INTRODUCTION
The parties in this matter appeared before the Court on January 19, 2001 on defendant XXX' motion to suppress all
evidence and statements obtained through two searches of his home occurring on August 1, 2000 and August 17, 2000.
At the hearing, the Court permitted supplemental briefing and posed the following question: Assuming that the initial
search by state agents was conducted in violation of the Fourth Amendment, could Magistrate Zimmerman nonetheless
have authorized a subsequent federal search on the basis of the federal warrant application, including the attachments
pertaining to the state warrant? Herein, Mr. XXX submits his response to the Court's question.
ARGUMENT
I. IF THE AUGUST 1 SEARCH WAS UNLAWFUL, THE EVIDENCE OBTAINED THROUGH THAT
SEARCH MUST BE SUPPRESSED REGARDLESS OF THE OFFICERS' SUBSEQUENT CONDUCT IN
OBTAINING A FEDERAL WARRANT
Before addressing the Court's question, it must initially be noted that, whatever the effect of the second warrant and search, it would not be possible for the second warrant to ratify the admissibility of the items that had already been located and seized during the first search. The Court may recall that, in its opposition to Mr. XXX' motion to suppress, the government contended that the evidence from the first search should be admissible because the agents had probable cause for the search and could have gotten a warrant. Indeed, the agents did get a warrant and conducted a second search soon thereafter. However, the fact that the agents could have gotten a warrant at the time of the first search -- and that they then searched the house again pursuant to a later-obtained warrant -- is no basis for admission of the evidence that was seized on August 1 because such logic would obliterate the warrant requirement. Rather, the fact that the agents could have obtained a warrant compels the conclusion that they should have obtained a warrant, such that their fail to do so requires suppression of the evidence seized. The government's argument essentially relies upon the so-called "inevitable discovery" doctrine, which will permit the admission of evidence that is lawfully seized even though it was initially discovered by officers through unlawful means. As relevant here, the Ninth Circuit has found this doctrine inapplicable where it is invoked in an attempt to ratify the unexcused failure to obtain a warrant. As the Ninth Circuit noted in United States v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995):
If evidence were admitted notwithstanding the officers' unexcused failure to obtain a warrant, simply because probable
cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery
doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant
requirement. We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if
we assume that the detectives were in possession of competent evidence showing probable cause at the time of the
search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.
See id. Here, if the initial search was unlawful, the items seized during the August 1 search must all be suppressed notwithstanding the subsequent search of the property pursuant to the federal warrant. Those items initially seized during the August 1 search, listed in Agent Edwards' Investigation Report at pages 6-8, include all but six of the marijuana plants; all cut marijuana and packaging materials; the .270 caliber Ruger rifle; the various kinds of ammunition found in the Rubbermaid container, leather belt, and paper bag; and the primers and fuses. See Defendant's Motion to Suppress, Ex. D, at 6-8.
II. PROBABLE CAUSE WOULD NOT HAVE EXISTED FOR THE FEDERAL SEARCH WARRANT HAD
THE TAINTED INFORMATION BEEN PURGED FROM THE APPLICATION
Assuming that the state search on August 1 was unlawful, all evidence and knowledge obtained from that search must be purged from the federal warrant application. Proceeding from that assumption, the admissibility of the evidence obtained through the federal search on August 17 thus raises a separate question. To answer this question, the Court must determine whether probable cause would exist on the basis of the remaining untainted evidence. As one way of framing this question, the Court has queried whether the federal warrant could have been issued on the basis of the unredacted information in the entire warrant application, which would include the attachments pertaining to the state warrant. This question was briefly addressed by the government in its opposition. There, the government argued that even if the state search was an impermissible warrantless search, probable cause still existed to issue the federal warrant on the basis of the remaining untainted evidence. As untainted evidence, the government pointed to (1) the citizen's tip regarding marijuana growing on the property under a tarp and Agent Edwards' surveillance of the property and corroboration of the tip; (2) Mr. XXX' statements on August 7; and (3) Agent Edwards' observation of two marijuana plants growing on the property during the August 7 interview.
At the hearing on Mr. XXX' motion to suppress, the Court specifically raised the question of whether the citizen's tip and the officer's surveillance -- the only facts that predated the warrantless state search -- could have provided probable cause for the warrant issued by Magistrate Zimmerman. Mr. XXX will first address whether those facts, in isolation, could have provided a basis for the federal warrant. Second, Mr. XXX will address the government's contention that the three pieces of allegedly untainted evidence, taken together, would have provided probable cause.
A. The State Warrant Application Could Provide No Basis for Probable Cause to Seize Either Marijuana Plants,
Indicia of Marijuana Cultivation, or Firearms Indicia (1)
1. The Agents Who Prepared the Federal Application Knew that the Plants Observed During the Tip and Surveillance
Had Been Eradicated During the State Search
Initially, it must be noted that Agent Pickette did not attempt to rely upon the application submitted in state court to argue that probable cause existed for the federal warrant. Instead, his own affidavit focused almost exclusively on the materials that were seized and observed during the initial state search. As a corollary, he discussed materials that were left behind in the house, such as additional indicia of marijuana cultivation, as well as materials that were not located, such as indicia of property ownership or residency. On the basis of the materials either left behind or not located, Agent Pickette averred that a subsequent federal search was necessary. Assuming that the state search was illegal, the agents' knowledge regarding materials that were left behind or not located is itself tainted knowledge, and could not be relied upon to support the federal warrant. See, e.g., Murray v. United States, 487 U.S. 533, 536 (1988) (officers who illegally entered warehouse and observed bags of marijuana could not rely on their knowledge of the marijuana in support of application for warrant).
It is indeed true that Magistrate Zimmerman was entitled to rely upon the entire application, notwithstanding the tainted evidence and knowledge, to determine whether probable cause existed for a federal search. However, Agent Pickette did not even mention the tip or surveillance in his affidavit in support of the federal warrant, nor did he incorporate Agent Edwards' affidavit into his own affidavit by reference. This is most likely because the information regarding the tip and surveillance could not be relied upon by the government as a basis for the federal warrant because the agents submitting the application knew that all of the plants observed during the tip and surveillance had been eradicated during the state search. See Investigation Report, at 5, 7. Had Agent Pickette attempted to rely upon the state warrant application to argue that probable cause existed for a federal warrant, he would have been forced to misrepresent the character of the property as it existed on the date of his application because he knew that the plants in the backyard, together with the tarp and piping structure, were no longer there. As a result, the information arising from the tip and surveillance was both stale and inaccurate, and could provide no good-faith basis for officers to seek the federal warrant. Under the question posed by the Court, the agents would have submitted the identical application as previously submitted to the state court, even while knowing that the plants and the bulk of the evidence were gone. Such action would have amounted to an intentional reliance on information that the officer knew to be false, and would have provided a separate basis for suppression of the evidence. See Franks v. Delaware, 438 U.S. 154 (1978) (intentionally false statement or omission regarding material fact requires suppression of evidence).
For this reason, Agent Pickette did not discuss the tip and surveillance and instead focused on the evidence that was seized and observed during the state search, in support of his argument that probable cause existed to search for the remaining evidence. Indeed, assuming that Magistrate Zimmerman based his probable cause determination on the entire application, the magistrate himself would have concluded that the tip and surveillance were no basis for the federal warrant because Agent Pickette's affidavit informed him that those plants no longer existed. See Pickette Affidavit, attached to Def. Mot. to Suppress as Ex. F, at 4-5.
Finally, while the prior existence of the plants might provide a basis to search specific buildings on the property for
evidence of marijuana cultivation, the state application could not have provided a basis to authorize the search of Mr.
XXX' house because the state application does not mention his house. Rather, if the state application is read in isolation
from the tainted facts in Agent Pickette's affidavit -- as the Court's question directs -- the magistrate would have a basis
only to authorize a second search of the blue-and-white house that was observed and specifically described by Agent
Edwards. This is because the agents did not know that Mr. XXX lived in a separate brown house until they conducted the
search. See Declaration of Daniel Edwards, submitted with Gov't Opp., at 3-4. Thus, the agents' knowledge regarding the
brown house as is also tainted and must be purged from the federal warrant application. See Murray, 487 U.S. at 536.
Any federal warrant issued on the basis of the state application would therefore fail to include Mr. XXX' house for the
same reason that the state warrant failed to include it: there is no mention in the state application of the brown house
because Agent Edwards had not seen it and therefore could not request authorization to search it.
2. If Magistrate Zimmerman Had Considered Only the Tip and Surveillance as a Basis for the Federal Warrant, the
Warrant Could Not Have Authorized the Seizure of Firearms or Firearms Indicia
Assuming that Magistrate Zimmerman had considered only the information that predated the federal search -- including the tip and surveillance -- the next level of inquiry requires an analysis of what specific items the magistrate could have authorized to be seized. Specifically, the issuing judge may only authorize the seizure of those items that are described in the warrant application and for which probable cause exists to believe will be found on the premises. This limitation stems from the particularity requirement of the Fourth Amendment. See Marron v. United States, 275 U.S. 192, 196 (1927) ("The 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."). For this reason, the items seized during a search must be limited to the terms of the warrant. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394 n.7 (1971).
Where officers fail to adhere to the terms of the warrant, suppression of all items seized may be required as a remedy for the officers' flagrant disregard of the warrant, including even those items that were described in the warrant. See United States v. Medlin, 842 F.2d 1194, 1196 (10th Cir. 1988) ("[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant"); United States v. Foster, 100 F.3d 846, 850-51 (10th Cir. 1996).
Contraband that is not described in the warrant may be seized if the officers adhere to the terms of the warrant but find additional undescribed contraband in plain view. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (quotation marks and citations omitted) ("[u]nder [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object--i.e., if its incriminating character is not immediately apparent,--the plain-view doctrine cannot justify its seizure."). The unlawful nature of the item must be immediately apparent. See Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (stolen stereo was not admissible under plain view doctrine where officer, lawfully on the premises due to exigent circumstances, moved stereo to view serial number to determine if it was stolen).
Here, the warrant application and affidavit submitted in state court contained no mention of firearms or firearms indicia. See Edwards Affidavit and Petition in Support of Search Warrant, attached to Def. Motion to Suppress as Ex. C, at 4-7. Thus, the state warrant did not authorize the seizure of firearms or firearms indicia. See State Search Warrant, attached to Def. Mot. to Suppress as Ex. B, at 1-2. For this reason, it must be noted that even if the state warrant had specifically described Mr. XXX' brown house as one of the buildings to be searched -- which it did not -- the seizure of the Ruger rifle and ammunition seized on August 1 would merit suppression because the warrant failed to include any mention of firearms. The only factual basis for seizure of such items would arise from facts showing that the items were found in plain view and that the officers had reason to believe that Mr. XXX' possession of weapons and ammunition was unlawful. This fact-intensive inquiry cannot be answered on the present record, because Agent Edwards' Investigative Report contains no discussion of how or where these items were located. See Investigation Report, attached to Def. Mot. to Suppress as Ex. D. Here, however, this line of reasoning is inapplicable because Mr. XXX has argued that the entire search was unlawful, such that no separate argument need be made for suppression of the Ruger rifle and ammunition.
For the same reason that the officers would not have been authorized to seize firearms and firearms indicia on August 1, they also would not have been authorized to seize such items on August 17, because their only knowledge that firearms indicia would be found in the house came from their initial unlawful entry. Thus, assuming that the warrant submitted to Magistrate Zimmerman included only the facts contained in the state warrant application, no seizure of firearms or ammunition could be authorized by the federal warrant. In fact, firearms indicia were seized on August 17, including: .223 caliber ammunition, two reloading scales, a reloading trimmer, three scopes, a scope and bore sighter, and additional unspecified firearms indicia. See Return, attached as Ex. J to Def. Mot. to Suppress. These items must be suppressed.
B. The Remaining "Untainted" Evidence Listed By the Government Would Also Fail to Provide Probable Cause for the Federal Warrant
Although not directly addressed by the Court, the government contended in its opposition that two additional facts in the federal application would have provided probable cause for the federal warrant. These facts include Mr. XXX' statements on August 7 and the officers' observation of two marijuana plants during the August 7 interview. Under the assumption that the state search was unlawful, the statements on August 7 and the observations of two marijuana plants constitute tainted fruit that must be purged from the federal warrant application. Although the government points to Mr. XXX' apparent consent to the interview and his apparent consent to allow the officers on his property, that consent could not have been voluntarily given because Mr. XXX was proceeding under the erroneous assumption that all of the evidence seized on August 1 would be used by the federal government to prosecute him. Similarly, the officers' conduct in questioning Mr. XXX flowed directly from the illegal search on August 1, because they specifically questioned Mr. XXX about things that they discovered as a result of the illegal search: the gun they found in his house and his participation in the organized militia. Accordingly, applying the criteria of Brown v. Illinois, 422 U.S. 590, 603 (1975), the causal chain between the search and the statements had not been broken.
As Mr. XXX noted in his reply to the government's opposition, even if the statements are admissible for some reason, those statements do not provide probable cause for the issuance of a warrant to search the XXX residence. Rather, Magistrate Zimmerman received only a truncated summary of that interview in Agent Pickette's affidavit, which contained no indication that current evidence of marijuana cultivation or firearms possession would be located in Mr. XXX' house. SeePickette Affidavit, attached to Def. Mot. to Suppress as Ex. F, at 6. Rather, because almost all of the plants had been eradicated and the cultivation supplies had been seized, Mr. XXX was certainly discussing his cultivation practices in the past, which do not provide a basis for a search warrant forcurrent evidence of such conduct. Moreover, he specifically stated that his weapons were stored elsewhere and not at his home. Thus, the agents could not rely on Mr. XXX' statements to conclude that evidence of marijuana cultivation or gun possession would be found in his house. Instead, the only factual basis to support such a conclusion would be their knowledge that such items remained in the XXX house after the August 1 search, which knowledge is itself tainted by the primary illegality and could not be relied upon to support the warrant application.
Finally, with regard to the two plants seen by the agents on August 7, the same "taint" applies to the officers' knowledge of the two plants, because they went to the property to interview him only as a result of their search of his residence on August 1. Moreover, the officers presumably saw the plants only by virtue of Mr. XXX' consent to allow them onto the property, and this consent cannot be considered voluntary in light of the primary illegality of the August 1 search.
Even if the officers' observation of the plants is not tainted, that observation could provide no basis for the wide-ranging
and expansive warrant issued by Magistrate Zimmerman because the existence of two plants growing on the property does
not indicate that the property will contain evidence of a large-scale growing operation or firearms possession. See Illinois
v. Gates, 462 U.S. 213, 238 (1983) (probable cause requires "a fair probability that contraband or evidence of a crime will
be found in a particular place"). Finally, as Mr. XXX noted in his reply, he was authorized by Agent Edwards to keep six
marijuana plants at the conclusion of the state search, in conformance with the Mendocino County District Attorney's
medicinal marijuana policy. Mr. XXX' retention of the two plants was therefore not a crime and could not provide a basis
for the federal warrant.
III. EVEN IF THE REDACTED WARRANT PROVIDES PROBABLE CAUSE, THE COURT MUST
INDEPENDENTLY EVALUATE WHETHER THE OFFICERS WERE PROMPTED BY THE ILLEGAL
SEARCH TO OBTAIN THE FEDERAL WARRANT AND, IF SO, MUST SUPPRESS THE EVIDENCE
Even if the Court determines that probable cause would have existed for the federal warrant on the basis of the remaining untainted evidence, the Court must nonetheless conduct an additional inquiry into the motivations of the officers in obtaining the federal warrant. See Murray, 487 U.S. at 536 (notwithstanding existence of probable cause in redacted application, reviewing court must "explicitly find that the agents would have sought a warrant if they had not earlier entered [defendant's house]").
If the officers were prompted to obtain the federal warrant by the knowledge obtained through their prior illegal conduct, then the second warrant is impermissibly tainted and all evidence must be suppressed even if the magistrate was not influenced by tainted evidence. See United States v. Connor, 948 F.Supp. 821, 858 (N.D. Iowa 1996) (citing 5 Wayne R. LaFave, Search and Seizure § 11.4(f) (3d ed.1996)). The basis for this rationale is the so-called "independent source" rule, whereby the federal warrant may provide a foundation for admission of the evidence only if the officers' decision to obtain the warrant was truly independent from any prior illegal conduct. See Murray, 487 U.S. at 542; see also United States v. Restrepo, 966 F.2d 964, 970 (5th Cir. 1992) ("if the application contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry").
In Restrepo, the Fifth Circuit conducted this analysis and found that while the redacted affidavit would provide probable cause for the warrant, remand to the district court was nonetheless required for a determination under Murray of the officers' motivation in seeking the warrant. See Restrepo, 966 F.2d at 970-73; see also United States v. Hill, 55 F.3d 479, 481 (9th Cir. 1995) (remanding for determination of whether officers were motivated by prior illegal observation of firearm in seeking warrant). The Restrepo court described this task as follows:
unlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core
judicial inquiry before the district court on remand is a subjective one: whether information gained in the illegal search
prompted the officers to seek a warrant to search Regency. In the best of all possible worlds, of course, there will be
statements or other evidence directly probative of motivation or effect. But in the usual case, in which direct evidence of
subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.
See Restrepo, 966 F.2d at 972. See also United States v. Barth, 26 F.Supp.2d 929, 939 (W.D. Texas 1998) (search conducted pursuant to warrant was not "genuinely independent" of prior illegal search because officer "obtained as much information as he could" regarding prior illegal search before conducting search pursuant to warrant).
Here, the agents' motivation in seeking the federal warrant may be easily ascertained through a review of Agent Pickette's affidavit. This affidavit does not mention the tip or surveillance and recites no facts or observations that predated the August 1 search. See Pickette Affidavit, attached to Def. Mot. to Suppress as Ex. F. Instead, it discusses only the August 1 search and the agents' subsequent efforts to follow up on leads developed during the August 1 search.
Because Agent Pickette's affidavit demonstrates that the entire basis for the federal search was the information obtained
through the August 1 search, the federal warrant cannot be an "independent source" for the federal search. Hypothetically,
an "independent source" argument might be made if the federal search arose from new, unrelated leads or if the federal
application was submitted by different officers who, independent of the search on August 1, relied on different
information as a basis for the federal warrant. This hypothetical sequence of events, however, did not occur. Instead, the
federal application flowed directly from the coordinated actions of the officers involved in both searches, with Agent
Edwards providing Agent Pickette with extensive information regarding the first search, which Agent Pickette
summarized in support of the federal warrant. Indeed, the basis for the federal warrant arose from the fact that agents had
already searched the residence once and knew what they had left behind. See Pickette Affidavit, Ex. F, at 6 (noting that 12
marijuana plants were left growing on property and stating, "S/A Edwards also told me that law enforcement had left
enough cultivation equipment and supplies to maintain approximately 1,000 plants"). The second search was thus
specifically intended to complement the first search in a coordinated, two-step effort to remove all indicia of illegal
activity from the property. For this reason, even if the Court determines that the redacted affidavit could have provided
probable cause for the federal warrant, Murray requires suppression of all evidence because the officers' motivation in
seeking the federal warrant flowed entirely from the initial illegal search.
CONCLUSION
For the foregoing reasons, Mr. XXX respectfully requests that this Court suppress all evidence and statements arising
from the two illegal searches of his home. Although this Court has ample grounds upon which to grant the defendant's
motion, Mr. XXX alternatively requests an evidentiary hearing pursuant to Franks v. Delaware in light of the material
false statements and omissions in Agent Pickette's affidavit.
Dated:
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
1. In conducting this inquiry, the Court need not apply the deferential standard of review that is normally afforded to the decision of the issuing magistrate to issue a warrant. See United States v. Restrepo, 966 F.2d 964, 971 (5th Cir. 1992) ("we seriously doubt that it is appropriate to apply the deferential, substantial basis standard of review to the issuing magistrate judge's decision when the magistrate judge never considered the warrant affidavit purged of tainted information and the district court never reviewed such action of the magistrate judge").