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 REPLY ON
) MOTION TO SUPPRESS
v. ) EVIDENCE AND STATEMENTS
)
CARL EUGENE XXX, )
) Date: January 19, 2001
Defendant. ) Time: 11:00
__________________________________________) Honorable Susan Illston
INTRODUCTION
Mr. XXX' house was searched on two occasions in blatant disregard of the Fourth Amendment, first by state agents and
then by federal agents. The agents who conducted the federal search presented the magistrate with material
misrepresentations regarding the nature of the initial state search. The government contends that suppression is not
warranted because Mr. XXX' house was an "outbuilding" that was particularly described in the warrant for the August 1
search. In the alternative, the government argues that the agents searched the house in good faith reliance on the warrant,
such that the application submitted to Magistrate Zimmerman contained no tainted evidence. In the event that the Court
suppresses the evidence obtained from the state search, the government then argues that the remaining evidence was
nonetheless sufficient to support issuance of the federal warrant. Finally, the government contends that the agents'
misrepresentations in the application for the federal warrant were not material and no Franks hearing is required. All of
these contentions are without merit.
ARGUMENT
I. THE STATE SEARCH WAS NOT AUTHORIZED BY THE WARRANT
AND THE LEON EXCEPTION DOES NOT APPLY BECAUSE THE OFFICERS ACTED OUTSIDE THE
AUTHORIZATION OF THE ISSUING MAGISTRATE
A. Mr. XXX' Home Cannot Be An Outbuilding of the XXX Home Because it is Not on the Curtilage of the XXX
Home and Because a Separate Residence Is Not An Outbuilding
Without authority and without argument, the government flatly contends that Mr. XXX' private residence was an "outbuilding" that fell within the terms of the warrant. This claim raises two related issues: first, whether the mere inclusion of the term "outbuilding" in the warrant will authorize the search of any structure on the property; and second, whether one person's private residence may ever be an "outbuilding" in relation to another person's separate private residence located nearby. Both of these issues turn on the question of whether a separate residence, with its own yard and surrounding fence, may fall within the curtilage of another residence. The term "curtilage" describes the area around one's home in which the owner of the home has a reasonable expectation of privacy. See Black's Law Dictionary (6th ed. 1991, abridged) at 266; United States v. Soliz, 129 F.3d 499, 502 (1997). Where a warrant authorizes the search of a home, the warrant also authorizes the search of structures within the curtilage that are within the control of the person who lives in the home.
Not all land around a home falls within the curtilage of that home. For this reason, not all buildings near a home may be considered "outbuildings" within the curtilage. Instead, unless the magistrate issuing the warrant was presented with independent probable cause for a search of a specific outbuilding, the outbuilding must sit on the curtilage of the home described in the warrant to fall within the scope of the warrant. See United States v. Furrow, __ F.3d __, 2000 WL 1509977, *10 (9th Cir. Oct. 12, 2000). "If the outbuildings were not within the curtilage of the residence, then the mere fact of their inclusion in the scope of the warrant is immaterial." See id. (1)
Here, then, Mr. XXX' home must have been within the curtilage of Mr. XXX's home to be considered an "outbuilding" of the XXX home. On this question, "[t]he extent of curtilage is determined by whether the individual [here, Mr. XXX] may reasonably expect that the area in question [here, the XXX home and yard] should be treated as the [XXX] home itself." See id. Here, Mr. XXX' home is clearly not within the curtilage of Mr. XXX's home, and Mr. XXX would not reasonably expect that Mr. XXX' home and yard would be treated as part of his own home. Indeed, Mr. XXX and Mr. XXX have gone to great lengths to physically separate their homes from eachother. The homes and yards are divided by a fence that surrounds the XXX property, even to the extent that a small lattice fence has been erected to the left of the XXX garage to create a narrow opening leading to the XXX house. See Ex. E-4 - E-5, attached to Def. Motion to Suppress. At the time of the search, Mr. XXX pointedly advised the officers of the distinct nature of the homes as well as the fence on the property. Mr. XXX has lived in the property for eight years and pays $300 per month in rent. See Ex. H at 1 and Ex. K at 4, attached to Def. Motion. He has his own account for cable television which is mailed to his distinct cabin address. See Ex. A, attached to Def. Motion to Suppress. Mr. XXX' home is built of wood and has a sidewalk around the front of the house; it has its own front, side, and back yards enclosed by fences as well as its own shed. See Ex. E-4 - E-8. Far from being within the curtilage of the XXX home, Mr. XXX' home has its own curtilage -- including the sidewalk, yards, and shed -- in which he has his own reasonable expectation of privacy.
A resolution of this issue in the government's favor would require a determination that a fully functional, free-standing private residence may be an "outbuilding" of another person's house. The government has provided absolutely no authority for this expansive interpretation of the word "outbuilding" but instead simply asserts that because the XXX house is on the same side of the property as the XXX garage, "XXX' residence cannot be considered to be separate and distinct from Ronald XXX's residence." Gov. Opp. at 14. In fact, in Agent Edwards' affidavit submitted with the government's opposition, Agent Edwards provided his own understanding of the term "outbuilding" to explain why he included that term in the warrant, and even his understanding does not stretch to meet the government's needs here. As he stated:
In my experience in the area of Fort Bragg and other rural communities in Mendocino County, it is not unusual for
homeowners to build detached bedrooms on their property. Also, it is no [sic] uncommon to find pump houses, sheds,
and other detached buildings and structures. Accordingly, I routinely seek authorization, in search warrants, to search
outbuildings in addition to any main residence.
Declaration of Daniel Edwards, submitted with Gov't Opposition, at 4-5. Under this explanation, an outbuilding is an adjunct of the "main residence" that serves some purpose related to the main residence. Impliedly, outbuildings are those buildings which are under the custody and control of the main resident. As noted earlier, at the time Agent Edwards submitted his application, he had not even seen the XXX house and thus did not even know it was there. Applying Agent Edwards' definition, Mr. XXX' home is not a detached bedroom, pump house, or shed. It is not an adjunct of the XXX home and is not under the custody or control of Mr. XXX. Indeed, it serves no functional purpose in relation to the XXX home, but instead is a fully functional separate house with its own kitchen, bathroom, living room, and bedroom. See Ex. E-9 - E-12. Mr. XXX is a renter on the property who exercises his own control over his own home and yard. Based on Agent Edwards' own understanding of the term "outbuilding," there is simply no basis to apply that term here to Mr. XXX' separate home.
The government's interpretation of the word "outbuilding" would render the warrant an impermissible "general warrant" of the type that the Fourth Amendment is designed to preclude. Indeed, because the government has offered no principled limitation on its use of the word "outbuilding," any of Mr. XXX's immediate neighbors could have found themselves subjected to a search of their homes as well. (2)
An instructive analogy may be found in United States v. Cannon, a recent case from the Eastern District of California. In that case, a DEA special agent applied for a warrant to search an address in Chico, California based upon information from a cooperating witness that drug activity was occurring on the property. See United States v. Cannon, 104 F.Supp.2d 1214 (E.D. Cal. June 20, 2000). At the time he applied for the warrant, the agent knew there were two structures within the fence surrounding the property but he did not advise the judge regarding the second structure because he reasonably assumed it was a garage. See id. at 1215. The search warrant described the place to be searched as a double-story, single family dwelling. It then included among the articles to be seized "vehicles, structures, storage areas, residences . . . " See id.
In fact, the second structure, while connected to the main residence by a wooden deck, had been converted into a supplemental residence. Attached to the second residence were two storage sheds that could only be accessed from the second home. See id. at 1215-16. Upon executing the warrant, agents entered the second home where they found evidence that it was being used as a residence. See id. at 1216. With keys taken from the defendant, the agents then proceeded to the sheds where they found and seized hundreds of marijuana plants. See id.
The Cannon court considered the same question posed here: whether the warrant authorized the search of the second residence when the warrant itself referred to no such residence. See id. The district court rejected the government's argument that the warrant included the second house, reasoning: "Here, the suburban setting, the detached and distinct character of the accessory building, the absence of indicia of it being a garage or having any functional relationship to the main building, all lead to the conclusion that the warrant did not extend to the accessory building." Id. at 1217. Because the separate XXX house serves no purpose in relation to the XXX house and does not fall within the curtilage of the XXX house, the XXX house cannot be an "outbuilding" and the warrant therefore did not authorize its search.
B. The "Good Faith" Exception is Inapplicable Because the Officers Recognized that Mr. XXX Lived in a Separate House Before They Entered and Because the Separate House was not Described in the Warrant
The government argues that, even if the XXX house was not described in the warrant, the evidence located in the XXX house and yard should not be suppressed because the officers acted in good faith reliance on a facially valid warrant. This argument fails because Mr. XXX has not challenged the facial validity of the warrant. Rather, Mr. XXX contends that the warrant simply failed to include the XXX house within its terms. The government's argument that Mr. XXX' home was an "outbuilding" does not rest upon a technical failing of the warrant, such as a typographical error in the address even though the property is otherwise correctly described. Instead, the government now attempts to justify the officers' conduct by creating an expansive definition of the term "outbuilding," even though Agent Edwards himself understood that term to encompass only those structures that serve a functional purpose related to the main residence. Because the officers here acted outside the limitations set by the issuing judge, the Leon exception is inapplicable.
The "good faith" exception to the exclusionary rule is intended to apply when a magistrate erroneously issues a warrant
under circumstances where the officers involved would not be expected to recognize the mistake. The exclusionary rule is
designed to deter police misconduct rather than legal errors of judges and magistrates. See Illinois v. Krull, 480 U.S. 340,
349-52 (1987). Hence,
[t]he corollary of the above reasoning is that the exclusionary rule should not be applied where the violation is the fault of the officers. If there is no error on the part of the judiciary, the good-faith exception is inapplicable. Stated differently, the good-fath exception is not relevant where the violation lies in the execution of the warrant, not the validity of the warrant. Under such circumstances, suppression will presumably deter future violations and the exclusionary rule serves its purpose.
United States v. Gantt, 194 F.3d 987, 1005 (9th Cir. 1999).
Here, it is not the facial validity of the warrant that is challenged, but rather the officers' execution of the warrant in utter disregard of the limitations imposed by the issuing magistrate. The good faith exception thus does not apply.
In Maryland v. Garrison, 480 U.S. 79 (1987), the Supreme Court considered whether a search could be upheld even though the officers mistakenly searched the wrong apartment. InGarrison, the officers obtained a search warrant for a suspect and the "third floor apartment" where he was believed to reside. The officer who obtained the warrant believed that the suspect was the only tenant on his floor. See id. at 85 n.10. In fact, there were actually two separate apartments on the third floor and the officers entered the wrong apartment without realizing their mistake, seized contraband, and then discontinued the search after discovering their error. See id. at 86.
The Supreme Court found that the officers' conduct was reasonable under the circumstances, but noted that if the officers had become aware of the ambiguity in the warrant before entering the living quarters, they would have been obligated to search only the designated suspect's apartment and the good faith exception would have been inapplicable. See id. at 86. Here, in contrast to Leon, the officers realized before they had even entered the XXX house that his home was a separate and distinct residence. Indeed, Mr. XXX informed the officers that he and Mr. XXX lived in separate homes separated by a fence. The officers first conducted a search of the XXX house and then encountered Mr. XXX on the walkway in front of his house, which Agent Edwards described as "a small separate residence behind the garage." The officers then told Mr. XXX that they had a search warrant authorizing the search of his separate residence. The officers' own statements and conduct thus demonstrate that the officers recognized before searching Mr. XXX' house that he lived in a separate house. There was no mistake in the warrant, because the warrant only authorized a search of the XXX house. Rather, the mistake was made by the officers in the field, who acted outside the terms of the warrant. The Leon exception is therefore inapplicable.
The best that can be said of the government's argument is that it misses the point of the Leonexception. The government has not identified a single defect in the warrant, much less one that could be ascribed to a mistake by the issuing judge. The warrant issued by the judge adheres to the description of the property given to him by Agent Edwards, who did not describe the tan house because -- as he now claims -- he had not even seen it. Assuming for the sake of argument that Agent Edwards had not seen the tan house or fence during his surveillance, this fact alone demonstrates that the judge could not have authorized a search for the tan single-family residence because if Agent Edwards failed to describe it, the judge could not authorize a search of it.
The defendant perceives no ambiguity in the issuing judge's intent or in the language of the warrant itself. Nonetheless, even if there were such an ambiguity, the Leon exception still would not apply. The Cannon court, on facts virtually identical to those here, also considered the applicability of the Leon exception. Finding that the government's reliance on Leon was misplaced, the court stated:
The instant case unlike Leon does not turn on a good faith reliance on a facially valid warrant subsequently found to be
issued without probable cause. Rather, the case involves a search conducted outside the authority of the warrant, i.e.,
outside the areas which the warrant authorized to be searched. The very rationale for Leon, good faith reliance on the
magistrate's authority, is simply inapplicable to a case such as this.
See Cannon, 104 F.Supp.2d at 1219 (internal citation omitted). In short, the government has offered no principled basis on which to conclude that the judge recognized there was a separate home at the address and, with that knowledge, authorized its search.
As the court in Cannon concluded:
At best, from the Government's view, the matter at bar may be viewed as one in which the issue of what could be
searched was ambiguous. In such circumstances, however, the executing officers are not relying on the terms of the
warrant, but on their personal view as to how the ambiguity should be resolved. Whatever their good faith, under such
circumstances, they are clearly relying on something other than the magistrate's determination, which is the sine qua non
of Leon.
See id. For this reason, the evidence obtained from Mr. XXX' house and yard during the August 1 search must be suppressed.
C. The Fact That Probable Cause Might Have Supported a Warrant for Mr. XXX' House Does Not Excuse the
Failure of the Officers to Obtain a Warrant Prior to Conducting the Search Because the Officers Were Obligated
to Secure the Residence and Obtain a Warrant
In its opposition, the government essentially argues that the failure of the warrant to include Mr. XXX' home is immaterial because the officers had probable cause for a search of his home even though it was not described in the warrant. In support of this argument, the government offers the statement of Agent Edwards that, while he had received a tip regarding marijuana growing on the property and had acted to confirm the tip, he did not see either the tan XXX house or the fence dividing the property when he conducted his surveillance. This contention is surprising, particularly regarding the fence, given the visibility of both the house and the fence in the previously submitted photograph of Mr. XXX's backyard. See Ex. E-3, attached to Defendant's Motion. The government implies that because the officers thought Mr. XXX lived in the blue-and-white house at the time they sought the warrant, it is not significant for Fourth Amendment purposes that he actually lived in another separate house nearby. This argument must fail for two reasons.
First, with reference to Maryland v. Garrison, the government argues that the agents did not know at the time the warrant was issued that XXX and XXX both lived on the property. See Gov. Opp. at 15. In fact, the government obfuscates the pertinent issue, which is what the officers knew about the two houses prior to their entry of the XXX house, rather than at the time the warrant was issued. Whatever the officers thought at the time they sought the warrant, the evidence here clearly demonstrates that at the time they executed the warrant, the officers recognized Mr. XXX lived in a separate residence before they entered his house. Significantly, the government has offered noevidence to the contrary. Armed with that knowledge, the officers were obligated to discontinue their efforts to enter his house, secure the residence, and obtain a warrant before continuing with the search. See Segura v. United States, 486 U.S. 76, 810 (1984).
The officers' failure to secure the residence and obtain a warrant appears to have been based solely on their belief that they had probable cause to enter Mr. XXX' home anyway, such that the formality of obtaining a warrant was unnecessary. As the government states in its opposition, "had officers in the instant case known that XXX resided in the outbuilding behind the garage, and had officers specifically described the building in the warrant, probable cause would have existed to search XXX' residence." Gov. Opp. at 15.
The government's argument, an attempt to validate the officers' conduct because the officerscould have obtained a warrant even though they failed to do so, would obliterate the warrant requirement if it were adopted here. It does not matter whether the issuing judge would have issued a warrant for the separate XXX house had he been informed that there was such a building behind the described blue-and-white house. He was not so informed, and it is the function of the Fourth Amendment to require his prior authorization before the officers in the field conducted a search of the private XXX residence. Indeed, as Mr. XXX noted in his opening brief, this is true "even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within [the home]." See Payton v. New York, 445 U.S. 573, 588 (1979).
II. MAGISTRATE ZIMMERMAN WOULD NOT HAVE FOUND PROBABLE CAUSE TO ISSUE THE FEDERAL WARRANT IF THE TAINTED EVIDENCE HAD BEEN PURGED FROM THE AFFIDAVIT
The government argues 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 points to (1) the evidence offered in state court by Agent Edwards in his application for the state warrant, including 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.
First, the tip and corroboration of the tip could provide no basis for the subsequent issuance of a second warrant because the marijuana identified by the informant and confirmed by Agent Edwards was eradicated during the August 7 search. See Investigation Report, at 5, 7. (3) Thus, any information regarding marijuana growing under a tarp at the back of the property would have been both stale and inaccurate had that information been presented to Magistrate Zimmerman. Indeed, 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. As Agent Pickette himself explained in his affidavit to Magistrate Zimmerman, all but six plants on the XXX portion of the property had been eradicated at the time of the initial search. See Pickette Affidavit, attached to Def. Motion as Ex. F, at 5-6. Accordingly, there is no reason to conclude that Magistrate Zimmerman even considered the tip or the surveillance in his issuance of the federal warrant. Rather, as Agent Pickette explained, the basis for the federal warrant was to locate and seize specified evidence that had been left behind after the state search, evidence which was itself tainted by the officers' observations and conduct during the initial illegal search.
Second, the government argues that Mr. XXX' statements on August 7 provide probable cause to support issuance of the federal warrant, and are admissible because the statements were sufficiently attenuated from the initial illegality. In fact, the primary taint had not been purged at the time of the interview notwithstanding Mr. XXX' apparent consent. This case is unlike the facts ofWong Sun v. United States, 371 U.S. 471 (1963), cited by the government, because Mr. XXX did not present himself to the police station to make a confession. Instead, the officers returned to his house on August 7 armed with specific questions arising from the August 1 search. At that time, Mr. XXX had not been advised of the illegality of the August 1 search, so his purported consent was infected with the erroneous belief that all the seized evidence would be admitted against him. 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. Indeed, only six days had elapsed between the search and the questioning; there were no intervening circumstances; and the police misconduct, including the initial search and the officers' failure to advise Mr. XXX regarding the defect in the search, was particularly egregious. (4)
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. In his affidavit submitted to Magistrate Zimmerman, Agent Pickette summarized the interview with Mr. XXX as follows:
(a) XXX stated that he is part of a militia and is the head of the legal defense division of this militia. XXX stated that he owns a "massive amount of guns" but doesn't possess them. XXX stated that the weapons were located at this militia "center", but did not disclose the location of this "center." . . . .
(b) XXX stated that the members of the militia keep in touch by email. This form of electronic mail is typically transmitted via computer.
(c) S/A Edwards also told me that he saw two marijuana plants growing on the property and could detect the odor of marijuana while at the property. XXX stated that when he is not at the property he has friends come over and tend to and protect the marijuana plants. According to XXX the weapon and ammunition that was located and seized from his residence during the previous search was not his and belonged to his friend, Barbara Zemlack. XXX stated that Zemlack had brought the rifle over to protect the marijuana plants.
Pickette Affidavit, Ex. F, at 6.
None of these statements provide probable cause to believe that as of August 7, Mr. XXX was engaged in a large-scale growing operation on his property. Indeed, because almost all of the plants had been eradicated, he was certainly discussing his practices in the past, which do not provide a basis for a search warrant for current evidence of such conduct. Nor did Mr. XXX' statements provide a basis to believe that he had weapons on the property, or to believe that he owned additional properties where guns were buried in barrels. Instead, he specifically stated that his weapons were stored at a militia center. Finally, the comment regarding email is not relevant to either marijuana cultivation or the possession of weapons.
The two plants that Agent Edwards saw on the property, perhaps together with Mr. XXX' comments, are thus the only remaining evidence that could provide a basis for the magistrate's finding of probable cause. This showing utterly fails to demonstrate "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). During the state search, Mr. XXX was authorized by Agent Edwards to keep six marijuana plants 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. Even if this Court accords no deference to Mendocino County's enforcement policy, the existence of two plants on the property -- without evidence of additional plants elsewhere -- could not provide a basis for a full search of the residence but instead only for the seizure of those plants. (5)
III. UNDER FRANKS V. DELAWARE, MR. XXX HAS MADE A SUBSTANTIAL PRELIMINARY SHOWING
THAT THE MISSTATEMENTS AND OMISSIONS WERE INTENTIONALLY OR RECKLESSLY MADE
BECAUSE THE FALSITIES WERE CLEARLY CRITICAL TO THE MAGISTRATE'S DETERMINATION
OF PROBABLE CAUSE
The government continually argues that, whatever misrepresentations there may have been in Agent Pickette's affidavit and application, those misrepresentations were not intentional or reckless, such that no Franks hearing is required. In fact, to meet the showing required for a Franks hearing, Mr. XXX is not required to demonstrate that the officers acted in bad faith. Even if direct evidence of intent or recklessness is lacking, the government fails to address the fact that intent and recklessness may be inferred where the agent's misstatements were "clearly critical" to the probable cause determination. See e.g., United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993). Here, because all of the misrepresentations concerned issues that were clearly critical to the magistrate's determination, intent and recklessness may be inferred. Should the Court decline to order suppression on the grounds argued above, a Franks hearing is required.
A. The Agents Failed to Provide the Magistrate With Sufficient Information For Him to Determine Whether the Evidence and Knowledge From the State Search Should Properly Be Considered
Initially, the government argues that there is no Franks issue regarding the nature of the state search because that search was legally conducted pursuant to the warrant and the officers therefore had no obligation to fully inform the magistrate regarding the living arrangements at the property. This argument assumes a legal conclusion that has not yet been resolved. In fact, even on the limited information provided by Agent Pickette, Magistrate Zimmerman obviously had questions about the propriety of the state search because it now appears that he called AUSA Christina Hua to ask her whether the evidence seized during the initial search had been suppressed in state court. See Gov. Opp. at 22 n.3. AUSA Hua replied that this was not the reason for the federal application. See id. (6)
Magistrate Zimmerman's question regarding the propriety of the state warrant points to the precise issue raised by the defendant in this request for a Franks hearing: because the agents failed to properly advise the magistrate regarding the separate nature of the two houses, the magistrate was precluded from determining the propriety of the state search. On the evidence presented to him, he was left with the impression that the state search must have been valid because Agent Pickette referred to the XXX house as merely a "small separate residence," while giving no indication that Mr. XXX exercised exclusive control over that residence. Had the magistrate been fully advised, he would have recognized that the XXX house had not been included within the terms of the state warrant and was illegally searched. After redaction of the evidence arising from the state search, there would not have been sufficient remaining evidence to support issuance of the warrant. Frankstherefore requires that the federal warrant be voided and the evidence suppressed. See United States v. DeLeon, 979 F.2d 761, 765 (9th Cir. 1992).
B. The Agents Failed to Properly Inform the Magistrate Regarding Indicia of Separate Residency or Ownership
Regarding the presence of "indicia" pertaining to residency and ownership, the government now contends that the term "indicia" specifically referred to papers and other physical evidence that could be seized, and not to the officers' observations regarding the physical layout of the property or who lived where. See Gov. Opp. at 8-9, 23. As with the government's expansive definition of the term "outbuilding," the government now attempts to create and apply a new definition for the term "indicia" in order to support its version of events. In fact, under Agent Pickette's own use of the term, "indicia" was clearly intended to encompass statements and observations. As Agent Pickette stated in his affidavit:
According to S/A Edwards, other than XXX' and XXX's statements, officers did not seize any indicia regarding residency or ownership from either structure. S/A Edwards is uncertain whether he saw any indicia relating to residency or ownership of either structure.
Pickette Affidavit, Ex. F, at 5. Presumably, Agent Edwards referred in part to the statement Mr. XXX made regarding the fence on the property. (7) The government acknowledges this statement by Agent Pickette but then incongruously attempts to argue that "indicia" refers only to physical items. On the face of the affidavit, there is no basis to make such a distinction. Indeed, if true, why would Agent Pickette have referred to the statements of the suspects in the same discussion of "indicia"? Most importantly, the defendant has carefully reviewed the documents submitted to the magistrate and has been unable to find any reference to the fence on the property. Whether or not the fence constitutes "indicia regarding residency or ownership," it was certainly something about which the agents were obligated to inform the magistrate because it demonstrated that Mr. XXX' house was a physically separated residence that had not been described in the state warrant.
C. Agent Pickette's Statement Regarding "Guns in Barrels" Was the Only Evidence Supporting the Request to
Locate and Seize Documents Pertaining to Ownership of Additional Property
Finally, in a footnote, the government attempts to dismiss Agent Pickette's exaggeration of Mr. XXX's statement regarding "guns in barrels" by pointing to other evidence of gun possession and marijuana cultivation. See Gov. Opp. at 25 n.4. Once again, the government misses the pertinent question, which is the impact of the statement regarding guns in barrels on the magistrate's decision to issue the warrant for specified categories of evidence. Here, Agent Pickette relied on that statement to request authorization to search Mr. XXX' house for documents pertaining to Mr. XXX' ownership of additional properties. During the August 7 interview, Mr. XXX only said that he owns additional weapons that are stored at a militia center. This statement provides no basis to conclude that Mr. XXX owns additional properties, because the militia center is presumably a complex utilized by an entire group. Mr. XXX did not claim to have an ownership interest in the center.Because there was no other evidence to suggest that Mr. XXX owned additional properties, and considering that the government concedes Mr. XXX's statement was misrepresented by Agent Pickette, there was no probable cause to support issuance of a warrant for this purpose.
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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. 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: January 12, 2001
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
1. Notably, as will be discussed below, Agent Edwards did not intend to refer to the XXX house by his inclusion of the term "outbuilding" in the warrant application. In fact, he now claims that he did not even know the XXX house existed at the time he completed the application, such that the term "outbuilding" instead referred to hypothetical additional structures that may have existed on the property, rather than any structures that Agent Edwards had actually seen. The agent's failure to specifically identify the XXX house will be discussed below in the context of the Leonexception.
2. The government' reliance on United States v. Alexander, 761 F.2d 1294 (9th Cir. 1985), is misplaced. Alexander involved a rural property and a temporary structure that could be easily used to hide contraband. The defendant who challenged the search of the trailer owned the entire property and had control over the entire property. See id. at 1301. The Ninth Circuit noted that it was obligated to uphold the warrant "if probable cause existed to search each building, or if all the buildings on the ranch were under common control." See id. By contrast, Mr. XXX lives in a developed area, in a permanent building constructed of wood, and has exclusive control over the area on which he lived. The magistrate was not advised regarding the existence of the XXX house, and the officers' determination in the field regarding probable cause is insufficient to support the warrantless search of a private residence. While the Alexander court noted that a search of separate dwellings may be justified "if the entire property is suspect," see id., the defendant has found no cases addressing this scenario beyond United States v. Cannon, 2000 WL 780171 (E.D. Cal. June 20, 2000), in which the search was held to exceed the terms of the warrant.
3. In his affidavit, Agent Pickette states that six plants were left growing in the back yard. However, the investigation report does not indicate whether the six plants were actually in the yard or were instead in the shed next to the house. Nonetheless, the existence of plants in the backyard, if true, would have been tainted knowledge obtained through the state search and could not have been relied upon.
4. For the same reasons, Mr. XXX' statements on August 17 must also be suppressed. At the time that he made those statements, Mr. XXX' house had just been searched for the second time and he had still not been advised regarding the unlawful nature of the initial search. Nor was he advised regarding the officers' deceptive conduct in their application for the federal warrant. Accordingly, the attenuation exception is inapplicable.
5. The government presumably relies upon the "plain view" exception to support the admissibility of this observation. However, Agent Pickette failed to explain where Agent Edwards saw the plants. If the plants were growing inside the shed attached to the house or in some other private area, then Agent Edwards relied upon Mr. XXX' consent in order to see them -- consent which was tainted by the primary illegality of the initial search. The plain view exception would thus be inapplicable.
6. As a factual contention provided by AUSA Hua, this description of the conversation must be supported by an affidavit. See Civil Local Rule 7-5(b); Criminal Local Rule 47-2(b). Mr. XXX therefore requests an evidentiary hearing or appropriate declaration under oath regarding the full text of this conversation.
7. In fact, Agent Pickette's affidavit does not even appear to include Mr. XXX's statement, instead simply noting obtusely, "XXX claimed that he lived in this smaller residence in the back of the property behind the garage." See id. at 4. The agent's failure to provide Mr. XXX's statement thus left Magistrate Zimmerman with the unfortunate task of hunting through the attachments, searching for a statement by Mr. XXX that would not be found.
Under the agents' representation of the living arrangements, the magistrate could have concluded that Mr. XXX' house was not a true separate residence but instead perhaps a temporary structure, detached bedroom, or second residence controlled by Mr. XXX in which Mr. XXX merely claimed to live. This is patently incorrect, and the agents were obligated to advise the magistrate fully regarding the physical layout and the character of the two residential structures so that he could determine the validity of the initial search.