determination. See e.g., United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993) (noting that intent or recklessness may be inferred from fact of omission where omitted information is "clearly critical," and finding recklessness where agent stated that drug-sniffing dog was "interested" in package, while omitting fact that dog had not "alerted" to package).
Further evidence of intent or recklessness regarding the mischaracterization of the search may be found in the supporting documents that Agent Pickette attached to his application. Notably, although Agent Pickette provided Magistrate Zimmerman with the warrant application for the August 1 search as well as the warrant itself, he failed to provide the investigative report prepared by Agent Edwards after the search. See Application, Pickette Affidavit, Ex. F, at 3-4. This omission of crucial supporting documents is itself evidence that Agent Pickette acted recklessly because the investigative report specifically mentioned the fence separating the two houses. See Investigative Report (8/1/00), Ex. D, at 2.
Finally, Agent Pickette intentionally minimized the distinct nature of the two homes. Indeed, he described the XXX home as a "smaller residence in the back of the property behind the garage."See Application, Pickette Affidavit, Ex. F, at 4. With this description, Agent Pickette clearly intended to suggest that the XXX home was nothing more than an adjunct of the XXX home, with no physical separation between the two. This description is particularly misleading in light of the absence of any reference to the fence and distinct coloring of the XXX home.
Finally, Agent Pickette's misrepresentation of Mr. XXX's statement regarding "guns in barrels" also indicates, at the very least, recklessness on the part of the agent or his colleagues. Rather than providing the magistrate with the actual statement made by Mr. XXX -- "he (XXX) probably has some [firearms] buried in barrels somewhere knowing him, honestly" -- Agent Pickette instead declared under oath that, according to Mr. XXX, Mr. XXX has additional weapons buried on other properties. This obvious misrepresentation of Mr. XXX's casual remark supports a finding of recklessness because, for two reasons, the existence of additional weapons on other properties was clearly critical to the magistrate's finding of probable cause. First, Agent Pickette requested that the search warrant be issued for Mr. XXX' home so that records of these additional properties could be located. Second, Agent Pickette relied on this assertion regarding gun possession to argue that Mr. XXX was a drug trafficker with additional weapons to protect his marijuana plants. Because the government argued that Mr. XXX was a trafficker rather than a supplier of medical marijuana, the possible existence of additional weapons was a critical factor in support of the government's argument that the search warrant was necessary. Agent Pickette's misrepresentation of Mr. XXX's off-hand remark was thus clearly critical to the magistrate's determination, and recklessness may therefore be inferred.
If the Court is unable to determine that Agent Pickette acted intentionally or recklessly in making the misrepresentations, the Court should hold an evidentiary hearing to resolve this issue. In the alternative, the Court may determine that another officer, such as Agent Edwards, is responsible for the false statements and omissions contained in the application. Even if true, the application may not be insulated from scrutiny simply because Agent Pickette himself did not knowingly misrepresent the facts. Indeed, a misstatement or omission by another officer may be a basis for suppression under Franks where that misstatement was relayed to the court through an officer who was unaware of its falsity. See United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (citations omitted) ("the police cannot insulate one officer's deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity"); United States v. Roberts, 747 F.2d 537, 546 n.10 (9th Cir. 1984).
3. The Court Would Not Have Authorized the Warrant had the Omitted Information been Included
In reviewing the warrant for the August 17 search to determine whether suppression is required under Franks, this Court must supplement the affidavit with the true facts and determine whether probable cause would still have existed had the true facts been known. Here, it is apparent that probable cause would not have existed because the vast majority of the physical and testimonial evidence supporting probable cause had been obtained in violation of the Fourth Amendment's warrant requirement. See supra Section I.B.
Also material was Agent Pickette's misrepresentation of Mr. XXX's statement regarding "guns in barrels," because Agent Pickette relied on that misrepresentation to assert conclusively that Mr. XXX possessed additional property where guns were buried and to argue that a search of the XXX residence would uncover records of that property. The magistrate relied on that factor, among others, to conclude that Mr. XXX was a drug trafficker rather than a supplier of medical marijuana, and to conclude that probable cause existed to issue the warrant so that records of his additional properties could be located.
Because all of the factors set forth in Franks are satisfied, the Court should void the warrant and suppress the evidence obtained pursuant to the August 17 search. See Jacobs, 986 F.2d at 1231, 1235 (reversing conviction where modified affidavit would not support probable cause); DeLeon, 979 F.2d at 765 (holding that district court erred in denying suppression motion following Frankshearing where application omitted fact that two percipient witnesses denied seeing marijuana on property). In the alternative, if the Court is unable to ascertain whether the officers acted intentionally or recklessly in preparing and submitting Agent Pickette's affidavit, the Court should hold an evidentiary hearing to resolve this issue because Mr. XXX has made a substantial preliminary showing that the agent's affidavit contained deliberate or reckless misrepresentations. See Johns, 851 F.2d at 1133-34 (Franks hearing required where defendant made substantial preliminary showing that agents apparently lied about their ability to smell methamphetamine inside storage space).
CONCLUSION
For the foregoing reasons, Mr. XXX respectfully requests that this Court suppress all evidence and statements arising
from the illegal searches of his home, which searches occurred in violation of the Fourth Amendment. If the Court is
unable to ascertain the legality of the searches based on the parties' submissions, Mr. XXX requests that an evidentiary
hearing be held to resolve this issue. Finally, as a separate basis for suppression of the evidence, Mr. XXX further
requests that the Court order an evidentiary hearing pursuant to Franks v. Delaware in light of the material false
statements and omissions in Agent Pickette's affidavit.
Dated: December 18, 2000
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
1. Mr. XXX was permitted to keep six plants due to his medical prescription allowing him to grow marijuana for his personal use, pursuant to section 11362.5 of the California Health and Safety Code.
2. Suppression of the evidence obtained from the August 17 search is required for the further reason that the affidavit in support of the federal warrant omitted the crucial fact that the prior search had occurred without a warrant. See Franks v. Delaware, 438 U.S. 154 (1978). Instead, the affidavit characterized the search as having been lawfully conducted pursuant to a warrant. The consequences of this material omission and misrepresentation will be discussed in Section II herein.
3. Because it was clear that the tan-brown house was not described in the warrant authorizing only a search of the blue-and-white house, the government may not rely on the so-called "Leon exception" here, United States v. Leon, 468 U.S. 897, 926 (1984), which precludes application of the exclusionary rule where officers rely in good faith upon a warrant. Here, the officers could not have searched Mr. XXX' home in good faith reliance on the warrant because it was apparent that Mr. XXX lived in a separate house that was not described in the warrant. See United States v. Williamson, 1 F.3d 1134, 1135-36 (10th Cir. 1993) (rejecting Leon exception where warrant failed to particularly describe place to be searched such that no reasonable officer could have relied on it);United States v. Ellis, 971 F.2d 701 (11th Cir. 1992) ("[E]ven if the officers can be said to have relied on the warrant, that reliance surely was not reasonable once the officers discovered that the only information in the warrant was erroneous."); cf. Leon, 468 U.S. at 923 ("a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid").
4. The government may rebut this presumption with proof that an exception to the warrant requirement justified the officers' otherwise illegal conduct. "Any exception to the Fourth Amendment warrant requirement must be proven by a preponderance of evidence, and this burden is upon the government." United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989) (emphasis added). Here, in light of the absence of exigent circumstances, the officers' mere knowledge that Mr. XXX was growing marijuana on his property would be insufficient to justify their intrusion into his home.See United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (emphasis added) (characterizing marijuana cultivation as "a particularly non-exigent suspected crime, involving neither violence nor mobile contraband"); Payton, 445 U.S. at 588 ("absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within").
5. The interview constituted tainted fruit of the illegal search because the content of the interview derived directly from the August 1 search. Mr. XXX' statements during this interview must therefore be suppressed. See Murray, 487 U.S. at 536 (noting that the exclusionary rule "prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search").
6. This information was obtained by Officer Downs during an interview with John Haagensmit, the owner of a hardware store called True Value. The date of the interview with Mr. Haagensmit was not provided, nor was the officer's basis for contacting this person. However, it may be assumed that the information is tainted because it appears that the officers decided to contact Mr. Haagensmit as a result of ammunition found in Mr. XXX' house. That ammunition bore
price tag stickers from "Coast to Coast hardware," which is the previous name of Mr. Haagensmit's hardware store. See Application, Pickette Affidavit, Ex. F, at 11.
7. After eliminating false information and/or adding omitted information, the court must consider the "totality of the circumstances," under Illinois v. Gates, 462 U.S. 213 (1983), to determine whether or not probable cause has been established. See United States v. Dozier, 844 F.2d 701, 706 (9th Cir. 1988).