Opinion
CR 01-271-BR.
February 12, 2002
MICHAEL W. MOSMAN, United States Attorney, J. RICHARD SCRUGGS Assistant United States Attorney, Portland, OR., Attorneys for Plaintiff.
KENNETH R. WALKER, Walker Warren, Portland, OR., Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant Flowers's Motion to Suppress Statements (#34), Motion to Controvert and to Suppress Evidence (#36), Motion to Dismiss the Indictment Based Upon Outrageous Government Conduct Amounting to Due Process Violations (#47), and Motion to Dismiss the Indictment (#48). Defendant Flowers is charged in a two-count Indictment with Distribution of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and Possession of Cocaine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii).
For the reasons that follow, Defendant Flowers's Motions are DENIED.
BACKGROUND
After receiving information that Flowers was selling cocaine in North and Northeast Portland, undercover police officers from the Drug and Vice Division of the Portland Police Bureau conducted an investigation for several weeks in the spring of 2001. The investigation included at least five occasions when officers permitted an informant to buy cocaine from Flowers under controlled circumstances. On May 31, 2001, after the fifth "controlled buy" from Flowers, uniform patrol officers stopped and arrested him at approximately 12:30 p.m. At the scene of Flowers's arrest, a patrol officer gave him Miranda warnings. Over the next 15 hours, police officers obtained and executed search warrants at three residences, and Flowers made statements while he was in custody.
MOTION TO CONTROVERT AND TO SUPPRESS EVIDENCE
Flowers seeks to suppress the evidence seized when officers executed the search warrant for the residence at 5347 North Michigan Avenue. Flowers contends the search warrant was based on an Affidavit that contained materially false information connecting him to this residence. Flowers asserts the Affiant, Officer Max Holbrook, intentionally or recklessly included in his Affidavit false statements made by Flowers's girlfriend, Ida Beavers, to Officer Holbrook on May 31, 2001. Flowers takes particular issue with Beavers's alleged statement that she had been inside the Michigan Avenue residence in the past and had seen Flowers there in possession of drugs. Flowers also argues Officer Holbrook intentionally or recklessly omitted material information from the Affidavit. For example, Flowers claims Officer Holbrook left the issuing magistrate judge with a false impression that Flowers occasionally stayed at the Michigan Avenue residence. According to Flowers, the Affidavit lacks probable cause when stripped of these alleged falsehoods, and the resulting search warrant was issued in violation of the Fourth Amendment. Flowers maintains, therefore, that all of the direct and derivative evidence developed from the search of the Michigan Avenue residence must be suppressed.
The government asserts as a threshold matter that Flowers lacks standing to challenge the search of the Michigan Avenue residence. The government also argues Officer Holbrook neither omitted material facts nor included false information in his Affidavit. The government contends, in any event, the Affidavit supports a finding of probable cause even in the absence of the information challenged by Flowers. Finally, the government emphasizes Officer Holbrook never intentionally or recklessly misled the magistrate judge who issued the search warrant.
The government also argues Flowers failed to make the preliminary showing under Franks v. Delaware, 438 U.S. 154 (1978), required to entitle him to an evidentiary hearing. Although the Court concurs Flowers failed to meet the Franks standard, the Court observes the evidentiary hearing he sought effectively was accomplished in the proceedings the Court conducted on January 30, 2002, to address Flowers's combined Motions. The government's objection on this ground, therefore, is moot.
1. Standing
a. Facts
In order to resolve the government's preliminary objection that Flowers lacks standing to challenge the search of the Michigan Avenue residence, the Court finds the following facts by a preponderance of the evidence:
Ida Beavers is one of Flowers's girlfriends. She lives with her mother and other relatives at 3906 North Borthwick Avenue, one of the three locations police searched with warrants on the evening of May 31, 2001. Beavers knew Flowers was a drug dealer. Beavers saw Flowers "cook" drugs on occasion, and Flowers often had large sums of money he wouldn't have been able to earn otherwise. Although Flowers did not have a fixed residence, he stayed overnight at Beavers's house on North Borthwick from time to time.
When Beavers and Flowers were not getting along, he stayed overnight elsewhere. Sometimes he stayed with Kim Lanier at the Michigan Avenue residence, a duplex Lanier rented with "Section 8" assistance. Under Section 8, the names of all adults permitted to live at the premises must appear on the rental agreement. Lanier was named on the rental agreement, but Flowers was not named. In fact, when police asked Flowers after his arrest for his consent to search the Michigan Avenue residence, he declined and stated he did not have authority to grant such consent because his name was not on the rental agreement.
Although Flowers gave Lanier money each month to help her pay her bills and support their children, he did not have any contractual or legal obligation to pay rent for her residence. Sometime before early 2001, Lanier gave Flowers a key to her residence. Early in the spring of 2001, however, Lanier prepared to be away from her residence for several weeks to participate in an inpatient drug treatment program, and she took the key back from Flowers. The day she left for the treatment program, Lanier threw onto the sidewalk the clothing and personal property Flowers kept at her residence. Nevertheless, Flowers had a key to Lanier's residence in his possession when he was arrested, which means he either made an unauthorized duplicate key or somehow obtained one of the extra house keys Lanier concealed inside the duplex.
For the first 30 days of the treatment program, Lanier was restricted to the facility and did not go to the Michigan Avenue duplex for any purpose. Thereafter, she left the treatment program on conditional passes for brief periods. Sometimes she would go to the Michigan Avenue duplex. She met Flowers there on a few occasions to have sex. She, however, did not authorize Flowers to be there in her absence for any purpose personal or private to Flowers. Although Lanier found no evidence of drug activity inside her duplex when she went there on May 29, 2001, police, nevertheless, found substantial quantities of controlled substances, manufacturing materials, and scales inside when they executed the search warrant on May 31, 2001.
At the evidentiary hearing on January 30, 2002, Lanier and Flowers both testified that Lanier permitted Flowers to enter the residence occasionally in her absence to turn lights on and off and to clean spoiled food out of the refrigerator after the electrical power had been shut off for nonpayment. In both instances, Lanier stated she expected Flowers to enter the residence by asking a petite neighbor to reach through the mail slot and to unlock the door from the interior. The government emphasizes Lanier did not mention this arrangement to police or in her testimony before the Grand Jury. Even if her testimony is true, it simply shows Lanier permitted Flowers to enter her residence in her absence for limited home maintenance purposes for her benefit. This evidence, if true, does not affect the Court's analysis of whether Flowers had a personal expectation of privacy in Lanier's dwelling at the time in question. Lanier's testimony, if true, also is consistent with the Court's conclusion that Lanier never consented to Flowers possessing her house key or to Flowers otherwise occupying her residence in her absence for purposes personal to him. The Court need not decide, therefore, whether to accept as true this aspect of Lanier's testimony.
b. Discussion
In United States v. Silva, 247 F.3d 1051 (2001), the Ninth Circuit recently reiterated the well-settled standard for determining whether a defendant has standing under the Fourth Amendment to challenge a search and consequent seizure. The court noted a defendant had the burden to establish under the totality of the circumstances that the search and seizure violated his reasonable expectation of privacy in the place that was searched. Id. at 1055. To evaluate the reasonableness of an expectation of privacy, the court refers to "concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. at 1055 (citing Rakas v. Illinois, 439 U.S. 128, 134 (1978)). Several Ninth Circuit decisions have considered the asserted expectations of privacy of commercial tenants, overnight guests, or individuals who used to be roommates. See, e.g., United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999); United States v. Armenta, 69 F.3d 304 (9th Cir. 1995); United States v. Davis, 932 F.2d 752 (9th Cir. 1991).
In contrast to the facts in this matter, the court in United States v. Davis held defendant had standing to contest the search of a friend's apartment when the defendant previously resided at the apartment, still possessed a key, had permission to come and go as he pleased, had independent access to the place searched, stored items in a locked safe at the apartment to ensure privacy, and assumed an ongoing obligation to pay rent. Under the totality of the circumstances in this matter, however, the Court concludes any reasonable expectation of privacy Flowers may have had in the Michigan Avenue residence came to an end several weeks before the search when Lanier took back her key, threw out his personal property, and effectively revoked her permission for him to come and go as he pleased for his purposes in her absence.
The Court, therefore, concludes Flowers lacks standing to challenge the basis of the search warrant and to seek suppression of the evidence derived from the search.
2. Alleged Misrepresentations in Officer Holbrook's Affidavit
Alternatively, even if Flowers had standing to challenge the search warrant executed at the Michigan Avenue residence, the Court would deny Flowers's Motion to Controvert and to Suppress Evidence.
As noted, Flowers contends Officer Holbrook intentionally or recklessly misled the magistrate judge who issued the search warrant with material misrepresentations or omissions in his Affidavit. In Franks v. Delaware, the Supreme Court addressed the question whether a false statement by a government affiant invalidates a search warrant. 438 U.S. 154 (1978). The Court held a defendant is entitled to a suppression hearing upon a substantial preliminary showing that a government agent intentionally or recklessly made false statements necessary to the finding of probable cause. Id. at 171. In later cases, courts have emphasized that "misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause." Hammett, 236 F.3d 1054. To justify suppression, the challenged statements in the affidavit would have to be critical to a determination of probable cause, and the remaining information would have to be insufficient to establish probable cause. Franks, 438 U.S. at 172.
Flowers primarily argues Officer Holbrook recklessly included an alleged falsehood in his Affidavit: namely, Ida Beavers told Officer Holbrook on May 31, 2001, that she previously had seen Flowers with drugs inside the Michigan Avenue residence. Both Beavers and Flowers testified Beavers had never been inside Lanier's residence and, therefore, Beavers could never have seen Flowers there with drugs. To corroborate the assertion that Beavers had never been inside Lanier's residence, Flowers and Beavers both emphasized the animosity that existed between Beavers and Lanier. Both Beavers and Lanier apparently were intimately involved with Flowers simultaneously. Both Beavers and Lanier permitted Flowers to sleep at their respective residences. When there were problems in Flowers's relationship with Beavers, he stayed with Lanier.
Flowers challenges other details in Officer Holbrook's Affidavit, but they are inconsequential to Flowers's argument and do not merit discussion.
Based on the combined testimony of Lanier, Beavers, and Flowers, the Court concludes it is probable Lanier never permitted Beavers inside her home and would not tolerate drugs within her residence. Although Lanier was in and out of her residence during much of the time she was in treatment, she saw no evidence as late as May 29, 2001, of drugs having been there in her absence. The Court concludes, therefore, Flowers probably did not keep drugs at Lanier's residence until after May 29, 2001, if even then. Accordingly, it is improbable that Beavers saw Flowers inside Lanier's residence with drugs.
The Court, nevertheless, concludes Beavers told Officer Holbrook she had seen Flowers in Lanier's residence with drugs. Beavers's testimony on this detail was repeatedly inconsistent and hardly convincing. Beavers both denied making the statement and admitted she "could have" made the statement to Officer Holbrook out of anger with Flowers. Indeed, she knew Flowers was a drug dealer and "cooked" his own product. She also knew his drug materials had to be somewhere, and presumably they were not at her residence. The Court, therefore, finds it likely that Beavers, angry with Flowers, told Officer Holbrook he would find Flowers's drugs and manufacturing materials at the Michigan Avenue residence and that she had seen Flowers there with drugs in the past.
The Court also finds there was no reason for Officer Holbrook to be concerned that Beavers's statement in this regard was false when he included it in his Affidavit. Indeed, police officers had seen Flowers on May 29, 2001, enter and leave the Michigan Avenue residence. They had seen him sell cocaine to their informant within two to three blocks of the Michigan Avenue residence more than once. By the time Officer Holbrook presented his Affidavit to the magistrate judge who issued the search warrant, police officers already had searched Beavers's residence on North Borthwick and the Ninth Avenue residence, the only other place they knew Flowers stayed from time to time. Under the circumstances, it was quite reasonable for Officer Holbrook to believe Beavers's statements.
In summary, the Court concludes Beavers's statement that she previously had seen Flowers with drugs inside the Michigan Avenue residence probably is not true, but, in turn, it probably is true that Beavers made the statement to Officer Holbrook. The Court also concludes there was no reason for Officer Holbrook to suspect Beavers's statement was not true when he included it in his Affidavit; therefore, there is no basis to exclude the statement from the Affidavit and no reason to suppress the results of the search authorized by the search warrant for the Michigan Avenue residence. For these reasons, even if Flowers had standing to challenge the search warrant executed at the Michigan Avenue residence, the Court would deny Flowers's Motion to Controvert and to Suppress Evidence.
MOTION TO SUPPRESS STATEMENTS
Flowers contends he did not make a knowing, intelligent, and voluntary waiver of his Miranda rights and, therefore, the statements he made on May 31 and June 1, 2001, should be suppressed.
In connection with sentencing proceedings in a state prosecution against Flowers in 1989, Faulder Colby, Ph.D., a psychologist, concluded Flowers was not able to aid or to assist in his defense. At that time, Dr. Colby described Flowers's intelligence as "marginal" and noted Flowers engaged in confused thinking. In his Motion to Suppress Statements in this proceeding, Flowers relies on Dr. Colby's 1989 report and apparently asserts he lacked sufficient mental capacity on May 31, 2001, to understand his Miranda rights, and, therefore, he could not have knowingly waived his Miranda rights. In his testimony at the hearing on January 30, 2002, Flowers also contended he was asked to give post-Miranda statements over an excessive period of time while confined in a holding cell at Central Precinct. To resolve the factual issues underlying this Motion, the Court finds the following additional facts by a preponderance of the evidence:
Flowers has not presented the results of a current, apparently ongoing, psychological evaluation in this proceeding.
1. Facts
Flowers was born in British Honduras, where he lived in abusive circumstances. After he completed high school, he came to the United States. He lived in the Los Angeles area before he moved to Oregon. In 1989, when he was 28, he was convicted of state assault and burglary charges. In the years preceding the arrest at issue here, Flowers worked from time to time as a self-taught carpenter. He earned his main income and supported himself and his children, however, by manufacturing and selling illegal drugs, including cocaine. Flowers is intelligent enough to have learned how to "cook" cocaine and to service a clientele of drug users, including the informant to whom Flowers sold cocaine on five occasions preceding Flowers's arrest on May 31, 2001.
Uniformed police officers in two marked patrol cars arrested Flowers and a passenger in a traffic stop about 12:30 p.m. on May 31, 2001. At the stop location, Flowers was standing outside of a marked police car in handcuffs. About 12:34 p.m., Drug and Vice Division Officer Darrell Shaw, who was in plain clothes, advised Flowers of his Miranda rights and used the exact text that appears in Exhibit 1, which was received by the Court at the hearing on January 30, 2002. Officer Shaw asked Flowers if he understood these rights, and Flowers responded, "Yeah." Officer Shaw asked Flowers for consent to search the vehicle he had been driving. Flowers inquired whether he "could say `no.'" When Officer Shaw responded that Flowers could refuse consent to search the car, Flowers told the officer to "go ahead." No officer had a gun drawn during the stop. Flowers had no apparent problem using and understanding the English language. In Officer Shaw's opinion, Flowers understood his Miranda rights and voluntarily waived them.
Flowers was transported in custody to the Drug and Vice Division at Central Precinct where he made statements to investigators. At approximately 11:15 p.m., Officer Holbrook began interviewing Flowers. When the discussion turned to Flowers's association with the Michigan Avenue residence, Officer Holbrook asked Flowers for consent to search the residence. Flowers said he could not give consent because he did not live there and his name was not on the rental agreement. When asked questions about the drugs found in the Michigan Avenue residence pursuant to the search warrant, Flowers declined to answer and said he did not want to lie, but he also did not want to do himself harm by answering truthfully. At some point in his discussion with Officer Holbrook, Flowers inquired about the possibility of cooperating in exchange for lenient treatment. Officer Holbrook explained that process would have to be approved in advance by his supervisor and the prosecuting attorney. In Officer Holbrook's opinion, Flowers appeared to understand fully all of his rights, including his right to remain silent as evidenced by his decision not to answer certain questions.
The only Miranda warnings investigators gave Flowers occurred at the inception of the traffic stop. From the time he arrived at Central Precinct, Flowers either was confined to a holding cell in the Drug and Vice Division or in an interview room giving a statement to an investigator. Investigators gave Flowers water, checked on him periodically, took him for restroom breaks, brought him a "fast food" meal, gave him a jacket or a blanket for warmth, and found him sleeping on several occasions. Flowers was booked into jail at 5:00 a.m. on June 1, 2001.
2. Discussion
For a statement made during a custodial interrogation to be admissible, any waiver of constitutional rights must be voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 479 (1966). A valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. North Carolina v. Butler, 441 U.S. 369, 374-75 (1979). To be knowing and intelligent, "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). The test for voluntariness is "whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir. 1990) (quoting United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988)). The government has the burden of showing a valid waiver. North Carolina v. Butler, 441 U.S. at 373. There is a presumption against waiver. Id.
As noted, Flowers argues he previously was found to be of minimal intelligence. Although Flowers never testified at the hearing on January 30, 2002, that he did not understand his rights, apparently he contends in his Motion that he did not understand his Miranda rights in the circumstances surrounding his arrest and detention in this matter and that those circumstances were "confusing" to him. This argument, however, is unavailing.
Officers Shaw and Holbrook testified to all of the circumstances that led each of them to believe Flowers understood his rights at the time of his arrest, and the Court finds their testimony wholly credible. The Court also notes Flowers had significant experience with the criminal justice system and was an experienced drug dealer who was able to generate enough income in that competitive "trade" to support at least two of his children for some time to their mother's satisfaction. Flowers, moreover, also appreciated he "could say no" to Officer Shaw's request for consent to search Flowers's car. In addition, Flowers declined to give consent to search the Michigan Avenue residence and gave the informed reason that his name was not on the lease. Finally, throughout the evidentiary hearing, Flowers appeared conversant and responsive to both direct and cross-examination.
After considering the totality of the circumstances in this case, the Court is persuaded Flowers fully understood his rights, and his waiver was both knowing and intelligent. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir. 1985) (defendant's Miranda waiver knowing and intelligent despite asserted foreign language barrier). See also United States v. Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir. 1993) (court held Mexican laborer with sixth-grade education validly waived Miranda rights).
The Court also concludes Flowers's statements were voluntary. Although Flowers emphasized in his testimony that he was held in custody "for 15 hours," there is no evidence of any police coercion. The undisputed facts show investigators were attentive to Flowers's physical needs for food, drink, warmth, and rest. When Flowers declined to answer specific questions about the drugs found at the Michigan Avenue residence because he neither wanted to lie nor to harm himself with incriminating statements, Officer Holbrook sought a search warrant rather than press Flowers further. Finally, it was Flowers rather than the investigators who first raised the possibility of Flowers's cooperation with authorities in exchange for lenience. After considering all of the circumstances, the Court concludes the government has shown Flowers's statements were voluntary. For these reasons, the Court denies Flowers's Motion to Suppress Statements.
MOTION TO DISMISS THE INDICTMENT BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT AMOUNTING TO DUE PROCESS VIOLATIONS
Flowers filed this Motion pro se. The basis of the Motion is unclear. The Court, nevertheless, sets forth the standard for dismissal of an indictment based on allegations of outrageous government conduct.
In the Ninth Circuit, outrageous government conduct may give rise to due process concerns and justify the dismissal of an indictment only when "the government's conduct [is] so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995) (citation omitted), cert. denied, 517 U.S. 1148 (1996). Government conduct amounts to a due process violation when the government "either completely fabricates the crime solely to secure the defendant's conviction or uses excessive physical or mental coercion." Id. This is an "extremely high standard" for a defendant to meet. Id.
When evaluating such a claim, the court must "consider the government's conduct objectively, without regard to the defendant's predisposition." United States v. Emmert, 829 F.2d 805, 811 (9th Cir. 1987). See also McClelland, 72 F.3d at 720 n. 1 (court outlined the differences between outrageous government conduct and an entrapment defense). Only when "government agents engineer and direct the criminal enterprise from start to finish" does their behavior violate due process protections. McClelland, 72 F.3d at 721-22 (citation omitted). Government agents, however, "may lawfully use methods that are neither appealing nor moral if judged by abstract norms of decency." United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989), amended by 907 F.2d 115 (9th Cir. 1990).
On only one occasion has the Ninth Circuit ordered dismissal of an indictment based on outrageous government conduct. See Greene v. United States, 454 F.2d 783 (9th Cir. 1971). In Greene, the government agent set up and sustained a bootlegging operation over a three-year period, pressured the defendants to become involved, and served as the only customer of the bootlegging operation. The court held the government may not involve "itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators." 454 F.2d at 787.
In contrast, the Ninth Circuit also has stated its "sense of justice is not shocked . . . when the government merely infiltrates a criminal organization, approaches persons already engaged in or anticipating a criminal activity, . . . provides valuable and necessary items to the conspiracy," United States v. So, 755 F.2d 1350, 1353, (9th Cir. 1984) (citations omitted), or offers large financial incentives to suspects who are particularly vulnerable to such inducements. See United States v. Cuellar, 96 F.3d 1179 (9th Cir. 1996) (no outrageous conduct even though government paid informant a half million dollars based on percentage of laundered funds and on results obtained), supplemented by 97 F.3d 1461 (9th Cir.), cert. denied, 520 U.S. 1109 (1997). See also United States v. Citro, 842 F.2d 1149, 1152 (9th Cir. 1988) (court rejected outrageous government conduct claim because the government supplied counterfeit credit cards when defendant identified potentially collusive merchants and made necessary introductions), cert. denied, 488 U.S. 866 (1988). See also United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991) (undercover agent encouraged teenage patient in drug treatment center to deal drugs); Emmert, 829 F.2d 805 (9th Cir. 1987) (government offered college student $200,000 to secure cocaine supply for government agent).
The mere use of confidential informants also is insufficient to establish outrageous government conduct. See United States v. Winslow, 962 F.2d 845, 849 (9th Cir. 1992) (court rejected outrageous government conduct claim even though informant paid for components of bomb). Indeed, in McClelland, the Ninth Circuit affirmed a conviction in a murder-for-hire case in which the defendant expressed reluctance to follow through with the plan to murder his wife, and the informant encouraged him to continue. 72 F.3d at 719.
The Ninth Circuit has characterized the standard for dismissal of an indictment on grounds of outrageous government conduct as requiring proof of conduct that is "so excessive, flagrant, scandalous, intolerable and offensive" and "so grossly shocking and so outrageous as to violate the universal sense of justice." Cuellar, 96 F.3d at 1182 (citations omitted). Whatever the basis of his Motion may be, Flowers has not met the extremely high burden required of him. The Court, therefore, denies Flowers's Motion to Dismiss the Indictment Based Upon Outrageous Government Conduct Amounting to Due Process Violations.
MOTION TO DISMISS THE INDICTMENT
Flowers also filed this Motion pro se. Flowers alleges the police did not "knock and announce" before entering Beavers's home on North Borthwick to execute the search warrant. Flowers also alleges Officer Holbrook's report describing the circumstances at the Beavers's residence is inaccurate in several respects. Based on the credible testimony of the police witnesses, however, the Court finds the officers knocked and announced their presence before entering the Beavers's residence. The Court also concludes Flowers's issues with Officer Holbrook's report do not provide a basis to dismiss the Indictment.
The government did not raise the issue whether Flowers has standing to challenge the manner in which police executed the search warrant at Beavers's residence on North Borthwick.
Finally, Flowers cites in this Motion Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001), the now-withdrawn opinion of the Ninth Circuit. In Buckland, a three-judge panel held unconstitutional 21 U.S.C. § 841(b)(1)(A)and (b)(1)(B), the statutes Flowers allegedly violated pursuant to the Indictment in this matter. Recently, however, the Ninth Circuit reversed its earlier decision and emphasized the constitutionality of these statutes. Buckland, F.3d, No. 99-30285, 2002 WL 63718 (9th Cir. Jan. 18, 2002).
Based on the foregoing, the Court denies Flowers's Motion to Dismiss the Indictment.
CONCLUSION
For the above reasons, the Court DENIES Defendant Flowers's Motion to Suppress Statements (#34), Motion to Controvert and to Suppress Evidence (#36), Motion to Dismiss the Indictment Based Upon Outrageous Government Conduct Amounting to Due Process Violations (#47), and Motion to Dismiss the Indictment (#48).
IT IS SO ORDERED.