BARRY PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX XXX XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX XXX,
_______________________________
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DEFENDANT XXX'S REPLY TO GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND MOTION REQUESTING ORDER TO REQUIRE THE GOVERNMENT TO COPY THE VIDEOTAPE
Date: October 31, 2000
Time: 2:30 p.m.
I. CONTRARY TO THE GOVERNMENT'S ARGUMENT, THE NECESSARY TRIGGERING CONDITIONS MUST APPEAR IN THE COURT-ISSUED WARRANT AND ATTACHMENTS THAT THE OFFICERS MUST CARRY IN THEIR IMMEDIATE POSSESSION SO THAT THEY MAY BE GUIDED IN THEIR ACTIONS AND PROVIDE INFORMATION TO THE PERSON WHOSE HOME IS BEING SEARCHED.
It is of utmost importance "that all parties be advised
[as to] when the search may first take place, and the conditions upon the occurrence of which the search is authorized and may lawfully be instituted." United States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998). Thus, "in order to comply with the Fourth Amendment, an anticipatory search warrant must either on its face or on the face of the accompanying affidavit, clearly, expressly, and narrowly specify the triggering event." Id.
In Hotal, the face of the warrant did not state the event which would trigger the execution of the anticipatory search warrant. The Court found that where there was no evidence that the executing officers took the affidavit with them when the warrant was executed, there were no assurances that either the officers understand the parameters of the warrant or the property owner was properly advised of the officers' authority to search. See id.
An anticipatory warrant presents a potential for abuse above and beyond that which exists in more traditional settings: inevitably, the executing agents are called upon to determine when and whether the triggering event specified in the warrant has actually occurred.
Id. at 1226 (citing United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993)).
In this case, the anticipatory warrant stated as its triggering event that when "any person" receives and takes the delivered package inside the residence, the warrant may be executed. The affidavit however at paragraph 42 states that if the defendant "is not at the residence to accept the package, then additional attempts will be made on each successive weekday (including Saturday or Sunday) . . . ." The triggering events as stated in the warrant and the affidavit are in direct conflict. The officers cannot be appropriately guided nor can the property owner be assured of the officers' authority to search. Where, as here, the triggering event is not specified clearly, expressly and narrowly, the Fourth Amendment is violated. All evidence found as a result of the unlawful entry in the residence must be suppressed.
II. CONTRARY TO THE GOVERNMENT'S CONTENTION, THE OFFICER'S BOILERPLATE LANGUAGE DOES NOT ESTABLISH PROBABLE CAUSE TO SEARCH THE HOME FOR ANYTHING OTHER THAN THE DELIVERED VIDEOTAPE.
Other than characterizing defendant's reliance on United States v. Weber as merely "erroneous," the government does not attempt to seriously distinguish United States v. Weber, 923 F.2d 1338 (9th Cir. 1991) from the instant case. There, just as in the present case, the officer used boilerplate language in an attempt to justify his extensive search for items he believed to be 'commonly associated with pedophiles.'
In Weber, the defendant had placed an order for pornographic pictures depicting minors. An anticipatory search warrant was issued which was to be triggered upon acceptance of the pictures. As in the present case, the warrant also gave the officers permission to search for many different items that the officer attempted to justify based upon his belief that these items would be found due to his prior experience with pedophiles, molesters, and pornography collectors. The court stated that this was not enough and provided an example to illustrate its point . . . "if it is shown that the occupant of the premises to be searched recently knowingly received two items of stolen property, . . . there is probable cause to search for those two items, but this alone does not establish a suspect's ongoing activities as a fence so as to justify issuance of a warrant authorizing search for other stolen property as well." Id. at 1344 (inner quotation and citation omitted) (emphasis added). Here, the government argues that there was probable cause to justify the general search based solely on the one mail order by the defendant and a juvenile conviction for lewd and lascivious acts upon a minor. Clearly, this alone does not establish a defendant's ongoing activities sufficient enough to justify a general search. "[T]o find probable cause for [these] materials . . . would be to justify virtually any search of the home of a person who has once placed an order for child pornography . . . ." Id. at 1344.
Because there was no probable cause to search for items other than the delivered videotape, all items found as a result of the violative search must be suppressed.
III. THE GOVERNMENT IGNORES RULE 16'S MANDATE THAT IT IS THE COURT WHICH MAY ACT TO DENY OR RESTRICT DISCOVERY; IT IS NOT WITHIN THE GOVERNMENT'S POWER TO DICTATE TO THIS COURT AS TO WHAT IT WILL OR WILL NOT PROVIDE IN DISCOVERY.
The cases relied upon by the government to justify its denial of the defendant's request to this Court are inapposite. Neither the Eighth Circuit nor the Fifth Circuit case addressed a protective order as a reasonable accommodation of both parties' interests. But see United States v. Stoner, CR 00-0187 VRW (N.D.Cal. Walker, J.) and United States v. Vandivere, CR 98-20059 JW (N.D.Cal. Ware, J.) (with protective orders in place, government provided defense with copies of contraband videotapes, photographs and a computer hard drive which was alleged to contain contraband images).
Defense counsel has attempted to make every reasonable accommodation and is willing to comply with further suggestions from this Court should that result in obtaining a copy of the videotape.
It is the government's burden to make the required "sufficient showing" prior to this court's determination to restrict or
deny discovery. See Rule 16(d)(1). The government has not addressed the reasonability of the issuance of a protective
order. Thus, the government has failed to meet its burden.
CONCLUSION
Accordingly, the defendant respectfully requests that defendant's motion to compel discovery and to suppress evidence be granted.
Dated: October 17, 2000
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
DAVID FERMINO
Assistant Federal Public Defender