BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX ,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. CR-99-0100 VRW
AND TO SET EVIDENTIARY HEARING
Date: June 13, 2000
Time: 2:30 p.m. TO: UNITED STATES OF AMERICA, PLAINTIFF; AND ROBERT MUELLER, UNITED STATES ATTORNEY; AND LAUREL BEELER, ASSISTANT UNITED STATES ATTORNEY.
PLEASE TAKE NOTICE that on June 13, 2000, in the courtroom of the Honorable Vaughn R. Walker, XXX XXX will move this Court to suppress all evidence seized during the search of his home on March 11, 1999. He will so move on the grounds that:
1. the search warrant was not supported by probable cause because the supporting affidavit contained fabricated
information attributed to two nonexistent informants;
2. the "bare bones" affidavit failed to allege corroborating information and, therefore, even if the allegations contained
therein had not been fabricated the issuing court did not have sufficient corroboration;
3. the federal agents and San Francisco police officers who searched Mr. XXX's home did not provide a copy of the
search warrant to Mr. XXX or show him a copy of the search warrant.
The evidence to be suppressed consists of all tangible and intangible evidence obtained as a result of a search of the residence at XXX, apartment 1, San Francisco, CA, the garage located at that address and Mr. XXX's vehicle parked in that garage. Such evidence includes but is not limited to all documents, paper, currency, photographs, alleged controlled substances or paraphernalia for the use or manufacture thereof, ammunition and explosives seized on the day of the search.
PERTINENT FACTS
Defendant XXX XXX is charged in a two-count Indictment with two violations of 21 U.S.C. § 841(a)(1), Possession with Intent to Distribute Cocaine Base and Possession with Intent to Distribute Cocaine.
On March 10, 1999, a San Francisco Superior Court Judge issued a search warrant for the residence at "XXX #1, San Francisco, CA" and for the person of "XXX XXX SF#503711." See Exhibit 1 (search warrant). The search warrant incorporates by reference two attachments:
1. Exhibit A to the Affidavit of Officer Paul Lozada (appended hereto as Exhibit 2) which is a boilerplate document
listing the evidence which Officer Lozada hoped to recover as well as the places which he expected to recover them; and
2. Exhibit B to the Affidavit of Officer Paul Lozada (appended hereto as Exhibit 3), which is a portion of a boilerplate
document which lists other items to be seized.
On the day the warrant was issued, DEA agents, federal housing agents and local police officers executed the warrant on the property, the person of Mr. XXX, the garage and Mr. XXX's vehicle located within that garage. The agents searched the premises and seized various items of evidence. See Exhibit 4 (Return). Although Mr. XXX repeatedly asked to see a copy of the search warrant at the outset of the search, he never received a copy of the search warrant either upon the agents' entry or departure. See Exhibit 6, attached declaration of XXX XXX.
The affidavit in support of the search warrant application (Exhibit 5) recounts information received from two confidential informants. One of the informants allegedly informed Officer Lozada that Mr. XXX made his living from selling crack cocaine and that Mr. XXX is a "close associate of 'Douglas Stepney' a well-known narcotics trafficker in the San Francisco area." See Exhibit 5. This informant is also alleged to have told Officer Lozada that "on several occasions for the past year" he/she has bought drugs from Mr. XXX and has done so at Kirkwood and Mendell Streets. See id. The informant also is alleged to have stated that he/she knows that Mr. XXX stores large quantities of crack cocaine at his house. See id. Officer Lozada asserted that this informant has "provided information which has proven reliable in all instances." See id.
Regarding the second informant, Officer Lozada asserts that Officer Michael Bolte contacted Officer Lozada with information he had received from a confidential informant. According to Officer Lozada's affidavit, Officer Bolte told him that the informant stated that he/she was "recently" within Mr. XXX's residence and observed a large-quantity of crack cocaine and two assault-type weapons. Again according to Officer Lozada, this informant has provided information to Officer Bolte "which has proven reliable in all instances." See Exhibit 5.
There is no information in the affidavit regarding how or how well either informant knows Mr. XXX. There are no dates provided for either informant as to when their relevant observations were made. There is no description of the inside of Mr. XXX's home which might serve to substantiate either informants' information. Although CRI#2 claims to have been inside the home of Mr. XXX, according to the affidavit every purchase of drugs he/she allegedly made from Mr. XXX occurred on Kirkwood and Mendell Streets.
Officer Lozada, in his affidavit, also alleges that one controlled buy took place sometime between March 5 and March 10, 1999, at an unknown time at Kirkwood and Mendell Streets. CRI#1 is alleged to have conducted the transaction and did not identify XXX XXX as the seller. Officer Lozada identified XXX in the affidavit as the person who sold the drugs. He includes in his type-written/computer-generated affidavit a hand-written statement that he "recognized the above black male to be 'XXX XXX.'" See Exhibit 5. According to the officer, he knows Mr. XXX from prior arrests and contacts and claims to have personally seen Mr. XXX "amongst gang members and drug dealers." Id.
No dates or circumstances are given for the officer's alleged prior arrests, contacts or sightings of Mr. XXX.
Contrary to the information allegedly received from the officer's informants and the alleged sale of drugs by Mr. XXX which Officer Lozada claims to have witnessed, Mr. XXX did not sell any drugs on the street in 1999. See Exhibit 6. He has never sold drugs near Kirkwood and Mendell Streets. Id. He does not know of a "Douglas Stepney" and has never been a member of either the "Kirkwood Set" or the "Big Block Gang." Id. XXX XXX has never had any assault weapons in his home at 30 Espanola Street, #1, San Francisco, California. Id.
XXX XXX does not believe that these informants actually exist and has submitted a declaration under penalty of perjury that directly repudiates the allegations attributed to these "individuals." See Exhibit 6. For this reason, Officer Lozada's credibility will be central to this Court's determination of the facts in question. In this connection, Mr. XXX brings to this Court's attention, and takes no joy in so doing, the fact that Officer Lozada has incurred numerous citizen complaints including but not limited to planting drugs on a citizen, conducting numerous warrantless, nonconsensual, nonexigent entries and searches, using racial slurs, conducting unlawful detentions and arrests, and stealing seized money. See Exhibit 7, numerous citizen complaints filed under penalty of perjury against Officer Paul Lozada.
Officer Michael Bolte has also incurred numerous complaints including but not limited to warrantless, nonconsensual, nonexigent entries and searches, unlawful detentions and arrests, retaliatory action in response to earlier complaint filed by a citizen, harassment, and planting drugs on a citizen. See Exhibit 9, numerous citizen complaints filed under penalty of perjury against Officer Michael Bolte.
ARGUMENT
I. OFFICER LOZADA MISREPRESENTED MATERIAL FACTS IN THE AFFIDAVIT IN SUPPORT OF A SEARCH WARRANT IN AN EFFORT TO MISLEAD THE ISSUING COURT REGARDING THE EXISTENCE OF PROBABLE CAUSE.
In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), the United States 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 allegedly false statement was necessary to the finding of probable cause. Id. at 2676; see also United States v. Johns, 851 F.2d 1131, 1133-34 (9th Cir. 1988). At this stage, clear proof of deliberate or reckless misstatements is not required, but rather is reserved for the evidentiary hearing. See United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985); United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir. 1982). Thus, Mr. XXX may, upon the substantial showing outlined above, request an evidentiary hearing to develop the factual basis for the suppression of the evidence. At the evidentiary hearing, if the defendants ultimately establish the required elements by a preponderance of the evidence, the Court must void the search and suppress the fruits thereof. See Franks, 98 S. Ct. at 2676.
A. The Informants Do Not Exist.
Mr. XXX has filed a Motion to Disclose the Confidential Informants alleged to exist by Officer Lozada. Such a motion is integral to his defense. The officer intentionally mislead the issuing court as to the existence of the informants and thus the existence of probable cause.
To challenge the veracity of an officer as to the existence of an informant, a defendant faces a difficult evidentiary problem. "To make a substantial preliminary showing, he must establish a negative -- that the informant does not exist ... despite considerable efforts by the Government to protect [the alleged informant]." United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983).
The first step in such a case should be an ex parte, in camera hearing to determine the existence of the informants. See id. at 1273. If the defendant is correct and the government is unable to produce the informants who are alleged to have given the information to Officer Lozada, the hearing must be extended. See id. The in camera hearing's purpose is to determine whether the defendant is entitled to an open evidentiary hearing on his Franksclaim. See id. At the in camera hearing, several individuals should be questioned: the informants provided (and presumably alleged to be the informants in the affidavit), as well as Officer Lozada, Officer Bolte, the officer cited in the affidavit, and any other individuals this Court deems necessary to the determination. See id. This "in camera hearing is not a substitute for an evidentiary hearing. Its purpose is merely to determine if [XXX] has made a threshold substantial showing of falsehood." Id. (inner quotation omitted).
In Kiser, the informant did exist. However, the person believed by the defendant to be the informant denied ever making the statements attributed to him by the officer. See id. On appeal, the Ninth Circuit determined that an in camera hearing should have been held in order to test the veracity of the affiant and remanded the case back to the trial court for the in camera hearing. See id. at 1269-70. The court said that in order to determine whether the defendant had made a substantial showing to justify a Franks hearing, the court must question the individuals involved. See id. at 1273.
This motion does not represent the first time that Officer Lozada has been accused of disrespecting civil rights generally and the Fourth Amendment specifically. See Exhibit 7;see also Exhibit 8, (regarding the dissolution of CRUSH, a police task force of which Officer Lozada was a member which was widely reputed to "frequently trample on the law"). (1)
Furthermore, numerous citizens have complained of his conduct and, despite significant institutional hurdles, a number of these complaints have been sustained. See Exhibit 7. Concretely, Officer Lozada has been accused of using unnecessary violence while conducting an unlawful stop, repeatedly calling the victim of that stop "nigger," acting like a thug when, while undercover, he viciously attacked a citizen who believed he was being mugged, stealing money that had been seized during a probation search, planting drugs on a citizen, discharging his firearm and wounding a citizen, and conducting warrantless, nonconsensual, nonexigent searches of citizens' homes.
Indicative of the lengths to which Officer Lozada will go in order to circumvent the requirements of the Fourth Amendment is the information he "received" from the informants he created. None of the information is true. Mr. XXX did not sell any drugs on any street in 1999. See Exhibit 6. He has never sold drugs near Kirkwood and Mendell Streets. See id. He does not know of any "Douglas Stepney" and has never been a member of either the "Kirkwood Set" or the "Big Block Gang." See id. Furthermore, XXX XXX has never had any assault weapons in his home at 30 Espanola Street, #1, San Francisco, California. See id.
Mr. XXX fully expects that Officer Lozada will not be able to produce the informants who are alleged to have provided the information. The information provided by the nonexistent informants forms the basis of probable cause for the issuance of the warrant. Based on the officer's intentional misrepresentation to the issuing court, this Court should grant Mr. XXX's request for a Franks hearing.
B. Officer Lozada Intentionally Misrepresented the Identity of the Seller as Mr. XXX.
Mr. XXX has never sold drugs at Kirkwood and Mendell Streets between March 5, 1999 and March 10, 1999 or at any other time. See Exhibit 6. The officer however, intent upon getting inside Mr. XXX's residence to search, intentionally misrepresented the identity of the seller as Mr. XXX to justify issuance of the warrant. This observation falsely claimed to have been made by the officer forms the basis of probable cause for the issuance of the warrant. This Court should grant Mr. XXX's request for a Franks hearing.
C. The Standard For Evaluating Evidence Following A Franks Hearing is De Novo.
The reviewing court must review de novo the original decision to issue the warrant. See United States v. Elliott, 893 F.2d 220, 222 (9th Cir. 1990). De novo review is appropriate because the probable cause and necessity questions "turn[] on the consequences of a fraud on the issuing magistrate. . . ." Id. (2)
A reviewing court must set the affiant's false statements to one side and then determine whether the affidavit's remaining content is sufficient to establish probable cause. See Franks, 438 U.S. at 156. If the affidavit is not sufficient, the warrant must be voided and the evidence suppressed. See id. Once this Court has conducted the Franks hearing and removed the offending misstatements, the affidavit will fail to establish the required probable cause and all evidence found as an indirect and direct result of the unlawful search must be suppressed.
II. ALTERNATIVELY, THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILED TO SUPPORT A PROBABLE CAUSE DETERMINATION BECAUSE IT WAS BASED ON UNCORROBORATED, NONSPECIFIC STATEMENTS OF BOTH INFORMANTS AND AFFIANT.
The Law of this Circuit Requires Probable Cause Determinations Based on More than Uncorroborated Allegations.
"Probable cause to justify a search warrant exists when there is a sufficient showing that incriminating items are located on the property to which entry is sought." United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir. 1991) (citing United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988). A court is to look at the "totality of circumstances" in determining whether a search warrant is supported by probable cause. See Illinois v. Gates, 462 U.S. 213 (1983). In other words, the magistrate must make a common sense determination that "given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238; see also United States v. Ventresca, 380 U.S. 102, 108 (1965) (The affidavit in support of a search warrant must be tested in a "common sense and realistic fashion.").
Here, the affidavit provides no information which substantiates either the informants' observations or the officer's observations. Although the affidavit claims that CRI#2 was inside the home of Mr. XXX -- no date or time frame is given and nor is there any description of the home to verify what the informant alleges. Furthermore, this informant is alleged to have only bought drugs from Mr. XXX at Kirkwood and Mendell Streets, never within Mr. XXX's home.
Regarding CRI#1, it is alleged in the affidavit that this informant was "recently" within the XXX residence and observed a large quantity of crack cocaine and two assault weapons. Just as with the other informant, there is no information regarding dates or a time frame during which the alleged observation was made. Neither informant describes either the inside or the outside of the XXX home so that this information can be substantiated by the officer.
Officer Lozada similarly fails to substantiate his alleged observations. Although he claims to have come into contact with Mr. XXX before via prior arrests and sightings of Mr. XXX "amongst gang members and drug dealers," he provided the issuing court with no information regarding dates, times or the circumstances regarding these observations.
This bare-bones affidavit cannot be relied upon as adequate protection of citizens' rights to be free from unreasonable searches and seizures. As such, the affidavit does not establish the required probable cause and the evidence should be suppressed.
III. THE FAILURE TO GIVE MR. XXX, WHO WAS PRESENT DURING THE SEARCH, A COMPLETE COPY OF THE SEARCH WARRANT JUSTIFIES SUPPRESSION OF THE EVIDENCE.
Rule 41(d) of the Federal Rules of Criminal Procedure states, in pertinent part, "[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall the copy and receipt at the place from which the property was taken." The copy of the warrant must be served at the outset of the search. See United States v. Gantt, 194 F.3d 987, 1001 (9th Cir. 1999).
In Gantt, although the resident was present while the search was being conducted and asked for a copy of the search warrant at the beginning of the search, the officers gave her a copy of the search warrant only after her apartment was searched, she had been arrested and had been taken to an FBI office. See id. The Ninth Circuit said that this does not meet the essential function of the warrant requirement which is to "assure [] the individual whose property is searched or seized under the lawful authority of the executing officer, his need to search, and the limits of his power to search." Id. quoting United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565 (1991). The court reiterated the historical purpose behind the warrant requirement . . . "power is a heady thing; and history shows that the police acting on their own cannot be trusted." Id. at 1002, quoting McDonald v. United States, 335 U.S. 451, 456 (1948). Because the officers ignored the resident's requests for a copy of the warrant at the outset of the search, the court upheld the district court's decision to suppress the evidence. See id. at 1005.
Here, DEA agents, federal housing agents and San Francisco police officers conducted the search of Mr. XXX's residence. Although Mr. XXX requested a copy of the warrant at the outset of the search, he was never given a copy. See Exhibit 6. After his home was searched, after he was arrested, and after he was taken to the police station, he was given a copy of the return. Although he again asked at the police station, the only copy he has ever received has been from his attorney. The government violated Rule 41(d). The evidence seized during the search of Mr. XXX's home, garage and car should be suppressed.
CONCLUSION
For the foregoing reasons, defendant XXX XXX respectfully requests that this Court suppress all tangible and intangible evidence seized as a direct result of the illegal search of Mr. XXX's residence, garage and automobile and any fruits of that search. Mr. XXX expects that the government will contest his factual assertions and, if so, he requests an evidentiary hearing to resolve disputed factual matters.
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
MARTIN ANTONIO SABELLI
Assistant Federal Public Defender
1. In light of its recent exposure to the inner workings of the local daily newspaper market, this Court may be less than sanguine regarding the reliability of information reported by the print media. Undersigned counsel submits, however, that Officer Lozada's reputation for disregarding civil rights (by lying and otherwise) is relevant to the credibility determination facing this Court. Undersigned counsel further submits that this reputation is supported by specific complaints against Officer Lozada. See below.
2. A misstatement or omission by a government official other than the affiant may also be a basis for suppression under Franks. United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992); United States v. Roberts, 747 F.2d 537, 546 n.10 (9th Cir. 1984). Because the magistrate must independently evaluate the affidavit, "the police cannot insulate one officer's deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity." DeLeon, 979 F.2d at 764 (citing 838 F.2d at 714) (citations omitted).