Opinion
No. 04-40001-01-SAC.
August 19, 2004
MEMORANDUM AND ORDER
This case comes before the court on three motions filed by defendant: motion to suppress (Dk. 26); motion for information regarding confidential informants (Dk. 28); and motion for a bill of particulars (Dk. 76). A hearing was held on these motions on August 18, 2004. Having heard the arguments of counsel and reviewed their motions, memoranda, and attachments thereto, the court is ready to rule.
MOTION FOR INFORMATION
Defendant moves the court to order the government to disclose the name, address, and occupation of the cooperating witness and to disclose all procedures, considerations, and benefits given to the cooperating witness, as well as his/her criminal record and prior testimony.
At the hearing, the government showed the court the voluminous information it has already provided to defendant. The government assured the court that it has provided to defendant all information in its possession, and referred the court to specific Bates numbered-pages which contain some of the requested information. The government noted the fact that trial is rapidly approaching, and agreed to provide as soon as possible any additional requested information which comes into its possession after debriefing of co-defendants.
The court holds the government to its representations, requires it to produce all impeachment and other Roviaro and Giglio information to defendant as soon as possible, and denies this motion as moot.
MOTION FOR BILL OF PARTICULARS
In this motion, defendant alleges that he is unable to prepare a defense and avoid unfair surprise at trial because of the nature of the First Superceding Indictment. The First Superceding Indictment charges defendant with four counts, substantially as follows:
Count 1 — that from a date unknown, but beginning before July 16, 2003, and continuing until on or about January 8, 2004, in the District of Kansas, defendant and Felipe Bedolla-Izazaga, Eloy Salinas-Rosas and Juan Carlos Verducco-Camarena conspired with each other and with persons whose identities are both known and unknown to distribute in excess of 500 grams of a mixture or substance containing a detectable amount of methamphetamine;
Count 16 — On or about January 7, 2004, in the District of Kansas, defendant knowingly and intentionally used a telephone in committing, causing and facilitating the offense set forth in Count I;
Count 17 — On or about January 8, 2004, in the District of Kansas, defendant and Felipe Bedolla-Izazaga knowingly and intentionally possessed with intent to distribute approximately 1.5 kilograms of a mixture or substance containing a detectable amount of methamphetamine; and
Count 18 — On or about January 8, 2004, in the District of Kansas, defendant and Felipe Bedolla-Izazaga managed or controlled the residence at 10782 Kettle Way in Dodge City, Kansas, and knowingly and intentionally made that building available for the purpose of using, storing and distributing a controlled substance. Dk. 34.
Defendant's motion for a bill of particulars sets forth ten questions for the government to answer, some with multiple subparts, asking for times, dates, places, names of persons, circumstances and other specific evidentiary detail relating to the charges. For example, defendant's motion asks the government, in Question three:
Describe such telephone call, meeting, conference or other communication that the prosecution alleges the accused, Mariano Bedolla, had with Defendants, Felipe Belolla Izazaga, Eloy Salinas-Rosas and Juan Carlos Verducco-Camarena, setting forth as to each:
• the date thereof;
• the parties thereto;
• the substance and purpose of the communication; and
• the location of each of the parties to the communication at the time thereof.
Dk.76
General law
An indictment is held only to minimal constitutional standards, and its sufficiency is judged "by practical rather than technical considerations." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). "An indictment is sufficient 'if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense.'" United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir. 1989), cert. denied, 493 U.S. 1020 (1990)).
The district court has broad discretion in deciding a motion for bill of particulars. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir. 1992). "The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense." United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.) (quotation omitted), cert. denied, 519 U.S. 901 (1996). It serves to minimize the defendant's surprise to the substantive facts of the charges, not the evidentiary basis of the charge. See United States v. Hopkins, 716 F.2d 739, 745 (10th Cir. 1982). "Unless the request for the bill of particulars shows, on its face, that failure to grant the request would result in prejudicial surprise, the preclusion of an opportunity for meaningful defense preparation, [or double jeopardy problems,] defendant has the burden of showing [by brief, affidavit or otherwise] that his or her request meets one of the three criteria." United States v. Anderson, 31 F. Supp. 2d 933, 938 (D. Kan. 1998) (citing United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987) (citing in turn United States v. Thevis, 474 F. Supp. 117, 123-24 (N.D. Ga. 1979), aff'd, 665 F.2d 616 (5th Cir.), cert. denied, 456 U.S. 1008 (1982))), reconsideration granted in part on other grounds, 36 F. Supp. 2d 1264 (D.Kan. 1998).
Analysis
Defendant's motion is styled more like a civil interrogatory than a bill of particulars. "[A] bill of particulars is not intended to serve as a discovery device or to compel the government's disclosure of the factual proof planned for trial." United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988). As this court has previously stated:
A defendant is not entitled to notice of "all the evidence the government intends to produce, but only the theory of the government's case." United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992). Nor is it a way to require the government's explanation of the legal theories expected at trial. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983). Evidentiary detail is not a proper request for a bill of particulars. United States v. Barbieri, 614 F.2d 715, 719 (10th Cir. 1980).United States v. Logan, 241 F. Supp. 2d 1164, 1172-1173 (D. Kan. 2002).
The counts charged put the defendant of fair notice of the charges against him. Defendant has failed to meet his burden to show that failure to grant his request for a bill of particulars would result in prejudicial surprise, the preclusion of an opportunity for meaningful defense preparation, or double jeopardy problems. This motion shall be denied.
MOTION TO SUPPRESS
Defendant challenges the search pursuant to warrant of his residence at 10782 Kettle Way, in Dodge City, Kansas on January 8, 2004. In short, defendant challenges the probable cause in support of the search warrant, alleging that the affidavit in support of the warrant was based upon hearsay, used stale information, included deliberately false information, and lacked a sufficient showing of nexus between the objects to be seized and the place to be searched for them. Defendant additionally contends that items not listed in the search warrant were in fact seized by officers during the search. The government admits that defendant has standing to raise these issues.
General Law
Probable cause
The reviewing court gives "great deference" to the issuing judge's determination of probable cause, for it is a determination based on common sense. United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997). The issuing judge must make a practical, common-sense determination from the totality of the circumstances presented whether 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 issuing judge is expected to draw reasonable inferences from the affidavits. See United States v. Edmonson, 962 F.2d 1535, 1540 (10th Cir. 1992).
The reviewing court will uphold that determination if the supporting affidavits provide a substantial basis for finding that probable cause existed. Gates, 462 U.S. at 236, 103 S. Ct. 2317; Finnigin, 113 F.3d at 1185. "In applying the test enunciated in Gates, this Court has stated that the 'affidavit' should be considered in a common sense, nontechnical manner . . ." Edmonson, 962 F.2d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir. 1982) (citation omitted)).
In determining whether probable cause exists, the court finds an evidentiary hearing is unnecessary, as the sole issue is a facial challenge to the search warrant. See generally Franks v. Delaware, 438 U.S. 154, 158, 98 S. Ct. 2674, 2677, 57 L. Ed. 2d 667 (1978) (adopting "four corners doctrine" limiting challenges to the validity of search warrants to review of the information submitted to the magistrate); Kaiser v. Lief, 874 F.2d 732, 734 (10th Cir. 1989) (citing cases); United States v. Pearce, 41 F.3d 1516, 1994 WL 630615, *2 (10th Cir. 1994) (affirming district court's decision on motion to suppress where it heard no evidence but based its decision on the "four corners" of the affidavit.) (Table).
"[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. Probable cause is more than a mere suspicion, but considerably less than what is necessary to convict someone. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).
Hearsay information
Hearsay information is not excluded as a basis for probable cause for issuance of a warrant. Instead, the use of hearsay evidence is sufficient to establish probable cause "so long as a substantial basis for crediting the hearsay is presented." Jones v. United States, 362 U.S. 257, 269 (1960).
In deciding whether probable cause exists to issue a warrant, the issuing judge must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, 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, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); see also United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998).
United States v. Rice, 358 F.3d 1268, 1274 (10th Cir. 2004).
The hearsay information which defendant challenges is the confidential informant's ("CI") statement that Felipe Bedolla told the CI that Felipe and defendant "cut" the drugs in the basement of Felipe's house. Defendant asserts that the CI had no first-hand knowledge of this event, that the affidavit fails to show any independent corroboration by police investigation, any criminal history of drug trafficking, any credibility or reliability of the CI, or the CI's motive to testify ( i.e., the deal he struck with law enforcement in exchange for giving this information). Defendant additionally asserts that Felipe Bedolla had not lived at 10782 Kettle Way, in Dodge City, Kansas for over three months prior to the search.
The court finds that the affidavit sets forth the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion, and the affiant-officers sufficiently supported their claim that the CI was credible or his information reliable. See Spinelli v. United States, 393 U.S. 410, 412 (1969). First, the CI told agents that Felipe Bedolla was in town, which was verified by the discovery of Felipe's vehicle. Second, the CI indicated he was about to pay off a debt to Felipe, and surveillance agents saw Felipe meet with the CI and then travel to a bank to deposit money. Third, the CI placed a controlled call to Felipe, and during this call Felipe spoke about delivering methamphetamine. Fourth, the CI owed $2,000 to Felipe, and an undercover KBI agent was present with the CI when the CI paid that money to Felipe and also received methamphetamine from Felipe.
The court does not agree with defendant's assertion that each and every item of information provided by the CI must be independently corroborated. The above circumstances enabled the magistrate to judge the validity of the informant's information, and showed some independent verification of the information given officers by the CI. Thus a substantial basis for crediting the hearsay has been presented .
Nexus
Probable cause to search a location does not depend on direct evidence or personal knowledge that evidence or contraband is located there. United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 523 U.S. 1079 (1998). The affidavit need not aver that criminal activity actually occurred in that location. See United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992). It is enough when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. Hargus, 128 F.3d at 1362. This nexus "may be established through . . . normal inferences as to where the articles sought would be located." United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982).
Here, the nexus as developed in the affidavit, although not overwhelming, is sufficient. The affidavit establishes that Felipe Bedolla was engaged in the trafficking of methamphetamine, tied defendant to Felipe Bedolla's drug trafficking activities, and established a connection between those activities and the address searched on Kettle Way.
Staleness
It is well established that probable cause to search cannot be based on stale information. United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). But staleness is not determined merely by counting the number of days between the observations recorded in the affidavit and the date of the application for a search warrant. As this court stated in United States v. Wright, 2001 WL 1159765, *2 (D. Kan. 2001):
"Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on "the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." Snow, 919 F.2d at 1460 (quoting United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986).
Where the offense in question is ongoing and continuing, the passage of time is not critically important. United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004).
The affidavit states that the CI received methamphetamine from Felipe Bedolla on 12-12-03 and 12-23-03, and that Felipe Bedolla picked up money for deliveries on 12-04-03 and 1-05-04. The search warrant was issued January 8, 2004, within three days to thirty-five days of all these transactions. The CI also states he had been buying methamphetamine from Felipe Bedolla for eight or nine months.
Defendant's primary assertions appear to be that the twelve day-period between Felipe Bedolla's last delivery on December 23, 2003 and issuance of the search warrant renders the search warrant stale, and that since Felipe Bedolla had not lived at the address at which he was alleged to have "cut" the drugs with this defendant for over three months, that information was stale.
The affidavit alleges ongoing drug activity over a period of eight or more months, and defendant's brother's delivery of methamphetamine to the confidential informant within twelve days of issuance of the search warrant. The court finds this activity to be ongoing, and rejects defendant's contention that this information is too stale. See United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001) (ongoing drug trafficking activity over three month period not stale); United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (not stale where "repeated drug offenses at several month interval).
Untruthful statements in affidavit
Defendant next contends that the affidavit by Agent Carroll included "erroneous and tainted information designed to mislead the issuing judge." Dk. 27, p. 18. Elsewhere, defendant refers to certain information as being "false and misleading." Id, p. 21. Defendant has not requested an evidentiary hearing on this issue, and has shown no entitlement to such. See United States v. Ross, 920 F.2d 1530, 1533-34 (10th Cir. 1990) (To be entitled to an evidentiary hearing, defendant must impeach the integrity of the affidavits given in support of the respective search warrants); Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (The Fourth Amendment requires a hearing on the defendant's request only when "the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause."); $149,442.43 in U.S. Currency, 965 F.2d at 874 (Under Franks, the burden is with the defendant to demonstrate deliberate falsity or reckless disregard for the truth by the affiant, supported by an offer of proof).
Defendant has made no proffer but has alleged that the affiant deliberately included the following false statements in the affidavit: 1) that defendant was present during an incident on 12-04-03 when money was collected for a previous methamphetamine delivery; 2) that defendant was present when an attempt was made on 01-05-04 to collect more money for another previous methamphetamine delivery; 3) that defendant was present on some of his brother (Felipe's) trips to Emporia to deliver methamphetamine or collect money; and 4) that defendant operates a lunch wagon with his brother (Felipe) which is usually parked at defendant's address. Dk. 27, p. 20-21.
Defendant bases almost all of the allegations of falsity upon the absence of supporting documentation in the discovery already provided to defendant by the government. But the fact that there is no independent documentation of an event stated in the affidavit, or that an event was referenced in only one of two affidavits supporting the search warrant, is insufficient to impeach the affidavit. The court has reviewed defendant's specific allegations of falsity, and finds no support for them in the record.
The court notes the government's request for sanctions against defendant's attorney "for making such a spurious claim about such a topic so vitally important to the viability of an agent's career," Dk. 91, p. 11, but denies the request as no motion for sanctions has been filed.
Unlisted items seized in search
Defendant next alleges that all items not specifically requested in the first search warrant which were seized in the first search warrant must be suppressed, specifically, various forms of methamphetamine including powder, residue and rocky substance.
There were two searches of defendant's residence. The first search was pursuant to a warrant issued at approximately 4:00 p.m. which authorized a search for "drug records" and "documents," but which did not expressly authorize a search for "drugs," "methamphetamine," or any specific kind of drugs. Agents discovered methamphetamine during the first search. The second search was pursuant to a warrant issued later that same evening, which added "methamphetamine and other illegal drugs" to the list of items to be searched for. Dk. 27, Exh. A14.
General searches are not permitted under the Fourth Amendment.
The Fourth Amendment requires that no warrants may issue except those "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L.Ed. 231 (1927). The Fourth Amendment also prohibits unreasonable searches and seizures which means that an officer must act reasonably in executing a search warrant. United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Dec. 5, 1997) (No. 97-7024). "[A] search is not invalidated merely because some things are seized that are not stated in the warrant." Id. "If evidence is illegally seized, the general rule is that 'only the improperly seized evidence, not all of the evidence, must be suppressed, unless there was a flagrant disregard for the terms of the warrant.'" Id. (quoting United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 875 (10th Cir. 1992) (internal quotations omitted)). On the other hand, when officers flagrantly disregard the terms of the warrant and seize items that grossly exceed the warrant's description, then the blanket suppression of all evidence seized is the appropriate remedy. United States v. Foster, 100 F.3d at 849-51.
United States v. Wood, 6 F. Supp. 2d 1213, 1228 (D. Kan. 1998). Defendant does not seek a blanket suppression of all evidence seized, or allege flagrant disregard by the officers to the terms of the warrant, but seeks to suppress only the improperly seized items, including methamphetamine.
The government contends that there is a logical nexus between the methamphetamine found during the first search and the terms of the first search warrant, such that the methamphetamine should not be suppressed.
The government does not contend seizure of the methamphetamine during the first search was justified by the plain view exception to warrant requirement, thus the court does not consider that exception.
"When a logical nexus exists between seized but unnamed items and those items listed in the warrant, the unnamed items are admissible." United States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981) (and cases cited therein).
United States v. Thomas, 986 F.2d 1431, 1993 WL 53600, * 6 (10th Cir. 1993) (admitting documents relating to entities other than those included on the entity list in search warrant because they were known to be related to a listed entity through prior transactions); Gentry (admitting lab equipment and documents relating to the laboratory equipment and the making of methamphetamine sulfate not specified in the search warrant, where search warrant specified methamphetamine sulfate as the object of the search); Mesmer v. United States, 405 F.2d 316 (10th Cir. 1969) (admitting plastic containers and binder in which stamps were located where search warrant specified search for stolen United States postage stamps and records.)
In interpreting warrants, courts employ a "standard of practical accuracy rather than technical precision." United States v. Ortega-Jiminez, 232 F.3d 1325, 1328 (10th Cir. 2000) (citation and quotation marks omitted). Under this standard, the court reads the first search warrant as including drugs or drug paraphernalia as items that officers could search for and seize if found. "A search is 'confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.'" United States v. Robertson, 21 F.3d 1030, 1033 (10th Cir. 1994) (quoting Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985)). The first search warrant expressly authorized seizure of drug records and the crime alleged was the possession of drug paraphernalia. The "logical nexus" test is met as to the drugs discovered during the first search.
But even if there were no nexus between the drugs and paraphernalia seized pursuant to the first search warrant and the items named in the first search warrant, defendant has failed to show any basis for suppression. It is uncontested that the officers sought and obtained a second search warrant that same evening after having discovered the methamphetamine in defendant's residence, which expressly permitted them to reenter the premises for the express purpose of searching for "methamphetamine and other drugs, drug paraphernalia . . ." Dk. 27, Exh. A-13. Defendant has not shown that officers did anything other than discover the methamphetamine and secure it within the residence before obtaining the second search warrant, which expressly permitted them to reenter the residence, seize the drugs, and remove them from the premises.
Leon good faith
Even were the court to find that the warrant was not supported by probable cause, it would nonetheless uphold the validity of the search pursuant to the good-faith exception to the exclusionary rule contained in United States v. Leon, 468 U.S. 897 (1984) (holding that evidence seized under a search warrant later determined to be invalid may be admissible if the officers executing the warrant acted in good faith and with objectively reasonable reliance on the search warrant). See United States v. Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990). The court has reviewed the four exceptions to Leon's applicability, and finds them inapplicable. See United States v. Van Shutters, II, 163 F.3d 331, 337 (6th Cir. 1998) (quoting Leon, 468 U.S. at 914-15).
IT IS THEREFORE ORDERED that defendant's motion for information regarding confidential informants (Dk. 28) is denied as moot, that defendant's motion for a bill of particulars (Dk. 76) is denied, and that defendant's motion to suppress (Dk. 26) is denied.