Opinion
Docket No. 51, A04-140 CR (JWS), (Document No. 24).
April 14, 2005
RECOMMENDATION REGARDING MOTION TO SUPPRESS
Defendant Arthur Hollis moves to suppress all evidence obtained and derived from the execution of three search warrants for two residences and a storage facility on two grounds. Doc. No. 24. First, he contends that he has been denied due process because the government's confidential informant continued to commit drug trafficking felonies while acting as an agent for the government. Second, that the application and affidavit for the storage facility fails to adequately establish that the items being searched for were likely to be found on the premises to be searched. He also argues that the affidavits for the two residential premises failed to establish that either location is the residence of the targeted investigation and failed to establish that the things sought by the warrant are likely to be found on those premises. The United States filed an opposition at Docket No. 27. In response to the government's position that Hollis lacks standing to contest the searches, Hollis submitted his own affidavit addressing standing. See Docket No. 40. The government filed a supplemental brief. Docket No. 41.
The government states in its opposition that it does not intend to offer evidence seized in the search of the storage unit, that is, the target of search warrant No. A04-332 MJ. Accordingly, the recommendation does not address the contentions of the defendant with regard to the search warrant for Unit 1-21 Dimond Mini Storage.
The defendant requests an evidentiary hearing without specificity as to what evidence he would present as to a particular material factual issue. The motion to suppress asserts only legal issues, and the government opposes to an evidentiary hearing. The Magistrate Judge declines to set an evidentiary hearing based on the lack of showing by the defendant of a need for such hearing and hereby enters his recommendation that the motion to suppress by denied.
STATEMENT OF UNCONTESTED FACTS
On June 18, 2004, Detective Alvin Kennedy began an investigation of Arthur Hollis based on information provided by a confidential source (CS).Detective Kennedy knew that the CS had been convicted of a federal felony drug trafficking offense, and that the CS was cooperating in the hopes of mitigating his sentence on an open drug case. On August 18, 2004, the CS placed a telephone call to the defendant, who agreed to sell the CS drugs. The CS, who was searched both before and after the meeting was given $8,100 to purchase approximately nine ounces of crack cocaine.
Surveillance observed and monitored the CS as he met with the defendant at a Shell gas station on Mountain View Drive. There, the CS purchased nine ounces of crack cocaine; this transaction was recorded by law enforcement. The CS turned over the crack cocaine, which field-tested positive for the presence of cocaine, to law enforcement. After the purchase, surveillance followed the defendant back to 540 N. Hoyt St.
On December 9, 2004, law enforcement conducted surveillance of the defendant in an attempt to ascertain his current residence. Law enforcement stopped the vehicle and arrested the defendant. Officers searched the inside of the vehicle and recovered plastic wrapping consistent with cocaine packaging as well as a large digital scale. The scale had cocaine residue on it.
Both the defendant and the female (Ms. Jimmie) were interviewed and stated that they live at 540 N. Hoyt, #1. Law enforcement officers obtained a search warrant for this address and found that both the defendant and Ms. Jimmie had lied to them. Nothing in apartment #1 was found that linked either the defendant of Jimmie to the apartment. After the search, Detective Kennedy was able to speak to an employee of the landlord of the building, Dynamic Properties, who told Detective Kennedy that the defendant had been renting 540 N. HOYT, Apartment #2 since July 19, 2004.
Law enforcement officers then returned to 743 S. Bragaw in an attempt to find out which apartment the defendant and Jimmie were using. They contacted residents in each apartment except Apartment #2, where no one answered the door. Officers interviewed tenants and witnesses, who did not recognize the names Hollis and Jimmie. However, one tenant did tell officers that a "thin, cute native female with streaks in her hair frequented Apartment #2 with Black and Samoan males." Jimmie matched this description, had streaks in her hair, and the defendant is an African American male. The other tenants were eliminated as suspects and/or associates of Hollis and Jimmie.
Next, officers interviewed the owner of the apartment complex. The owner told officers that he thought Apartment #2 had been abandoned, but recently learned that someone was living there. The renter of the apartment was identified ans "Faith Manumalo," who, according to a different source, was known to be in New York with an outstanding federal fugitive warrant for drug trafficking.
As a result of law enforcement surveillance, interviews with neighbors and landlords, and the lies of both Hollis and Jimmie, search warrants were obtained for both the N. Hoyt address and the S. Bragaw address. Investigators recovered numerous items of drug paraphernalia, as well as items with cocaine residue throughout both apartments. Photographs picturing the defendant and paperwork with his name on it were also recovered.
STANDING TO SUPPRESS
A defendant is required to show standing even if the issue is not raised by the government. United States v. Nadler, 698 F.2d 995, 998 (9th Cir. 1983). Fourth Amendment rights may not be vicariously asserted; they are personal rights. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Rakas teaches that "the capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." 439 U.S. at 143. The Supreme Court in Minnesota v. Olson, 495 U.S. 91,99 (1990) ruled that overnight guests have a legitimate expectation of privacy.Minnesota v. Carter, 525 U.S. 83, 90 (1998), limits the Fourth Amendment protection based on a reasonable expectation of privacy to those persons who possess a "degree of acceptance into the household." The person who was in an apartment for the purpose of packaging cocaine which the court likened to a business transaction, could not have a legitimate expectation of privacy. Id. Mere presence at a location is insufficient to establish privacy standing. See, United States v. Lockett, 919 F.2d 585, 587-89 (9th Cir. 1990); United States v. Watts, 848 F.2d 134, 137 (9th Cir.), cert. denied, 488 U.S. 928 (1988). A residency or proprietary interest in the premises may give rise to standing. The defendant bears the burden of proving a legitimate expectation of privacy. Nadler, supra.
The affidavit of Arthur Hollis is dated March 22, 2005. He avers that the apartment located at 540 N. Hoyt, Apartment #2, in Anchorage is his apartment of residence over which he has total control and dominion. He further asserts that it was his apartment at the time it was searched and his belongings were there. The government has not taken issue with those statements, and I conclude that they are sufficient to provide Hollis with standing to challenge the execution of the search warrant at that residence.
Search warrant No. A04-331 MJ was issued for the search of 743 S. Bragaw, Apartment #2, in Anchorage. In direct contrast to Hollis's statements about the apartment on North Hoyt, he makes no such claim that the apartment on South Bragaw was his residence. Instead, he relies upon Officer Kennedy's conclusion in the application and affidavit for the search warrant wherein the officer submits that ". . . Arthur Hollis lives in the residences located at 743 S. Bragaw #2 and 540 N. Hoyt, Apartment #2, in Anchorage, Alaska." The affidavit clearly states that the officer believes that both apartments are being used to conceal and store items associated with trafficking in narcotics.
The standard for issuance of the search warrant is probable cause to believe that evidence or instrumentalities of a crime may be located in the particular premise. That is a different issue than a privacy interest in the premises needed to show standing to contest the search of the premises. According to Officer Kennedy's affidavit, Hollis and his female companion (Cathleen Jimmie) were seen exiting a vehicle and going into the apartment complex where they remained about two hours on December 9, 2004. Visiting an apartment does not confer standing. The affidavit describes evasive measures taken by Hollis in his visit to both apartments that day. Officer Kennedy provided only his conclusion that Hollis might reside in the S. Bragaw apartment. The officer could have been mistaken. Hollis's affidavit does not sufficiently allege standing to challenge the South Bragaw apartment search pursuant to search warrant No. A04-331 MJ.
SUFFICIENCY OF AFFIDAVIT(S)
The affidavits for the search of both residences contain many of the same allegations. It is axiomatic that a search warrant must contain probable cause to believe that fruits or evidence of a crime or contraband are likely to be found on the premises sought to be searched. Both search warrants authorized a search and seizure for the same type of property. See, attachment A to each of the search warrants. In essence the property consisted of U.S. currency, items related to drug proceeds, statement of accounts, storage locker or safe deposit keys, wire transfer documents, cellular telephones, flight itineraries, fraudulent identification documents, surveillance equipment, the identity of a person(s) in control of the premises, documents related to the sale of cocaine or controlled substances, identity of coconspirators, drug distribution paraphernalia, and weapons. These items were sought as fruits, evidence, or instrumentalities of a drug-trafficking crime concerning a violation of 21 U.S.C. §§ 841, 846, and 856 (drug distribution, conspiracy to traffic in narcotics, and money laundering).Officer Kennedy's affidavit sets forth his training and fourteen-year experience with the Anchorage Police Department, and his assignment as a task force officer with the Drug Enforcement Administration (DEA). It states that he has investigated approximately 200 or more cases involving illegal drugs, and in his experience has found that the distribution of cocaine is frequently a continuing activity occurring over months and years. He also describes indicia of drug traffickers to include the following: maintain an inventory, keep records of their illegal activities to maintain contact with criminal associates for future transactions, conceal in their residences and businesses currency, financial instruments, and other items of value which are proceeds from drug trafficking; receipts of expenditures of large sums of money, utilization of wire transfer companies, including the use of nominee senders to disguise the origination of the funds, use cash deposits for deposits into a co-conspirator's bank account to facilitate the movement of U.S. currency throughout the trafficking organization's area of operations; utilization of express parcel delivery companies to facilitate the movement of controlled substances and monies throughout the area of operations; utilization of fraudulent identification to purchase airline tickets, send wire transfers, rent residences and storage facilities, and subscribe to telephone/cellular telephone service; maintain equipment and supplies involved in the purchase, dilution and repackaging of cocaine for distribution; use of hand-written notes regarding travel itineraries, couriers, hotel information, and contact telephone numbers; utilization of scanners and security cameras and communications equipment to protect and conceal their operation from law enforcement; to possess firearms and ammunition to protect their drugs and assets; to use prepaid cellular telephones and prepaid long distance calling cards, to attempt to legitimize their profits from distribution of drugs. The affidavit states that Officer Kennedy has participated in at least 200 search and seizure warrant executions and recovered items as described above.
The affidavit cites case law holding that with respect to drug traffickers, evidence is likely to be found where dealers live and a search warrant may be properly issued against a suspected drug dealer's residence, notwithstanding the lack of direct evidence of criminal activity at the residence. In United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986), the Ninth Circuit Court of Appeals stated: "direct evidence that contraband or evidence is at a particular location is not essential to establish probably cause to search the location." Id. at 1399, citing United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985). The appellate court held that a Magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. Id., citing, United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978). "In the case of drug dealers, evidence is likely to be found where the dealers live." Id., citing, United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert. denied, 441 U.S. 965 (1979).
The affidavit describes an undercover purchase of narcotics from Hollis by a confidential source on August 18, 2004. Law enforcement officers monitored and recorded the transaction between the CS and Hollis. Surveillance units followed Hollis back to 540 North Hoyt. On December 9, 2004, surveillance was conducted on Hollis in an attempt to ascertain his current residence. On this occasion, Hollis was followed to both 743 South Bragaw and 540 North Hoyt. Officers stopped the vehicle in which Hollis and his girlfriend were traveling and arrested Hollis based on his activity that occurred on August 18, 2004. A search of the vehicle disclosed plastic wrapping consistent with cocaine packaging, a large digital scale containing a white powdery residue consistent with the appearance of cocaine. Both the plastic wrapping and scale tested positive for the presence of cocaine in a field test. The affidavit also describes how Hollis and the female both stated that they lived at 540 North Hoyt #1, whereas in fact they did not. The affidavit describes the officers' investigation to determine where Hollis did live. The officers talked with a landlord of the apartment complex at 540 North Hoyt, and contacted tenants at 743 South Bragaw where they obtained a description of a female and companion seen at that complex. The general description matched that of Hollis's girlfriend and Hollis. Apartment #2 was the only apartment at that complex in which no one responded when law enforcement officers attempted to contact its occupants. Thus, the Magistrate had ample probable cause to connect Hollis with the crime of drug trafficking and the premises with that alleged drug activity.
The magistrate need not determine that the evidence sought is, in fact, on the premises to be searched or that the evidence is more likely than not to be found where the search takes place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1567 (9th Cir. 1989). Hernandez-Escarsega citesAngulo-Lopez for its holding that in the case of drug dealers, evidence is likely to be found where the dealers live.Hernandez-Escarsega further instructs that a warrant need only be reasonably specific in its description of the objects of the search, and details need not be elaborated. 886 F.2d at 1567, citing, United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987). I conclude that the search warrant(s) at issue contain sufficient specificity as required by the Fourth Amendment.
Use of Confidential Source
As a factual predicate for his due process claim, Hollis provides the following statement of facts: A confidential informant working for DEA was engaged in ongoing felony drug trafficking while he was acting as an agent of the DEA. The CS did not have "public authority" to engage in such conduct at the time he was acting on behalf of the government. Hollis faults the DEA agents for failing to determine at the time they were working with the CS whether he was continuing in his pattern of criminal conduct since his history of involvement with drug trafficking was known to the agents prior to the establishment of their relationship with the CS.
The affidavit in support of search warrant candidly discloses that the agents learned after the informant made an undercover buy that (unknown to them at the time) he had continued in drug trafficking activities. The affidavit states that the CS was, in fact, charged with a crime for that activity. I reject the argument that the application for the search warrant is defective because it did not set forth "how or exactly when the CS's drug trafficking activities were discovered." The nature of the informant's promise to the government, if any, to refrain from dealing in drugs outside the scope of his agreement with the government is a matter for trial testimony. The government has acknowledged its duty to provide exculpatory information to the defendant pursuant to Brady v. Maryland.
Hollis speculates that the CS was "allowed to remain in business" as long as he continued to deliver subjects to the DEA for prosecution. Again, this is mere speculation; the government need not defend the informant's credibility on an attack against the four corners of a search warrant. I reject the argument that the Magistrate Judge should not have issued the search warrant(s) because the court could infer from the CS's double-dealing with the government that he was not reliable while engaging in the undercover purchase for the agents. The affidavit sufficiently describes precautions by the officers for purposes of probable cause to believe that Hollis made a sale of drugs to the CS on August 18, 2004, as alleged. According to the affidavit the CS was searched both before and after the purchase and used prerecorded buy funds. Law enforcement monitored the transaction between the CS and Hollis and the crack cocaine produced by the CS field-tested positive for the presence of cocaine. The proper place and time for the defendant to argue that the "controlled-buy" drugs came from the CS and not the government is at trial.
Hollis argues that the evidence must be suppressed based on the government agents' deliberate ignorance of the informant's illegal activities. Hollis does not argue that the agents deliberately turned a blind eye to criminal activity of the CS or, worse yet, knowingly allowed him to continue his own drug activity while working for them. To draw such an inference from the facts of record at this point is mere speculation. Case law is replete with an acknowledgment that the government must often utilize informants with a criminal past in order to conduct illicit business with a criminal target. The means of ferreting out crime is sometimes a dirty business.
Here, the government has not attempted to conceal from the issuing magistrate the exculpatory activities of its confidential source before the investigation of Hollis could conclude. Such candor does not suggest a deliberate failure by the government to fulfill its duty to fight crime. The government has no absolute duty to prevent its citizens from committing crimes. No entrapment issue is presented in the motion to suppress. Hollis has failed to demonstrate that the government has denied him due process because it utilized a confidential informant who allegedly engaged in his own criminal activity while purporting to cooperate with law enforcement officers in the hopes of mitigating his/her potential sentence after being discovered in the possession of a large quantity of crack cocaine.
That a government informant would choose to lead a double life by engaging in crime while working with the government is not so grossly shocking or outrageous as to violate the universal sense of justice. See, United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). The government has indicated that it has made efforts to bring the CS to justice for his criminal activities. This happenstance does not insulate Hollis from any criminal activity he engaged in by entitling him to suppression of the evidence obtained, in part, by use of the confidential source.
For the above reasons, the defendant's motion to suppress lacks merit. The motion should be denied. IT IS SO RECOMMENDED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, April 21, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, April 27, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).