Opinion
Case No. 2:04-CR-60 TC.
December 3, 2004
ORDER
Defendants Juan Manuel Millan Rocha, Jesus Garcia Rocha, and Biridiana Becerra were indicted on charges of possession with intent to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendants have moved to suppress evidence obtained during searches of a vehicle on January 9, 2004, as authorized by a state warrant, and two apartments on January 26, 2004, as authorized by federal warrants.
Defendants assert that the affidavits in support of the search warrants are insufficient to establish probable cause. In addition, they argue that the "good faith exception" of United States v. Leon, 486 U.S. 897 (1984), does not apply. For the reasons set forth below, the court DENIES the Defendants' motion to suppress.
BACKGROUND
All facts are taken from the affidavits of Special Agent David J. Pezzutti, U.S. Department of Homeland Security, and Detective Lance Swanson, West Jordan Police Department, attached as exhibits to the Government's Memorandum in Response to Defendant's Motion to Suppress.
A. Contents of the Affidavit in Support of an Application for the Vehicle Search Warrant and Placement of Mobile Tracking Device
In his affidavit, Detective Swanson set forth his six years of employment with the West Jordan Police Department and enumerated his long experience and extensive training in narcotics investigation. (Detective Swanson Aff. in Support of an Application for a Vehicle Search Warrant and Placement of Mobile Tracking Device ("Aff.#1") at 2). Detective Swanson then recounted information about a potential narcotics distribution ring known as "The Company" which he had obtained from a Confidential Source ("CS") and from a Concerned Citizen ("CC"), both of whom remain anonymous. (Aff. #1 at 2-3) Detective Swanson swore that the CS provided complete information about himself/herself including name, birth date, social security number, and "all other pertinent information." (Aff. #1 at 3-4) Further, Detective Swanson noted that this CS had been used in other cases, had been found to be reliable, and that the information provided was corroborated by both himself and additional sources including the CC. (Aff. #1 at 3)
The CS gave Detective Swanson detailed information "about the trafficking and distribution of methamphetamine by a group that call themselves `The Company' in the Salt Lake Valley area." (Aff. #1 at 2). According to the CS, who admitted to purchasing "large quantities of methamphetamine several times in the past 6 months from the group," "The Company" received "approximately 40-50 kilograms" of methamphetamine in every shipment to the valley. (Aff. #1 at 2). The CS could identify only some of the participants and only by their first names, stating that one of the main suspects involved went by the name "Juan" or "Manuel" and that his girlfriend or wife went by "Dayana." (Aff. #1 at 2) The CS stated that "The Company" conducted business out of a middle-floor apartment located at 235 Gordan Lane (Aff. #1 at 2) and that it primarily used two vehicles in transporting the drugs: a silver Ford Expedition and a red Ford Taurus. (Aff. #1 at 2) The CS also stated that these vehicles were generally parked in or around stall #86 of the apartment complex and that Juan ordinarily drove the Ford Expedition. In addition to the apartment previously identified, the CS also revealed that there was an additional apartment used as a stash house, but could not identify such apartment. (Aff. #1 at 2)
The information provided by the CS was later corroborated by Detective Swanson's personal investigations and statements of the CC. Detective Swanson swore that he had "performed surveillance on the vehicles and apartment given by the CS, and confirmed the location as 235 Gordan Lane apt. #21, and that the described vehicles are indeed parked in and near stall #86." Further, Detective Swanson confirmed with the management of the apartment that parking stall #86 was assigned to apartment #21. (Aff. #1 at 3) The CC stated that he/she had seen the vehicles, including the Ford Expedition, parked in stalls #86 or #87 and watched people exit those vehicles and enter both apartments #21 and #30.
The CS alleged that the Ford Expedition was being used to transport methamphetamine into Utah from Arizona. (Aff. #1 at 2) Detective Swanson later confirmed that the Ford Explorer was registered to Juan Manuel Millan and Jesus Rocha Garcia living in apartment #21, 235 Gordan Lane. (Aff. #1 at 3). The CC stated that there was a short stay traffic at all hours of the day and night at apartment #21 and also at apartment #30, located directly above #21. (Aff. #1 at 3). The CC also identified various vehicles associated with the occupants of apartments #21 and #30 and provided license plate numbers for those vehicles. (Aff. #1 at 2) In addition to the silver Ford Expedition registered to Juan Manuel Millan, the CC identified a red 1998 Plymouth Breeze, later confirmed by Detective Swanson as registered to Dayana Guada Becerra, consistent with the statements of the CS. (Aff. #1 at 2).
The CC reported that he/she had seen several individuals carrying large black bags into both apartments #21 and #30 and from apartment #21 to #30. The CC observed that apartment #30 had no furniture except for a table. The CC acknowledged that he/she had not seen the original people who rented apartment #30, but stated that he/she had often seen the same people associated with apartment #21 arrive in the previously identified vehicles, go directly to apartment #30, and leave shortly thereafter. (Aff. #1 at 3) Detective Swanson's relates that the CC believed "that narcotics [were] being stored, picked up, and sold at both these locations." (Aff. #1 at 3) Relying on his training and experience, Detective Swanson believed that these actions were indicative of the existence of a stash house located in apartment #30 and consistent with ongoing narcotics distribution. (Aff. #1 at 3)
On the basis of the above-stated facts, Detective Swanson applied for a search warrant permitting the installation of a mobile tracking device on the silver Ford Expedition. (Aff. #1 at 4) This warrant was granted on January 9, 2004, by Judge William Barrett in the Third District Court of Utah and executed that same day.
B. Contents of the Affidavit in Support of an Application for the Search Warrants for Apartments 21 and 30
The affidavits in support of these applications are virtually identical in both content and form and it is for that reason they are being treated together. Additionally, the substance of Special Agent Pezzutti's affidavit is virtually the same as that of Detective Lance Swanson discussed above. In the interest of brevity, this recounting of facts will simply highlight the differences and additional facts included in these two subsequent applications.
In his affidavits, Special Agent David J. Pezzutti of the U.S. Department of Homeland Security first outlined his qualifications. (Special Agent Pezzutti Aff. in Support of an Application for a Search Warrant for Apartment 21 ("Aff. #2) at 1; Special Agent Pezzutti Aff. in Support of an Application for a Search Warrant for Apartment 30 ("Aff. #3") at 1).
In addition to giving information about the silver Ford Expedition and red Ford Taurus, Special Agent Pezzutti noted that the CS identified a Mercury Grand Marquis associated with the suspects in this case. (Aff. #2 at 2; Aff. #3 at 2). Special Agent Pezzutti stated: "The CC stated that on several occasions he/she has seen the occupants of the Expedition, Marquis, and the Taurus go inside of both apartments #21 and #30 carrying large black bags." (Aff. #2 at 2; Aff. #3 at 2) According to Special Agent Pezzutti, further investigation by him revealed that the Marquis, registered to Rodolfo Pereyda and Israel Acosta, "had crossed into the United States from Mexico at the Nogales Border crossing on December 4, 2003, at 1426 hours, consistent with the information provided by the CS." (Aff. #2 at 3; Aff. #3 at 3).
In his affidavits, Special Agent Pezzutti included information obtained through execution of the first warrant. He described how, in conjunction with the stop of the Ford Expedition, during which the car was seized and affixed with the mobile tracking device, K-9 Officer Kaer and his trained dog performed a drug sniff on the vehicle. The dog twice indicated the presence of drugs on the back seat, but no drugs could be found. (Aff. #2 at 3; Aff.#3 at 3)
On the basis of the above-stated information, Special Agent Pezzutti sought a warrant for the search of Apartment 21 and a separate warrant for the search of Apartment 31. On January 22, 2004, both warrants were issued by Magistrate Judge David Nuffer, of the United States District Court. The warrants were executed on January 26, 2004.
ANALYSIS
Defendants contend that these search warrants were not supported by probable cause and that the good faith exception to the warrant requirement does not apply in the present case. Specifically, Defendants assert that the informants were not determined to be sufficiently reliable to support a finding of probable cause, that the information provided in the affidavits was stale, and that no nexus between the objects of the searches and the locations of the searches had been established. In support of their assertion that the good faith exception to the warrant requirement does not apply, Defendants claim that the warrants were so lacking probable cause on their face as to make execution unreasonable. They argue that the judges wholly abandoned their judicial role in approving the warrant and that the federal warrants were executed in an unreasonable manner. The court's analysis will focus primarily on whether the warrants were supported by probable cause, but also whether, in the alternative, the good faith exception applies.
A. Were the Three Search Warrants Supported by Probable Cause?
In assessing probable cause, an affidavit must be viewed under the "totality of circumstances" test adopted by the United States Supreme Court in Illinois v. Gates. Specifically, a court must determine whether the issuing court made "a practical, common-sense decision whether, 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." Illinois v. Gates, 462 U.S. 213, 238 (1983). The court must determine whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a "substantial basis for concluding that probable cause existed."Gates, 462 U.S. at 214. The magistrate judge's decision to issue a warrant is entitled to great deference. Gates, 462 U.S. at 236; United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997). A reviewing court "should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).
Probable cause "requires a nexus between suspected criminal activity and the place to be searched." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (internal quotation marks and citation omitted). And "[a]n affidavit in support of a search warrant must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." Id.
1. Were the Confidential Source and the Concerned Citizen sufficiently reliable to find probable cause?
Defendants argue that reliance upon the Confidential Source was improper; that insufficient information was provided to assure the veracity of the CS' statements. Defendants assert that the affidavits provided no indication as to how the informant gained his or her knowledge of the operation, that the CS had very limited knowledge (e.g., that the CS did not know more than the first name of any of the suspects), and that there was no indication that the CS knew that drugs could be found at the suspected property at the time the warrant was issued. Defendants assert that the aggregate effect is that the reliability of the CS is so suspect as to nullify any finding of probable cause. Additionally, Defendants argue that the affiants failed to establish the veracity of the statements of the CC, thus rendering these statements unreliable and not sufficient for a determination of probable cause.
It is well-established that independent corroboration of information provided by an informant may provide the basis for a determination of probable cause. Draper v. U.S., 358 U.S. 307, 313 (1959). Further, probable cause exists as long as the "veracity" and "basis of knowledge" of persons supplying hearsay information and independent police investigation make it reasonably likely, based on the totality of the circumstances, that probable cause exists. See Gates, 462 U.S. at 238. The Tenth Circuit has explained that:
There is . . . no absolute requirement that law enforcement agents inquire into the source of the informant's information. All that is required to support probable cause is that enough information — beyond the mere conclusions of the affiant — be presented to the magistrate "to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process."U.S. v. Corral, 970 F.2d 719, 727 (10th Cir. 1992) (citations omitted). When there is sufficient independent corroboration of the information provided by an informant, there is no need to further examine and establish the veracity of the informant. Danhauer, 229 F.3d at 1006; see also U.S. v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992).
In their affidavits, both Detective Swanson and Special Agent Pezzutti state that the CS conveyed all of his/her relevant information to them. They stated that they had previously worked with this CS before and found him/her reliable in the past. (Aff. #1 at 3, Aff. #2 at 3) Further, surveillance and further investigation was conducted that corroborated the statements made to the officers. While this corroboration did not include witnessing a drug transaction or the presence of drugs prior to issuance of the first warrant, various aspects of the CS' statements were corroborated by statements of the CC (and vice-versa) and through independent investigation. This investigation verified that the vehicles were where the CS stated they could be found. The CC's observations regarding the same occupants of apartment #21 often entering #30 for a short period and traveling between the two apartments carrying large black bags support the CS' claim of a stash house and are indicative of the CS' credibility. Additionally, the CC confirmed statements made by the CS regarding the apartment and the short-stay traffic which is consistent with a drug operation as alleged by the CS. The court notes that statements by the CC were those of a concerned member of the community who voluntarily came forward with nothing to gain by providing this information.
2. Were the facts supporting the search warrant stale so as not to support a finding of probable cause?
Defendants contend that the information used to obtain the search warrants was so stale as to prevent its use in finding probable cause to support a search warrant. Defendants assert that so much time had elapsed between the officers obtaining information from CS on December 29, 2003, and the applications for warrants on January 9, 2004, and January 22, 2004, that one could not reasonable expect to find the items sought at the place to be searched. Defendants contend that this time lapse renders the finding of probable cause improper.
While it is true that probable cause to search cannot be based on stale information, the court disagrees with the Defendants' argument. The Tenth Circuit has instructed that:
in resolving the question of staleness, the nature of the alleged criminal activity and the property to be seized must be considered. "Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time." This is particularly true if the property to be seized can be easily transported or consumed. On the other hand, "where the affidavit properly recites facts indicating activity of a protracted and continuous nature . . . the passage of time becomes less significant," and the facts otherwise remote in time may retain their relevance.U.S. v. Schauble, 647 F.2d 113, 116 (10th Cir. 1981) (citingU.S. v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). See also U.S. v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986) ("where the affidavit recites facts indicating ongoing, continuous criminal activity, the passage of time becomes less critical"); Andresen v. Maryland, 427 U.S. 463, 478-79 (1976) (three-month lapse not unreasonable under the circumstances). "Timeliness is not determined by counting the number of days or months between the occurrence of the facts relied upon and the issuance of the warrant." U.S. v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986). In fact, information pertaining to ongoing drug activity has been found to counteract an otherwise improper time lapse. See U.S. v. Iiland, 254 F.3d 1264 (10th Cir. 2001).
In the present case, the affidavits make clear that the alleged criminal activity is not a one-time sale of drugs, but a continuous and ongoing enterprise. Information provided by CS indicated that "The Company" was making and accepting continuous shipments of illegal narcotics. Both the CS and CC provided information pertaining to the existence of a "stash house" and consistent short-stay traffic. The CS admitted to purchasing large quantities of methamphetamine over the course of the preceding six months. Information obtained about the Grand Marquis indicated that it had crossed into the United States from Mexico approximately one month prior to the application for the first warrant. Based on the above, it is clear that the time lapse between the gathering of information and the applications for the various warrants was not so long as to render the information stale and the determination of probable cause improper.
3. Was there a sufficient nexus between the area to be searched and the contraband sought?
Defendants claim that the affidavits in support of the various warrants do not demonstrate a nexus between the locations to be searched and the contraband sought. Defendants maintain that the information provided by Special Agent Pezzutti and Detective Swanson failed to establish with any probability that criminal activity was occurring in apartment #21, apartment #30, or in the Ford Expedition.
Probable cause requires a nexus between the suspected criminal activity and the place to be searched. Danhauer, 229 F.3d at 1006; see also U.S. v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990). Here, the affidavits must demonstrate a connection between the alleged ongoing narcotics distribution ring, the silver Ford Expedition, apartment #21, and apartment #30. It is not necessary for an affidavit to cite with certainty that particular evidence will be found in a particular location.Anthony v. U.S., 667 F.2d 870, 874 (10th Cir. 1981), cert. denied, 457 U.S. 1133 (1982) (citing Porter v. U.S., 335 F.2d 602 (9th Cir. 1964)). The nexus can be found through direct observation or through natural inferences. Id.
In the present case, the CS gave the address and the general location of apartment #21 ("The CS stated that the apartment is located inside the Gordan Lane Apartment complex in building #235 on the middle level." (Aff. #2 at 2)). The CS further stated that there was "another unknown apartment that is used as a `stash house.'" (Aff. #1 at 2, Aff. #3 at 2) The CS identified the vehicles associated with "The Company" and where they were parked. This was all later confirmed by law enforcement officers and the CC. The CC not only identified the various vehicles, including the Ford Expedition, but also that there was traffic between apartments #21 and #30. This traffic consisted of people carrying large black bags between the two apartments. The CC identified that the same people who entered apartment #21 often proceeded directly from their vehicles into apartment #30 for short periods of time before leaving again. (Aff. #1 at 3, Aff. #3 at 2) The CC also stated that there was "short stay" traffic at both apartments; information consistent with an inference of narcotics distribution. (Aff. #2 at 2).
The information provided in the affidavits creates a direct nexus between the suspected activity and the locations searched. The vehicle and the apartments were all specifically identified in the various affidavits and all linked directly to a possible ongoing narcotics distribution and trafficking ring. The court finds that there is sufficient nexus to support a finding of probable cause.
B. Does the Leon Good Faith Exception Apply?
The good faith exception to the warrant requirement, as articulated in United States v. Leon, 468 U.S. 897 (1984), requires that evidence not be suppressed when the officer conducting the search "act[s] in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." Leon, 468 U.S. at 900, 920-21. The Supreme Court has stated that "[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id. at 919.
In assessing the good faith exception, a court's inquiry "is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989) (quotingLeon, 468 U.S. at 923 n. 23). The court considers "all of the circumstances" when making this determination. Leon, 468 U.S. at 923 n. 23. The government "bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable." United States v. Cook, 854 F.2d 371, 373 (10th Cir. 1988) (quoting United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986)). Still, "[t]he first notion to be remembered in considering the good faith principle is the presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith." United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985).
The Supreme Court has identified four situations in which the good faith exception to the exclusionary rule does not apply.See id. at 922-23. The Tenth Circuit has articulated these four situations as follows:
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known to be false if not for his reckless disregard of the truth. . . . Second, the exception does not apply when the "issuing magistrate wholly abandon[s her] judicial role." . . . Third, the good-faith exception does not apply when the affidavit in support of the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." . . . Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (quoting Leon). In this case, Defendants contend that the good-faith does not apply because the warrants were plainly lacking probable cause, were overbroad, and included material and intentional omissions. Further, they alleged that the judges who signed the warrants wholly abandoned their judicial roles, and that the officers involved in the federal search executed the warrant in an objectively unreasonable manner.
As stated above, the court finds that there is sufficient probable cause to support the warrants at issue in the present case, but even if there were not, the court finds that the evidence would be admissible under the good faith exception to the warrant requirement. First, the court finds that the warrants were not so lacking in probable cause as to render their execution improper. Second, defendants have not put forth any evidence to demonstrate either that there were material and intentional omissions, that the issuing judges abandoned their roles, or that the conduct of the search was so unreasonable as to merit suppression of all fruits.
As the court finds that there was sufficient probable cause to support the warrants without the good faith requirement, the same reasoning applies to find that they are not so lacking in probable cause as to be unreasonable on their face.
ORDER
For the foregoing reasons, Defendants' Motion to Suppress evidence seized during the search of the Ford Expedition on January 9, 2004, and the searches of apartment #21 and apartment #30, on January 26, 2004, is DENIED.
IT IS SO ORDERED.