Opinion
2:20-cr-00001-KJM-1
11-01-2022
United States of America, Plaintiff, v. Julius Rucks, Defendant.
ORDER
Defendant Julius Rucks moves to suppress evidence the United States obtained in a search of his apartment following his arrest. Mr. Rucks and the United States disagree about whether he was arrested inside or outside of his residence, and so the court held an evidentiary hearing on that narrow issue. The court now finds the United States has not met its burden to show Mr. Rucks was arrested inside his apartment. The initial protective sweep of his apartment thus was an unreasonable search in violation of his Fourth Amendment rights. Because the subsequent search warrant was based on information obtained through the unlawful protective sweep, the evidence obtained during the subsequent search must be suppressed. The court grants Mr. Rucks's motion to suppress.
I. BACKGROUND
Although the parties dispute Mr. Rucks's arrest location, they agree on some preliminary facts leading to the arrest. The following background is not disputed.
In July 2019, then-Detective James Beller of the Butte County Sheriff's Office and Senior Special Agent Jim Holcomb of the United States Secret Service obtained a Ramey arrest warrantfor Julius Rucks. Narrative at 4, Mot., ECF No. 56-1. The warrant was based on surveillance of Mr. Rucks selling counterfeit U.S. currency. Id. A few days later, on July 23, Beller and Holcomb, along with other detectives and special agents, served the warrant. Id.
“Before the filing of criminal charges, the court may authorize a residential arrest by issuing a so-called Ramey warrant[.]” Goodwin v. Super. Ct., 90 Cal.App.4th 215, 218 (Cal.Ct.App. 2001) (citation omitted); see also People v. Ramey, 16 Cal.3d 263, 275 (1976) (“[I]n the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of an arrest warrant.”).
Pages cited in this document are those applied by the CM/ECF system.
Detectives Beller and Jason Miller of the Butte County Sheriff's Office knocked on Mr. Rucks's door and announced themselves as Sheriff's deputies. Id. Mr. Rucks asked who was outside. Id. They told him to open the door, and so he did, although the door only opened partway due to a chain lock. Id. Detective Miller identified the occupant as Mr. Rucks and ordered him to fully open the door. Id. Mr. Rucks shut the door and re-opened it approximately 10 seconds later. Id. What happened next is contested.
Mr. Rucks claims he stepped outside the apartment, closed the door behind him, was arrested outside, and then the officers conducted a protective sweep of the apartment. See Mot. at 3, ECF No. 56. In contrast, the United States contends Mr. Rucks stepped backward after opening the door, was arrested inside the apartment, and then the officers conducted a protective sweep. See Opp'n at 2, ECF No. 57.
During the protective sweep, the detectives saw ammunition and a piece of equipment -later identified as a pill press - in plain view, which formed the basis of a search warrant application. Narrative at 5; Search Warrant Aff. at 17, Mot., ECF No. 56-1. A state court judge signed the search warrant, and Beller served it. Narrative at 6; Search Warrant at 13. The subsequent search, executed by Beller and Drug Enforcement Administration (DEA) agents, revealed more contraband. Narrative at 6; DEA Rep. at 3, Opp'n, ECF No. 57-5.
Prior to his arrest, Mr. Rucks had been the subject of two separate investigations. As indicated above, Secret Service agents had been investigating Mr. Rucks for counterfeit U.S. currency transactions. Search Warrant Aff at 16. Unknown to the Secret Service, the DEA had been investigating Mr. Rucks simultaneously for distributing thousands of fentanyl pills. Id. at 17. The DEA learned about the arrest and protective sweep on July 23 when the Butte County Sheriff's Office contacted DEA agents to report the fentanyl pill press and request “their assistance.” Narrative at 5. After contacting the DEA, the Butte County detectives applied for the search warrant, see Search Warrant Aff. at 17, and then DEA agents participated in the subsequent search, so they could process the pill press and associated fentanyl paraphernalia, Narrative at 6; see generally DEA Rep.
Mr. Rucks is charged in this case with being an ex-felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1), fentanyl distribution in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute fentanyl. Compl. at 1, ECF No. 1; Superseding Indictment at 2-4, ECF No. 28; Mot. at 2. These charges are based in part on items found in a search of Mr. Rucks's apartment. Mot. at 2; Felony Rep. at 3, Mot., ECF No. 56-1; DEA Receipt at 23, Mot., ECF No. 56-1.
As noted, Mr. Rucks moves to suppress all evidence obtained during the search, arguing the officers violated his Fourth Amendment rights. Mot. at 2-3. He claims he was arrested outside his apartment, his door was closed, and the officers conducted an unconstitutional search by entering his apartment. Id. The United States opposes the motion. Opp'n. It argues Mr. Rucks's motion is meritless in part because he was arrested inside the apartment and therefore the search was a valid protective sweep. Id. at 4-7. The location of the arrest determines which standard applies to assess whether the protective sweep was constitutional. See Maryland v. Buie, 494 U.S. 325, 334 (1990); Mot. at 7-8. Therefore, Mr. Rucks requested an evidentiary hearing on the disputed arrest location. Reply, ECF No. 58.
The court held an evidentiary hearing on September 12, 2022, allowing the parties to elicit evidence regarding whether Mr. Rucks was arrested inside or outside his apartment. See generally Hr'g Mins., ECF No. 79. Cameron Desmond represented the United States; Tamara Soloman appeared for Mr. Rucks. Mr. Rucks was present and testified. The court first explains and makes its factual findings based on the evidentiary hearing.
II. EVIDENTIARY HEARING
The court held a narrow evidentiary hearing to determine whether Mr. Rucks was arrested inside or outside his apartment. It is the government's burden to show by a preponderance of the evidence that Mr. Rucks was arrested inside his home, if it is to prevail. See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (citing Lego v. Twomey, 404 U.S. 477 (1972)). At the conclusion of the hearing, the parties made closing arguments and then the court took the motion under submission.
Resolving the question before the court requires making an extremely close call. On the one hand, the government tells a facially credible story, supported by evidence. At the same time there are some gaps in its narrative. On the other hand, Mr. Rucks also tells a facially credible story, supported by evidence, with gaps as well. As explained below, the court ultimately finds the two versions of the arrest equally credible, meaning the evidence is in equipoise and the government has not met its burden. Cf. Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997) (“Well-settled principles guide the fact-finding process, including the rule that when the scales are evenly balanced and the relevant evidence leaves a trier of fact in ‘equipoise,' the party with the burden of proof loses.”); Medina v. California, 505 U.S. 437, 449 (1992).
A. The United States' Narrative
The United States claims Mr. Rucks was arrested inside his apartment. Opp'n at 2. Evidence in the record supports this claim.
First, the government's witnesses told a consistent story. Each testified Mr. Rucks was arrested inside his apartment. Detective Miller testified that, after Mr. Rucks opened the door the second time, “Detective Beller stepped in and grabbed him and moved him into the living room area so we could go past him to clear the residence.” Hr'g Tr. at 14:1-3, ECF No. 81. Miller testified more pointedly that Mr. Rucks could not have stepped outside because “Sergeant Beller went in and grabbed him” as soon as Mr. Rucks opened the door. Id. at 9:8-9. Sergeant Beller confirmed he “went right in and took him into custody,” denying that Mr. Rucks was allowed to take a step forward to go outside. Id. at 23:18, 23:23-4. Sergeant Tiffany Larson of the Butte County Sheriff's Office testified she does not “remember [Mr. Rucks] coming out the door prior to us entering.” Id. at 37:8-9.
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Second, the police report and officers' declarations tell a similar story. Beller and Miller's declarations aver the officers pushed “into the apartment as the defendant stepped backward farther into the apartment.” Beller Decl. ¶ 4, Opp'n, ECF No. 57-1; see Miller Decl. ¶ 3, Opp'n, ECF No. 57-2. Beller included nearly identical language in his police report. See Narrative at 4 (“. . . Rucks opened the door and stepped backward farther into the apartment. At that time, I placed Rucks in handcuffs.”). The only contemporaneous evidence, namely Beller's police report, therefore supports the government's story.
Third, a few undisputed details suggest Mr. Rucks might not have chosen to exit his apartment before the arrest. The officers were executing an arrest warrant, and announced as much; Mr. Rucks would have understood they were there to gain control of him immediately. Hr'g Tr. at 28:16 (Beller's goal was to “keep [his] hands on [Mr. Rucks]”). When Mr. Rucks opened the door, he testified, he “saw a bunch of guns.” Id. at 45:6-7. A person confronted by officers with guns might well hesitate to step toward them, especially onto a relatively narrow, “three-foot walkway” outside an apartment. Id. at 21:22. These considerations lend weight to the government's position that Mr. Rucks opened the door and stepped backward while all three officers rushed into the apartment.
At the same time, the court notes that Secret Service agents were at Mr. Rucks's apartment when he was arrested; they did not testify to confirm local law enforcement's explanations of what happened. See id. at 6:20-23, 12:5-8; cf. United States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (“ . . . [T]he government's failure to produce relevant evidence within its control [can] give[] rise to an inference that the evidence would be unfavorable to it.”); United States v. Leal-Del Carmen, 697 F.3d 964, 974 (9th Cir. 2012) (explaining the “two requirements for a missing-witness instruction”). Documentation of the actual scene of the arrest was sparse: a single photograph of Mr. Rucks's front door ajar, taken at an unspecified time. Id. at 8:14-18; Gov't Ex. B. There are no videos, body camera images or other pictures of the arrest or the moments before or after. Although the Sheriff's department had not issued body cameras to the investigations unit at that time, see Hr'g Tr. at 18:13-24, photography presumably was available as a tool.
Second, some inconsistencies in the officers' testimony suggest their memories about the minutiae of the arrest, occurring more than three years prior to the hearing, were imperfect. Miller testified Beller knocked on the door, see id. at 6:25, but Beller said Miller knocked, see Id. at 22:12, 26:22. Additionally, Beller wrote in his police report that Miller told him about the ammunition immediately after the protective sweep, and he wrote that Miller told him about the pill press by phone when Beller was back at the office working on the warrant application. Narrative at 5. However, Miller testified he told Beller about the pill press while Beller was still at the apartment. Hr'g Tr. at 18:7-8. If Miller told Beller about seeing ammunition immediately and did not tell him about the pill press until Beller was back at the office, then that delay might support an inference that Miller did not see the pill press during the protective sweep. Such an inference might also be supported by Sergeant Larson's testimony, given that he did not appear to know what the pill press was initially. See id. at 38:19-21 (“During the protective sweep, I made entry into the second room and stepped over what we learned to be a pill press . . . .”). Without making credibility determinations about the officers' testimony, the court notes these factual discrepancies are unexplained by the totality of the record.
Third, as noted above, the DEA had been investigating Mr. Rucks for distributing thousands of fentanyl pills. See id. at 68:19-69:3; Search Warrant Aff. at 17. In contrast, the Secret Service investigation concerned just two counterfeit U.S. currency transactions, see Narrative at 4, and nothing in the record suggests law enforcement's suspicion that firearms or other weapons were being used in the conduct of those transactions. The government called DEA Special Agent Brian Nehring to make the point the DEA had not known about the Secret Service investigation, nor about the plan to apply for an arrest warrant until the Butte County detectives contacted him to inform the DEA they had found a fentanyl pill press on July 23. Hr'g Tr. At 69:20, 70:5-19. Agent Nehring was frustrated upon learning of the Butte County arrest warrant, because it got ahead of his plan to seek a search and arrest warrant in due time. Id. at 69:10-17. Any problems with the Butte County arrest could jeopardize the DEA investigation; by the time he was finalizing his search warrant application, Beller knew about the DEA investigation. See Search Warrant Aff at 17. Without making credibility determinations here either, the court notes the context in which the search warrant was obtained and executed.
If the record as reviewed above were all the court had to review, it would find the government had met its burden, at least minimally. But the court also must take account of the record created by Mr. Rucks.
B. Mr. Rucks's Narrative
Mr. Rucks claims he was arrested outside his apartment. Mot. at 3. The record provides support for his position as well.
First, Mr. Rucks's own testimony explaining he was arrested outside the front door of his apartment was consistent; his demeanor was calm and forthright. He remembered more details than the detectives, such as what the officers said when they knocked and announced, see Hr'g Tr. at 45:3-4, admitting no discrepancies despite rigorous cross-examination, see, e.g., id. at 61:4-62:5. He explained why the government's position that he had to have stepped backward to open his front door was erroneous: he was adamant he was able to open the door just the width of his body and step out by standing to the side, which he would know because it is his door. See Id. at 61:17-22. He repeatedly responded he “did not know” if he could not remember answers to certain questions. For example, he did not recall exactly how long it took him to grab his belongings, see id. at 46:21-24, and whether he locked the door behind him as he exited, see id. at 48:23-49:1.
Second, Mr. Rucks's testimony regarding his reactions to his circumstances at the time of the arrest provides a coherent description. As noted, he testified he initially opened the door partway, saw officers outside with “a bunch of guns,” and then promptly closed the door. Hr'g Tr. at 45:6-20. He had heard the order to “come outside,” so he put on his shoes, grabbed his keys and wallet, and headed to the door. Id. at 46:3-16. This testimony is not inconsistent with Beller's testimony that Mr. Rucks took “10 seconds” between closing and then re-opening the door. Id. at 23:10. Before Mr. Rucks went outside, he said he intended to lock the door to prevent the officers from entering, because he believed they needed “a search warrant to go inside any lockboxes, locked doors, locked rooms.” Id. at 48:21-49:7. He admitted he does not recall whether he actually locked the door. Id. at 48:25. He was adamant, however, that he never stepped backward into the apartment and was rather arrested outside. Id. at 52:24, 53:3-4.
Mr. Rucks's explanation itself, that by his actions he was seeking to block a search of his apartment, is not self-serving and suggests he was telling the truth even if unfavorable. Having so testified, he knowingly submitted to cross-examination, even if his testimony is not available for the purpose of attempting to prove his guilt at trial. Id. at 60:18-62:5, 62:22-64:12; United States v. Salvucci, 448 U.S. 83, 88 (1980) (“[T]estimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial.”). His testimony that he quickly decided to put on his shoes and grab his wallet and keys was unrebutted and supports the idea he was preparing to walk outside. Id. at 45:21-46:24.
Third, Mr. Rucks's position regarding the location of his arrest is tied to the events of that day and does not appear to be a post hoc invention to escape prosecution. When the government pressed Mr. Rucks on why he chose to testify, he said he took the stand because “they lied on their police report,” id. at 66:2, and “they broke the law or violated [his] rights,” id. at 65:19-20. When the government asked Mr. Rucks how his testimony would result in suppressing evidence, he responded that he is not an attorney, prosecutor, or judge and does not know how the parties' factual dispute translates into the law. Id. at 66:8-10.
While the record contains some evidence that could lead the court to question Mr. Rucks's version of the relevant events, the evidence is not strong and ultimately is not fatal to Mr. Rucks's position. While he previously has been convicted of at least one felony, id. at 57:10-18, at hearing the government did not introduce details about that prior conviction offense or Mr. Rucks's criminal history otherwise. Additionally, Mr. Rucks's concession at hearing that he is motivated to testify in a way to help his case is a factor the court considers, but his freely acknowledging as much without evasiveness or signs of defensiveness is offsetting. See id. at 65:22.
In sum, Mr. Rucks's narrative is plausible in a way that focuses the dispute for the court to resolve.
C. Factual Findings
Having carefully considered the totality of the record before it, the court finds that neither the government nor Mr. Rucks showed its version of the story more probably than not matches what occurred at the time of Mr. Rucks's arrest. Each side relied on its own witnesses' version of events and lacked third party corroboration. The government put forward the testimony of three county detectives. The government argued in closing it met its burden because of “the consistency of the officers[']” testimony. Hr'g Tr. at 75:21-22. But as reviewed above, the court finds the detectives' testimony does not cancel out Mr. Rucks's own consistent testimony. Cf. Raybon v. Hardy, No. 12-1008, 2016 WL 915824, at *7 (E.D. Cal. Mar. 10, 2016) (“The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.”). If fact finding were merely a numbers game, then the government could always meet its burden by offering as witnesses more arresting officers than suspects.
The governments' supporting documents do not tip the scale either. While generally consistent with the officers' testimony, they also do not fatally undermine Mr. Rucks's version of events.
Both sides appealed to common sense. In closing, the government argued there was no space on the walkway for Mr. Rucks to step outside, and in any event the officers would not have allowed him to step toward them due to officer safety concerns. Hr'g Tr. at 74:16-75:6. It claimed Mr. Rucks could not have opened the door without stepping backward. Id. at 74:19-20 (“When a door opens inward, you have to step backwards to open that door.”). But, as Mr. Rucks testified, he opened the door “as wide as [his] body[,]” id. at 47:4, and standing to “the left of the door . . . [could] just walk right out[,]” id. at 61:19-21. The government's hand-drawn diagram of Mr. Rucks's apartment does not suggest it is impossible or even unlikely that Mr. Rucks stood as he said he did, see Ex. D at 2, Opp'n, ECF No. 57-4, nor does the sole photograph admitted into evidence at the hearing, see Gov't Ex. B. Mr. Rucks contends common sense dictated the officers “would ask him to come outside and arrest him outside where there were multiple law enforcement [sic] ready to take action, not go inside where . . . there could have been some hidden danger.” Id. at 78:19-23. Moreover, Mr. Rucks's explanation of his strong motive to lock the door to his apartment behind him was consistent and not unbelievable. See id. at 46:3-5, 48:24-49:7. In sum, neither party's narrative clearly outweighs the other. No witness is obviously untrustworthy, and neither side's evidence disproves the other side's evidence.
Faced with two plausible stories, the court has considered whether the truth lies somewhere in between. The government says Mr. Rucks opened the door partway, closed it for approximately ten seconds, re-opened the door, stepped backward into the apartment, and the police rushed in. In contrast, Mr. Rucks claims he opened the door partway, closed it for a brief moment while he retrieved his shoes, keys and wallet, then stood to the side of the door, reopened it only as wide as his body, stepped outside, and closed the door behind him. Perhaps, then, once he was ready, Mr. Rucks did try to slip out the door and close it behind him, and simultaneously, the police rushed in to arrest him. In that scenario, Mr. Rucks would have been arrested in the doorway itself, neither outside nor inside. The excitement of the situation, combined with the officers' and Mr. Rucks's differing perspectives, might explain the opposing stories. But a single phrase in one witness's testimony is the only evidence supporting this version. Although Sergeant Miller testified “Sergeant Beller then went in and grabbed him in the door ” and “pushed into the living room with Mr. Rucks,” which implies an arrest in the doorway, this solitary statement does not otherwise tip the scales one direction or the other. Hr'g Tr. at 7:21-8:1 (emphasis added). Moreover, Sergeant Miller clarified on cross-examination, he meant to say: “Detective Beller stepped in and grabbed him and moved him into the living room area so we could go past him to clear the residence.” Id. at 14:1-3. The record does not support finding an arrest in the doorway.
The court thus concludes this case presents the “rare[]” situation in which the evidence is in equipoise, with the allocation of the appropriate burden determining the result. Goldman Sachs Grp., Inc. v. Arkansas Teacher Retirement Sys., 141 S.Ct. 1951, 1963 (2021) (explaining district court's “task” is to review all evidence and determine “whether [one narrative] is more likely than not”; allocation of burden only has “bite . . . when the court finds the evidence in equipoise”). Here, the government had the burden to show it was more likely than not Mr. Rucks was arrested inside his apartment. See Matlock, 415 U.S. at 177 n.14. It has not met that burden. For purposes of resolving the motion to suppress then, the court assumes Mr. Rucks was arrested outside his home.
III. LEGAL STANDARD FOR SUPPRESSION
“The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” United States v. Calandra, 414 U.S. 338, 347 (1974) (quoting U.S. Const. amend. IV). The Fourth Amendment applies to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650, 657-58 (1961).
Under the exclusionary rule, a criminal defendant may move to suppress evidence obtained in violation of the Fourth Amendment. See Calandra, 414 U.S. at 341, 347; Fed. R. Crim. P. 41(h). This prohibition applies “both to direct products of an illegal search-i.e., the physical evidence found during the search itself-and to indirect products of the illegal search- i.e., statements or physical evidence subsequently obtained in part as a result of the search-if they bear a sufficiently close relationship to the underlying illegality.” United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011) (citation and internal quotation marks omitted). Not every Fourth Amendment violation requires the remedy of suppression. See Davis v. United States, 564 U.S. 229, 232, 242-44 (2011). When deciding a motion to suppress, courts first determine whether a Fourth Amendment violation occurred, and then consider whether suppression is appropriate. Id.
A warrantless search is “per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” United States v. Scott, 705 F.3d 410, 416 (9th Cir. 2012) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). “[T]he government bears the burden of showing that a warrantless search or seizure falls within an exception to the Fourth Amendment's warrant requirement.” United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012) (citation omitted); see also Matlock, 415 U.S. at 177 n.14 (noting “controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence”) (citation omitted). “When the government fails to carry its burden, all fruits of the Fourth Amendment violation must be suppressed.” United States v. Cole, 445 F.Supp.3d 484, 488 (N.D. Cal. 2020) (citing Cervantes, 703 F.3d at 1142 n.1, 1143).
IV. MOTION TO SUPPRESS ANALYZED
When a defendant moves to suppress, as in this case, the government bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the delineated exceptions to the warrant requirement. See United States v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir. 1992). Here, there were two searches: the initial warrantless sweep of the apartment and the search following execution of the search warrant. The government argues the first search falls under the protective sweep exception, and the second search was either executed under a valid warrant or falls under the inevitable discovery exception or the good-faith exception. See Opp'n at 2-3; Hr'g Tr. at 75:21-76:14. The court takes these arguments in turn.
A. Protective Sweep
A protective sweep of a residence is an exception to the warrant requirement. When the sweep is incident to an arrest, officers can, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie, 494 U.S. at 334. To search beyond that “immediate space,” “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.
Following Buie, the Ninth Circuit held that officers may constitutionally conduct a “protective sweep of the interior of a house when the defendant had been arrested just outside the door to the house.” United States v. Paopao, 469 F.3d 760, 765 (9th Cir. 2006); see United States v. Hoyos, 892 F.2d 1387, 1398 (9th Cir. 1989), overruled on other grounds, United States v. Ruiz, 257 F.3d 1030, 1032 (9th Cir. 2001) (en banc). The Circuit cabined acceptable interior protective sweeps following outside arrests to Buie's beyond-the-immediate-space category and thus required reasonable suspicion. Specifically, “[w]hen officers lawfully arrest a person outside his home, they may search the interior of the home so long as they have a ‘reasonable suspicion of danger.'” United States v. Mackey, 431 Fed.Appx. 594, 595 (9th Cir. 2011) (unpublished) (quoting Paopao, 469 F.3d at 766) (upholding finding of reasonable suspicion in part because officers stood on porch next to two large windows and were vulnerable to attack from within home).
Here, the court assumes Mr. Rucks was arrested outside his home and the officers then conducted a protective sweep. Anticipating this possible scenario, the government argues the officers reasonably believed someone else was in the apartment and posed a danger to them. Opp'n at 7. The government draws that conclusion from Mr. Rucks's nervous and sweaty appearance, his suspicious refusal to immediately open the door all the way, and his delay after closing the door before opening it again. Id.; Beller Decl. ¶ 4 (“Rucks appeared very nervous and was sweating profusely when he first opened the door . . . .”); Hr'g Tr. at 7:7-11 (Miller describing his concern about Mr. Rucks's opening and closing of the door); Miller Decl. ¶ 4 (same); Hr'g Tr. at 23:13-16 (Beller describing similar concerns). But these facts are insufficient to support a finding of reasonable suspicion. The officers had surveilled the apartment that morning and seen no signs of another person. Hr'g Tr. at 10:6-11:9, 25:9-25. They had not sought information, like a lease agreement, to determine if a second person lived at the apartment. Id. at 11:10-16. Nothing in the record indicates they had seen something through the windows while outside his apartment. The arrest warrant was based on Mr. Rucks's alleged selling counterfeit U.S. currency with no suggestion he posed any risk of violence or possessed firearms. See Search Warrant Aff. at 17 (“[Beller] authored a ‘Ramey' arrest warrant for Julius Rucks regarding his felony violation of 475(a) PC.”). While the government suggests it could present additional evidence at a further hearing, it has not proffered what that might be.
This case thus differs from United States v. Alatorre, which the government cites. Opp'n at 7 (citing 863 F.3d 810, 814-15 (8th Cir. 2017)). In Alatorre, (1) a third person was in the residence until called to the door, (2) the arrest concerned an alleged violent attack, leading the officers to be concerned about concealed weapons in the house that could be used for an ambush, and (3) the sounds heard from outside of multiple people “created a reasonable uncertainty as to how many people were inside the residence.” Alatorre, 863 F.3d at 814-15.
Moreover, the cases cited in Alatorre involve more indicators of danger than what the officers confronted at Mr. Rucks's front door. See, e.g., United States v. Davis, 471 F.3d 938, 945 (8th Cir. 2006) (citing multiple cars and trailer parked on property and intelligence that other persons came to property to manufacture methamphetamine). The court is aware of no other case in which a protective sweep of a residence was found to be constitutional when the defendant was arrested outside and the sole facts supporting a protective search consisted of defendant's demeanor and rate of perspiration. Indeed, if officers could always perform a protective sweep of a home when arresting a nervous suspect outside, then the reasonable-suspicion standard would appear to mean very little.
Because the government has not put forward articulable facts to support the officers' perceiving a reasonable suspicion of danger from inside the apartment, the protective sweep was an unreasonable search. No other warrant exception applies to the sweep. This search was therefore unconstitutional.
B. The Search Warrant
“[T]he exclusionary rule encompasses both the primary evidence obtained as a direct result of an illegal search or seizure and, relevant here, evidence later discovered and found to be derivative of an illegality, the so-called fruit of the poisonous tree.” Utah v. Strieff, 579 U.S. 232, 237 (2016) (quotation marks and citation omitted). A search warrant is the derivative of an illegal search when “the agents' decision to seek the warrant was prompted by what they had seen during the initial entry[.]” Murray v. United States, 487 U.S. 533, 542 (1988). “The exclusionary rule requires a causal connection between the illegal conduct and the evidence sought to be suppressed.” United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004). In other words, “[w]hat counts is whether the actual illegal search had any effect in producing the warrant[.]” Murray, 487 U.S. at 542 n.3.
Due to “the significant costs” of suppression, there are three exceptions that test whether the unconstitutional search helped produce the warrant. Strieff, 579 U.S. at 237. First, the independent source doctrine allows admission of illegal evidence if it was independently acquired from a source separate from an impermissible search. Murray, 487 U.S. at 537. Second, the inevitable discovery doctrine allows admission of illegal evidence if it would have been discovered notwithstanding the constitutional violation. Nix v. Williams, 467 U.S. 431, 442-44 (1983). Third, evidence is admissible under the attenuation doctrine if “the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance[.]” Strieff, 579 U.S. at 238. Even if the search warrant is invalid, the fruit of the subsequent search could nevertheless be admitted so long as the officers objectively relied on the warrant in good faith. United States v. Leon, 468 U.S. 897, 922-24 (1984).
Here, the threshold question is whether the search warrant itself is fruit of the poisonous tree, i.e., whether it is tainted by the illegal initial search. After the protective sweep, Beller returned to the office with Mr. Rucks in custody and obtained a search warrant. Narrative at 6. The probable cause statement for the search warrant relied on finding “ammunition boxes” and “a pill press . . . with a container of a white power substance” during the protective sweep. Search Warrant Aff. at 17. It also noted Mr. Rucks's admission that the substance used for the pill press was heroin. Id. Beller's declaration expressly states the information found during the protective sweep “formed the basis of the search warrant.” Beller Decl. ¶ 8; see also Search Warrant Aff. at 17. No evidence in the record indicates that, absent the illegal protective sweep, the Butte County detectives and Secret Service agents would have sought a search warrant for Mr. Rucks's apartment. As a result, the search warrant is fruit of the poisonous tree, unless an exception applies.
The government argues two of the exceptions identified above apply: the inevitable discovery doctrine and good-faith exception. First, the government claims the seized evidence would inevitably have been discovered. Opp'n at 8-9. Second, the government contends the officers executed the search warrant in good faith reliance on an objectively reasonable warrant. Id. at 9-10. Mr. Rucks has not responded to these arguments. The court begins with the inevitable discovery doctrine.
1. Inevitable Discovery
“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received.” Nix, 467 U.S. at 444. In other words, if “by following routine procedures, the police would inevitably have uncovered the evidence[,]” then the evidence should not be suppressed. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989). This exception ensures the police are put “in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443.
The government urges the court not to exclude the disputed evidence because law enforcement would inevitably have discovered that evidence. It offers two reasons. First, the government claims law enforcement “had probable cause to search the residence based on Rucks [sic] prior drug trafficking.” Opp'n at 9. This argument is unavailing because law enforcement did not seek a search warrant on that basis. The Ninth Circuit “has never applied the inevitable discovery exception so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant.” United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995). The inevitable discovery exception does not apply “based on the agents' actual but unexercised opportunity to secure a search warrant.” United States v. Reilly, 224 F.3d 986, 995 (9th Cir. 2000). As the Circuit explained in Mejia, “apply[ing] the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.” 69 F.3d at 320. Here, if the police had information about prior drug trafficking and chose not to include it in the search warrant application, then that information brought forth after the fact does not cure the Fourth Amendment violation.
Mejia and the present case do differ in one regard: the officers here did obtain a search warrant. But that is a difference without distinction. The same motivations justify the rule's application in both cases. In Mejia, the Circuit rejected the government's argument for inevitable discovery because if evidence were admitted despite an “unexcused failure to obtain a warrant,” then the officers have no reason obtain a warrant. Id. Here, if the police have information, but can choose not to include it because the evidence will be admitted anyway, then the officers have no reason to include the information in the warrant application despite its importance.
Second, the government argues the DEA's investigation would have resulted in a search warrant, and as a result, executing that warrant would have inevitably revealed “the evidence at issue here.” Opp'n at 9. This argument has several flaws. As noted above, inevitable discovery does not apply when the officers had probable cause but chose not to apply for a search warrant with that information. Here, the police officers had conferred with the DEA after their protective sweep and before submitting their search warrant application, but they chose to include very limited information from the DEA investigation in the probable cause statement authored by Beller. Rather, that probable cause statement states Mr. Rucks “had sold thousands of pills containing fentanyl,” based on a series of third-hand communications. Search Warrant Aff. at 17 (“Sgt. Burnett advised me a DEA Agent told him . . . .). Beller chose not to speak with the DEA, nor to include further information from the DEA. In this respect as well, if evidence were admitted under the inevitable discovery doctrine due to available information on controlled substances the officers chose not to disclose, then the police would have no reason to include that information in their search warrant application. Cf. Mejia, 69 F.3d at 320. In addition, had the police included the DEA's information in their search warrant application, then that separate investigation might have attenuated the Fourth Amendment violation. See Strieff, 579 U.S. at 238-41. But they did not. The information not included thus does not excuse the Fourth Amendment violation.
Moreover, for inevitable discovery to apply, the government must show the evidence would have remained in the same location until the subsequent discovery. See United States v. Young, 573 F.3d 711, 722 (9th Cir. 2009); United States v. Lundin, 47 F.Supp.3d 1003, 102122 (N.D. Cal. 2014), aff'd, 817 F.3d 1151 (9th Cir. 2016). Here, there has been no such showing. Agent Nehring testified he had planned to get a search warrant and arrest warrant within a “few months.” Hr'g Tr. at 69:15. Although Mr. Rucks said he did not plan to move in the next six months, see id. at 53:21-25, there is no evidence indicating the ammunition, guns, drugs, or pill press would have remained in his apartment for that time. Mr. Rucks could have chosen to move these items, as they were within his “control and easily movable.” Lundin, 47 F.Supp.3d at 1021. Alternatively, if the unlawful protective sweep had not occurred, then following Mr. Rucks's arrest, someone else might have removed the items from the apartment. See id. at 1021-22 (“Even had the arrest been legal, the government has not demonstrated that there is no chance other people could have entered the home and moved the guns prior to any later legal search.”). Because the government has not shown the evidence would have remained in the apartment until the DEA obtained and executed a search warrant, the discovery of the evidence was not inevitable.
2. Good Faith
When an officer acts in “objectively reasonable reliance on a subsequently invalidated search warrant,” the exclusionary rule does not apply. Leon, 468 U.S. at 922. “The burden of demonstrating good faith rests with the government.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (citation omitted). Courts recognize several situations in which the good-faith exception does not apply. United States v. Luong, 470 F.3d 898, 902 (9th Cir. 2006) (listing and describing four such situations).
In the Ninth Circuit, when an officer conducts an “illegal warrantless search and includ[es] evidence found in this search in an affidavit in support of a warrant,” then the magistrate judge's consideration of that evidence “does not sanitize the taint[.]” United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987). The good-faith exception is inapplicable because the constitutional error was the officer's, not the magistrate judge's. Id.; see also Murray, 487 U.S. at 536, 542-43. In such a case, the evidence “must be suppressed as the fruit of the illegal search[.]” United States v. Artis, 919 F.3d 1123, 1134 (9th Cir. 2019).
Here, the government claims the good-faith exception applies because the Butte County officers and DEA agents executing the search warrant relied on a warrant that contained at least a colorable basis for probable cause. Opp'n at 10. The government does not cite the applicable caselaw, which the court must consider. See Vasey, 834 F.2d at 789. Nor does it grapple with whether the search warrant is predicated on illegal evidence, how any taint affects the analysis, or the significance of Butte County officers' executing the search warrant in conjunction with DEA agents. Instead, the government argues simply the exclusionary rule's deterrent function has little use here because the DEA agents relied in good faith on the search warrant. Opp'n at 10.
The government cannot prevail on this argument. Beller executed the search warrant, in conjunction with the DEA. See DEA Rep. at 3 (“Det. Beller displayed a copy of the search warrant and requested that agents make entry.”); Narrative at 6. In other words, the lead officer who engaged in the illegal protective sweep and authored the probable cause statement also was involved in executing the search warrant. The officer's conduct “directly led to the violation of the defendant's constitutional right.” United States v. Odom, 588 F.Supp.3d 1032, 1049 (N.D. Cal. 2022). As a result, the exclusionary rule's deterrent function is at its apex: “to deter wrongful police conduct.” Herring v. United States, 555 U.S. 135, 137 (2009).
In sum, the search warrant application and the warrant itself was based on evidence obtained in violation of the Fourth Amendment. “The evidence seized pursuant to the [search] warrant must be suppressed as the fruit of the illegal search of [Mr. Rucks's] apartment.” Artis, 919 F.3d at 1134.
V. CONCLUSION
As explained above, the court assumes Mr. Rucks was arrested outside his residence. The evidence found during the protective sweep and the execution of the search warrant were collected in violation of his Fourth Amendment rights. The court grants the motion to suppress.
A Status Conference is set for November 14, 2022 at 9:00 AM in Courtroom 3.
This order resolves ECF No. 56.
IT IS SO ORDERED.