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denying motion to suppress because even if the officer saw defendant's medical marijuana card, "the strong odor of marijuana gave Barnes probable cause to search the car's trunk to determine whether Li in fact possessed the marijuana for personal medical needs . . . or the transportation of marijuana was 'reasonably related to [her] medical needs.'"
Summary of this case from United States v. CollinsOpinion
No. 2:13-CR-00050-KJM
01-06-2015
UNITED STATES OF AMERICA, Plaintiff, v. ZHIQIANG LIU, et al., Defendant.
ORDER
The following motions are currently pending before the court: (1) a motion to suppress evidence derived from a GPS warrant issued on October 25, 2012 by the Sacramento County Superior Court, filed by defendant Qinghong Li and joined by defendant Shihong Chen, ECF Nos. 71, 86; (2) a motion to suppress observations from a vehicle stop on February 21, 2012, filed by defendant Li and joined by defendant Chen, ECF Nos. 79, 86; (3) a motion to suppress evidence obtained as the result of a GPS warrant issued on November 16, 2012 by the duty magistrate judge, filed by defendant Li and joined by defendant Chen and in part by defendant Zhiqiang Liu, ECF Nos. 80, 82, 86; (4) a motion to suppress evidence derived from the federal GPS warrant filed by defendant Liu and joined by defendant Chen, ECF Nos. 82, 86; (5) a motion to dismiss the indictment, arguing the government's marijuana policies are arbitrary within the meaning of the Fifth Amendment and violate the doctrine of equal sovereignty, filed by all defendants, ECF No. 87; (6) a motion to suppress evidence derived from "a police sniff and listening" outside Cliffcrest Drive on December 10, 2012 and outside McKenna Drive on October 23, 2013, filed by defendant Li and joined by defendant Chen, ECF Nos. 94, 86; (7) a motion to suppress all evidence obtained from a residence on McKenna, seized as a result of federal search warrant 2:13-sw-0053, filed by defendant Li and joined by defendant Chen, ECF No. 95; and (8) a motion to suppress evidence seized from the search of Gwerder Court, filed by defendant Jun Mou Peng, ECF No. 96. At hearing, defendant Liu joined in all of defendant Li's motions.
The government has filed an omnibus opposition to the motions. Opp'n, ECF No. 97. Defendant Chen has filed a reply. ECF No. 98.
The court heard argument on July 9, 2014, Olusere Olowoyeye appeared for the government: Douglas Beevers appeared for Qinghong LI; Keith Staten appeared for Zhinqiang Liu; Mark Reichel appeared for Shihong Chen; and Chris Cosca appeared for Jun Mou Peng. All defendants were present and were assisted by the Cantonese interpreter.
After considering the parties' arguments, the court DENIES the motions to suppress and the motion to dismiss. I. THE MOTIONS TO SUPPRESS
The three warrants in this case built on the information presented in and evidence derived from the earlier warrants, as well as evidence secured through a vehicle stop and the "sniff outside two houses. After addressing the threshold question of standing, the court describes each event separately below and then addresses the parties' challenges to that particular event.
A. Standing—The Reasonable Expectation of Privacy
A defendant who claims that government action violated his or her Fourth Amendment rights must generally demonstrate that he or she had a "legitimate expectation of privacy" in the place searched or the thing seized and that this expectation is one society recognizes as legitimate. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004). Courts generally use the term "standing" to refer to this reasonable expectation of privacy, even though the concept "is analytically distinct from 'case or controversy' standing in the Article III context." United States v. Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011). The Ninth Circuit has said Fourth Amendment standing "is not jurisdictional," United States v. Garcia-Villalba, 585 F.3d 1223, 1234 n.6 (9th Cir. 2009), and thus "may be bypassed in favor of the merits," Ewing, 638 F.3d at 1230, or "waived . . . by failing to raise it." United States v. Huggins, 299 F.3d 1039, 1050 n.15 (9th Cir. 2002); but see United States v. Paopao, 469 F.3d 760, 764 (9th Cir. 2006) (stating government could challenge defendant's standing in defendant's appeal from denial of suppression motion even though government had not raised the issue in the district court).
The government has not addressed defendants' standing to raise any of the challenges before the court, and at hearing, defendants said they each had adequately addressed standinng in the respective motions. As the idea of "standing" is one of substantive Fourth Amendment law, Ewing, 638 F.3d at 1230, the court discusses it, if needed, in connection with the challenges to the searches.
B. Warrantless Searches
As noted, the defense challenges three warrantless searches: the seach of Li's car and the two "sniff" searches. ECF Nos. 79, 94.
It is the government's burden to justify a vehicle stop, just as it is its burden to justify warrantless searches. United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012) (government's burden to show reasonable suspicion for vehicle stop); United States v.Carbajal, 956 F.2d 924, 930 (9th Cir. 1992) ("The burden is on the Government . . . to show the reasonableness of a warrantless search. This includes demonstrating that the search comes within one of the narrow exceptions to the warrant requirement.") (internal citations omitted).
Although the government acknowledges defendants' challenge to the "sniffs" outside Cliffcrest and McKenna in the introduction to its opposition, it does not engage the issues substantively. See ECF No. 97 at 1. Moreover, it does not even acknowledge Li's motion to suppress the observations from the vehicle stop, much less provide a copy of any police report prepared as the result of the contact or address the differing descriptions of the search of Li's car. It did address both motions during the hearing on the motion; although this is not the ideal way of meeting the defense challenges, it does preserve the government's position. United States v. Scott, 705 F.3d 410, 416 (9th Cir. 2012) (finding that government's theory was not forfeited when it was raised during the evidentiary hearing but not included in the government's opposition).
The court acknowledges that Li's account of the stop and search is different in some respect than Barnes', but denies Li's request for an evidentiary hearing to resolve the differences, ECF No. 79 at 8, for even assuming Li's rather than Barnes' account is correct, it does not justify suppression. See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (recognizing evidentiary hearing was unnecessary when district court assumed defendant's account was correct for purposes of ruling). Moreover, as there is no suggestion the facts about the sniffs are contested, no evidentiary hearing is required.
1. The Vehicle Stop of February 12, 2012
The state and federal GPS warrant affidavits and the affidavit for the warrant to search the houses contain the following narrative: On February 12, 1012, Elk Grove Police Department (EGPD) Officer Barnes stopped a black Lexus, license number 4WYU928, near the residence on Cliffcrest Drive where officers ultimately found marijuana. Affidavit for State GPS Warrant, ECF No. 78 at 20; Affidavit for Federal GPS Warrant, ECF No. 80-1 ¶ 11; Affidavit for Federal Search Warrant, ECF No. 95-1 ¶ 21. Officer Barnes identified the occupants of the Lexus as defendants Li and Chen and observed two electric ballasts, warm to the touch, and two high power cultivation light hoods inside the car. Id. He also detected a strong odor of marijuana inside the car. Id. The state GPS affidavit and federal search affidavit include additional facts: Li told Barnes that both she and Chen had medical marijuana cards and that they lived in San Francisco and were just visiting the area. ECF No. 78 at 20. The state affidavit also reports that Barnes found neither medical marijuana cards nor marijuana in the Lexus. ECF No. 78 at 20; ECF No. 95-1 ¶ 21.
Li has provided a declaration saying the officer told her he stopped her car beause of "too much tint on the windows." Decl. of Qinghong Li, ECF No. 79 at 9. In response to the officer's question about marijuana usage, Li said she had a marijuana license; the officer searched her purse and found the license. Id. ¶ 2. The officer also searched the trunk of the Lexus and found two light hoods and other equipment. Id. ¶ 3.
Li's motion does not challenge the initial stop of the car. ECF No. 79 at 5. Indeed, California courts have found a vehicle stop lawful when the officer's view through a car's side window was obscured by the tint, thus giving rise to reasonable suspicion the car's windows were illegally tinted in violation of California Vehicle Code § 26708.5(a). People v. Roberts, 184 Cal. App. 4th 1169, 1190-91 (2010).
Li acknowledges the officer did not need a warrant to search her car's trunk if he had probable cause for the search. See California v. Avecedo, 500 U.S. 565, 580 (1991); United States v. Phillips, 2:13-CR-00398-MCE, 2014 WL 1275916 at *3-4 (E.D. Cal. Mar. 27, 2014) ("[I]f police have probable cause to believe that evidence of a crime is somewhere inside a vehicle, they can search anywhere within the vehicle . . . that might contain the object of the search.") (internal citation omitted). Federal cases have held that "a 'moderate to strong odor' of marijuana coming from the vehicle" gives rise to probable cause to search the vehicle's trunk. United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003); see also United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) (agent's "smelling the marijuana then constituted probable cause to believe there was marijuana in the vehicle); but see United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998) (establishing distinction between odor of burnt marijuana, which suggests the passengers are using rather than transporting marijuana, and thus does not justify search, and odor of raw marijuana, which suggests transportation and justifies search).
However, defendant notes the search was performed by the EGPD, approximately nine months before federal law enforcement officials became involved in the investigation. Li argues that "[t]he mere fact of the smell of marijuana is not enough for probable cause, because under California law marijuana has lawful medical use which is common." ECF No. 79 at 2. She points to California's Medical Marijuana Program Act (MMPA), which exempts certain classes of people from criminal prosecution; any probable cause determination must take the MMPA into account. Id.
The government argues that state standards are not applicable and that the officer did not have to eliminate the possibility Li's activities were undertaken legally before concluding he had probable cause to search. The government cites United States v. $186,416.00, 590 F.3d 942 (9th Cir. 2009). That case involved the seizure and ultimate forfeiture of money taken from a medical marijuana cooperative by state authorities, in reliance on a state warrant. When the money was released to federal authorities for the initiation of forefeiture proceedings, the cooperative challenged the seizure. The district court suppressed the evidence because the warrant had not complied with Rule 41 of the Federal Rules of Criminal Procedure. The Ninth Circuit disagreed, noting that Rule 41 did not apply to state searches conducted by state officers. It also said: "While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. . . . Instead, it sought a warrant from a state court judge, though, . . . it lacked probable cause for a state law violation . . . . [¶] Accordingly, the search was not illegal because it failed to comply with Rule 41 but because it violated UMCC's Fourth Amendent right[s] . . .in light of the absence of probable cause under state law." Id. at 948; see also Hawkins v. Mitchell, 756 F.3d 983, 994 (7th Cir. 2014) ("'The existence of probable cause . . . depends, in the first instance, on the elements of the predicate criminal offense(s) as defined by state law.'" (quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 715 (7th Cir. 2013)).
The government cites to the decision as it appeared at 583 F.3d 1220 (9th Cir. 2009), but that order was amended and superseded on denial of rehearing.
Defendant relies on County of Butte v. Superior Court, 175 Cal.App. 4th 729 (2009), to argue that the illegality of marijuana under federal law did not prevent the arrest from being illegal under state law. In County of Butte, however, the court did not consider the legality of an arrest, but rather whether the real party in interest could bring a civil suit to challenge an officer's order that he destroy medical marijuana he was growing lawfully; it discusses only obliquely the impact of California's medical marijuana laws on the propriety of searches and so does not provide guidance for the questions before the court.
Under California's Compassionate Use Act (CUA), the criminal laws relating to the possession and cultivation of marijuana do not apply to a patient who possesses or cultivates marijuana for personal medical use, based on the recommendation of a physician. Littlefield v. Cnty. of Humboldt, 218 Cal. App. 4th 243, 250-51 (2013) (citing People v. Kelly, 47 Cal. 4th 1008, 1012-13 (2010)). "'[T]he CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee's having a physician's recommendation or approval.'" Id. (quoting Kelly, 47 Cal. 4th at 1012-13) (citations omitted; emphases in original).
In 2003, the California Legislature enacted the MMPA "'to faciliate the prompt identification of qualified patients . . . in order to avoid unnecessary arrest and prosecution . . . and provide needed guidance to law enforcement officers." Id. at 250-51. Under both the CUA and the MMPA, a patient with a recommendation for medical marijuana may possess an amount "reasonably related the patient's current medical needs." Id. at 251 (citing People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997)). Accordingly, "'[l]aw enforcment officers may arrest a qualified patient for marijuana offenses where they have probable cause, based on all of the surrounding facts including qualified patient status, when they have reason to believe, for instance, that the arrestee does not possess marijuana for his personal medical purposes.'" Id. at 252 (quoting People v. Strasburg, 148 Cal. App. 4th 1052, 1058 (2007)); see also United States v. Phillips, 9 F. Supp. 3d 1130, 1137 (E.D. Cal. 2014). ("[W]hen officers become aware that a suspect has a medical marijuana card, the officers must take that information into account when determining whether there is probable cause to conduct a warrantless search . . . ."); Stewart v. Morris, Case No. 10-cv-04106 NJV, 2013 WL 5268977, at *8 (N.D. Cal. Sept. 17, 2013) ("[T]he MMPA provides only an affirmative defense to prosecution; it does not create a new standard for probable cause, search or arrest.").
Transportation of marijuana is generally a crime. However, the MMPA also provides that a qualified patient who "'transports . . . marijuana for his or her own personal medical use'" "'shall not be subject, on that sole basis, to criminal liability'" for transportation. People v. Dowl, 57 Cal. 4th 1079, 1086 (2013) (quoting Health & Saf. Code § 11362.715). However, even under the CUA and the MMPA, "the Legislature intended to limit the circumstances under which the transportation of medical marijuana is lawful to situations in which the transportation is reasonably related to the patient's medical needs." People v. Wayman, 189 Cal. App. 4th 215, 223 (2010). "'The medical marijuana laws were never intended to be 'a sort of "open Sesame" regarding the possession, transportation and sale of marijuana in this state.'" Id. (quoting Trippet, 56 Cal. Capp. 4th at 1546; fn. omitted).
In this case, when Officer Barnes stopped Li's car, he smelled a strong odor of marijuana. Li told Barnes she lived in San Francisco and was just visiting the area. Even assuming Barnes saw Li's medical marijuana card as Li avers, the strong odor of marijuana gave Barnes probable cause to search the car's trunk to determine whether Li in fact possessed the marijuana for personal medical needs, Strasburg, 148 Cal. App. 4th at 1060, or the transportation of marijuana was "reasonably related to [her] medical needs." Wayman, 189 Cal. App.4th at 223.
Li's motion to suppress observations from the vehicle stop is denied.
2. The "Sniffs" at Cliffcrest Drive and McKenna Drive
According to the federal search warrant affidavit, on October 23, 2012, at 5:15 a.m., officers "approached the front entry area of the residence" at Cliffcrest and "smell[ed] a strong odor of marijuana coming from the residence and further heard the familiar sounds of a loud humming sound which is consistent with the sound made from the large high power blower fans which are commonly used to circulat[e] the air inside indoor marijuana grows." ECF No. 95-1 at 15 ¶ 26. The federal GPS warrant affidavit reports detectives "walked up to the front door and could smell a strong odor of marijuana . . . as well as hear a loud humming sound . . . ." ECF No. 80-1 at 8. The state GPS warrant affidavit says that the EGPD detectives "walked up the driveway and on the sidewalk up to the front door which was accessible to the public. While standing in the front entry area, we could smell a strong odor or marijuana . . . as well as hear a loud humming sound . . . ." ECF No. 78 at 23.
Later, on December 10, 2012, investigators drove to McKenna Drive and "could smell a strong odor of marijuana while in the driveway of the residence. Investigators could also hear the familiar humming sounds of a high power ventilation system coming from inside the garage as well." ECF No. 95-1 at 22 ¶ 45.
Li relies on Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409 (2013), to argue the officers' sniff violated her rights. In Jardines, police used a drug-sniffing dog to explore outside of Jardines' home and onto the porch. The dog alerted at the front door, information that was included in the affidavit supporting the search warrant. Id. at 1413-14. The Supreme Court held that the dog's intrusion on to the porch was a search within the meaning of the Fourth Amendment.
At hearing on the instant motion, the government argued the officers relied in good faith on prior authority that had held the sniffs were not illegal. See Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011) ("Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule."). It did not, however, identify any binding precedent upon which the officers could reasonably have relied.
In Jardines, the Court explained that "[w]hen 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a "search" within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.'" 133 S. Ct. at 1414 (quoting United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 950-51 (2012)). It reviewed the facts of that case:
The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.Id. The Court continued that although there is an implied license for a visitor, including an officer, to approach the home, knock, wait briefly and leave, there is "no customary invitation" to bring a police dog to sniff around the home "in hopes of discovering incriminating evidence." Id. at 1416. It added that "background social norms that invite a visitor to the front door do not invite him there to conduct a search." Id. Jardines thus expanded on the idea explored in Jones, that the protections of the Fourth Amendment "do not rise or fall with the Katz [reasonable expectation of privacy] formulation," but are also concerned with "government trespass upon the areas" enumerated in the Fourth Amendment. Jones, 132 S. Ct. at 950. Under this formulation, a "[t]repass alone" does not by itself establish a constitutional violation, but rather "must be conjoined with that what was present here: an attempt to find something or to obtain information." Id. at 951 n.5.
In this case, Li and Chen claim they are entitled to challenge the sniff at Cliffcrest because the GPS information showed Li was an overnight guest at that residence. ECF No. 94 at 2. Chen does not separately address his expectation of privacy in the houses. However, Jardines is based not on the expectation of privacy, but rather on the common-law protection against trespass. It is true that an overnight guest may have an expectation of privacy in the place he has spent the night. Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) ; but see United States v. Silva, 247 F.3d 1051, 1055 (9th Cir. 2001) (overnight guest had no reasonable expectation of privacy in shed even though he had key and spent night because there was no evidence he was guest of identifiable host or that there was any activity in shed besides drug manufacture). Even assuming Li has standing, she cites to nothing suggesting an overnight guest may rely on the "common-law trespassory test" expounded on in Jardines. Jones, 132 S. Ct. at 952; see also Johnson v. Cnty. of Contra Costa, NO. C 09-01241 WHA), 2010 WL 3491425, at *15 (N.D. Cal. Sep. 3, 2010) (tort of trespass requires plaintiff to prove ownership or control of property, among other things).
Li and Chen spent more time at McKenna: the GPS showed their cars, the Lexus and the blue Sienna were parked overnight there for several days and both were seen taking children to and from school. ECF No. 78 at 19-21. In addition, Chen was the utilities subscriber and the blue Sienna was registered to him at McKenna. Id. at 19. But the property was owned by Bai Qiong Li. Id. at 20. Neither Li nor Chen have presented any evidence showing they controlled, rather than visited the property, or that the officers' conduct in walking up the driveway to sniff and listen violated any implied license they had authority to assert. Their challenges to the sniffs are denied.
C. Challenges to Search Warrants
Defendants argue that the three warrants in this case are not supported by probable cause and that the supporting affidavits suffer from fatal ommissions. They request an evidentiary hearing. The government counters that the warrants were based on probable cause and there were no material omissions from the affidavits.
The warrant clause of the Fourth Amendment requires "probable cause, supported by Oath or affirmation" to justify the issuance of a search warrant. U.S. Const. amend. IV. "Probable cause exists when, considering the totality of the circumstances, the affidavit shows that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004) (quotations omitted). "[O]pinions and conclusions of an experienced agent regarding a set of facts are properly a factor in the probable cause equation under the Gates totality of the circumstances approach." United States v. Motz, 936 F.2d 1021, 1024 (9th Cir. 1991) (internal quotations omitted). A fair probability does not require "certainty or even a preponderance of the evidence," only "a colorable argument for probable cause. . . ." United States v. Krupa, 658 F.3d 1174, 1179-80 (9th Cir. 2011).
This court's review of a warrant affidavit is deferential: "the duty of a reviewing court is simply to ensure that the magistrate [judge] had a 'substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (alteration in original); United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007). In reviewing an affidavit, the court must interpret it "in a 'common-sense' fashion, not in a hypertechnical manner; and in a close case, any doubt is to be resolved in favor of upholding the warrant in order to encourage resort to orderly legal processes." United States v. Coleman, 423 F. Supp. 630, 633-34 (N.D. Cal. 1976) (citing, among other cases, United States v. Ventresca, 380 U.S. 102, 108-09 (1964); United States v. Wong, 470 F.2d 129 (9th Cir. 1972)).
A challenge to an affidavit supporting a search warrant must generally be based on the face of the affidavit. However, in Franks v. Delaware, the United Sates Supreme Court held that a defendant is entitled to a hearing to challenge an affidavit when she satisfies a two-part test: First, she must make a substantial preliminary showing that the affidavit includes false statements included deliberately or as the result of a reckless disregard for the truth. 438 U.S. 154, 171 (1978). This showing must be accompanied by an offer of proof. Id. Deliberate or reckless omissions of facts that tend to mislead may also trigger a Franks hearing. United States v Jawara, 474 F.3d 565, 582 (9th Cir. 2007). Second, "the court must determine that the challenged statement is necessary to a finding of probable cause, i.e., that its excision would leave the affidavit with insufficient content to establish probable cause." United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982) (citing Franks, 438 U.S. at 171-72).
When the results of a warrant-based search are challenged in a motion to suppress, the defendant bears the burden of demonstrating the search was unreasonable under the Fourth Amendment. See United States v. Ankeny, 502 F.3d 829, 836 (9th Cir. 2007).
1. The State GPS Warrant
a. The Affidavits
In April 2012, Sacramento Municipal Utility District (SMUD) employee Rod Fetch reported high power usage at 86** Everidge Court, Sacramento (Everidge) to EGPD Detective Roy Keller. ECF No. 78 at 15. The average monthly power usage was 9,936 kilowatt hours (KWH), which Fetch said was consistent with marijuana production. Id. Fetch advised Detective Keller the utilities subscriber for Everidge was Limei Feng. Id. at 15. Detective Keller learned Zhiqiang Liu listed Everidge as his place of residence. Id. However, Liu's registered DMV address was Wisconsin Street, San Francisco. The owner of Everidge was Green Venture LLC, with the same San Francisco address as Liu. Id. at 17.
On April 5, 2012, Detective Keller drove to Everidge and observed the windows were covered by blinds, two windows were partially open, and the screens were dirty with debris. Id. at 15. In Keller's experience, the appearance was consistent with a marijuana grow house: windows are left open for ventilation and the suction from the fans leaves a debris build-up on the screen. Id.
On April 12, 2012, Detective Keller and his coworkers noted the windows at Everidge were still open despite rain. Id. at 16. The detectives approached the home and could hear a humming sound coming from inside the residence which, in their experienced opinions, was consistent with the sound made by ventilation systems used in marijuana grow operations. Id.
On April 18, 2012, Detective Keller observed Liu leave the Everidge garage in a silver Toyota Sienna license 6UN**** (silver Sienna). Id. EGPD detectives learned Limei Feng was the registered owner of the silver Sienna at an address on Wisconsin Street, San Francisco. Id. at 15.
EGPD detectives followed Liu to 82** Cliffcrest Way, Sacramento (Cliffcrest), where he pulled into the garage. Id. at 16. The blinds at Cliffcrest were tightly drawn and in Keller's experience, marijuana cultivators keep windows covered tightly. Id. Fetch informed Detective Keller the utilities subscriber for Cliffcrest was Shicai Wu and the power usage for the home had been over 10,000 KWH for the preceding two months. Id. Detectives later learned that Zhicai Wu owned Cliffcrest, though he had a mailing address on Pacific Avenue, San Francisco, California. Id. at 16-17.
While observing Cliffcrest, EGPD detectives saw Qinghong Li arrive in a black Lexus license 4WY**** (Lexus) and walk towards the house. Id. at 16. The Lexus was registered to Li at an address on Jackson Street, San Francisco, while her address with the DMV was on Pacific. Id. at 16-17.
Shortly after Li's arrival, Liu left Cliffcrest in the silver Sienna and returned to Everidge. Id. at 16.
On July 7, 2012, Detective Keller found a bag filled with marijuana plant leaves and stems in the trash container on the curb in front of Everidge. Id. at 17.
On September 11, 2012, Detective Keller and another EGPD detective drove to Everidge and could hear whistling, consistent with the sound made by ventilation systems used in marijuana grow operations, coming from the open front door of the house. Id. at 17-18.
On September 12, 2012, Detective Keller learned Everidge had used 10,253 KWH of power the previous month, and Cliffcrest had used 10,088 KWH. Id. at 18. Detective Keller conducted surveillance at Everidge and saw the silver Sienna arrive and park in the garage. Id. Sheetrock and interior doors were stacked inside the garage; in Detective Keller's experience, bedroom doors are removed from grow-rooms and sheetrock is used to enclose large open areas. Id.
On September 18, 2012, Detective Keller observed a blue Toyota Sienna license 6LH**** (blue Sienna) pull into the garage of Cliffcrest. Id. at 19. Shortly thereafter, Detective Keller observed defendant Shihong Chen drive the blue Sienna from Cliffcrest to 3* Caina Court, Sacramento, California (Caina) where he picked up Li. Id. Chen then drove with Li to 97** McKenna Drive (McKenna) and parked in the garage. Id. EGPD detectives observed Chen leave McKenna and take two children to a nearby elementary school. Id. Later Chen picked up two minors from a nearby high school and returned with them to McKenna. The black Lexus was parked in the garage. Id.
Fetch informed Detective Keller that Chen was the utilities subscriber for McKenna. Id. The house used just below 5,000 KWH of power the previous month, which was abnormally high. Id. at 19-20. Detective Keller found McKenna was owned by Bai Qiong Li, who had a DMV-registered address that matched Zhicai Wu's on Pacific Avenue, San Francisco. Id. at 20; ECF No. 95-1 ¶ 20. The blue Sienna was registered to Chen at McKenna's address, though his DMV-listed address was the same as Li's, Jackson Street, San Francisco, California. ECF No. 78 at 19.
On September 19, 2012, Detective Keller and another EGPD detective observed the Lexus parked in front of Cliffcrest. Id. at 20. On September 25, 2012, Detective Keller learned about Officer Barnes' February 21, 2012 traffic stop of Li and Chen in the black Lexus near Cliffcrest, the odor of marijuana in their car, Li's claim that she and Chen had medical marijuana cards, and Barnes' discovery of the electric ballasts and two grow lamps in the car. Id. The affidavit reported that Barnes did not find medical marijuana cards or marijuana in the Lexus. ECF No. 78 at 20.
On September 25, Keller saw Li leave McKenna in the Lexus, drop a minor off at a nearby high school, and return to the house. Id. Upon her return, a Toyota Rav4, license 4YX**** and registered to Peng at an address on Pacific Avenue, San Francisco, was parked out front. Id. at 20-22
Later in the evening on the 25th, EGPD detectives followed Chen in the blue Sienna from Cliffcrest to McKenna. Id. at 21. At McKenna, Li, Bao Qiong Li, Peng, and an unknown adult and unknown children entered the van. Id. Chen drove the group to a restaurant. Id.
As Chen left McKenna, other detectives followed Liu as he left Everidge in the silver Sienna. Id. Liu made several quick lane changes on the freeway, left the freeway abruptly, and made a quick U-turn, suggestive of the kind of counter-surveillance he had seen used by drug dealers. Id.
Officers eventually found Liu again and followed him to the same restaurant where Chen and the others had gone. Id. at 22. Liu and Li left the restaurant in the silver Sienna and drove to a vacant house on Belleau Wood Lane; the two walked around outside the house and then returned to the restaurant. Id. In Keller's opinion, the two were inspecting the house for possible purchase. Id.
On September 29, 2012, Detective Keller received power usage comparisons for Everidge, Cliffcrest, and McKenna. Id. Everidge's power usage averaged 9,075 KWH per month, while neighboring residences showed average monthly power usage rates of 1,347 KWH, 574 KWH, and 743 KWH. Id. Cliffcrest's power usage averaged 8,581 KWH per month, while neighboring residences averaged at 853 KWH, 509 KWH, and 503 KWH per month. Id. McKenna's power usage averaged 2,852 KWH per month, while neighboring residences averaged at 764 KWH, 447 KWH, and 866 KWH per month. Id. In Detective Keller's experience, indoor marijuana growing operations use many grow lamps, ballasts and fans, all of which use large amounts of electricity compared to neighboring houses. Id.
On October 9, 2012, Detective Keller found two small marijuana leaves in the Cliffcrest trash container. Id. During the month of October, Detective Keller periodically surveyed Everidge and Cliffcrest and observed that they maintained the outward appearance of marijuana grow houses, with blinds tightly closed and a few windows open, their screens covered with debris. Id. at 23. Also in October, officers noticed the windows of a "bonus room" above the garage at McKenna were tightly covered so that light could not enter or leave the room, consistent with marijuana growing. Id.
As noted above, on October 23, 2012, Detectives Keller and Ramos walked up to Cliffcrest's front door and while standing in the front entry area, they smelled a strong odor of marijuana and heard a humming sound consistent with the sound made by ventilation systems used for marijuana grow operations. Id. The detectives drove to Everidge and, upon walking to that house's front door, were able to hear a similar humming sound. Id. The windows of Everidge were also open despite the fact it had rained the night before. Id.
On October 25, 2012, Detective Keller learned the average monthly power usage rate for Caina was 4,979 KWH per month, up from 909 KWH the previous month. Id. Detective Keller drove to Caina and observed its window blinds were tightly closed and a small upstairs bathroom window was open. ECF No. 78 at 23.
Based on these observations, Detective Keller sought a warrant to allow the installation of GPS tracking devices on Li's Lexus and Chen's blue Sienna. Id. at 24, 27. He believed Li was driving the Lexus "to actively sell and distribute marijuana throughout Sacramento" and wanted to "locate the places where the vehicles pick up and/or deliver marijuana, proceeds from the sales of marijuana and/or items associated with the sales of marijuana." Id.
A state judge issued the warrant as requested on October 25, 2012, authorizing GPS tracking for ten days. On November 6, 2012, the judge renewed the warrant. The affidavit supporting the renewal reported the tracker had revealed the Lexus had been parked at Gwerder Court (Gwerder). Id. at 65. Detectives saw Jun Peng driving a Toyota Rav4, which officers had seen at McKenna several times, pull into the Gwerder driveway and begin unloading lumber, which Keller averred is often used to build frames for grow trays and false walls, and ducting, which is used for blower fans to ventilate grow rooms. Id. at 66. Property records showed Peng and Liandi Wu owned Gwerder. Id. The energy consumption for Gwerder in October was 21 KW, with service beginning on October 1. Id.
Officers saw Chen arrive at Gwerder in his blue Sienna and then followed Chen and Peng to a Home Depot, where they purchased plywood and 2x4's and returned with the materials to Gwerder. Id. at 67.
The GPS tracker showed the Lexus had again visited Belleau Wood, which Li and Liu had visited on September 25. Id.
b. The Motion to Suppress
i. Probable Cause
Li and Chen argue the state GPS warrant is not supported by probable cause because the only information linking the Lexus to marijuana growing is the fact it had parked for two hours at a possible grow house once in a five month period, while the evidence linking the blue Sienna to criminal activity was a mere two visits to a possible grow house. ECF No. 71 at 7. They argue neither presence is sufficient to establish probable cause for tracking the van and the car to develop evidence of marijuana sales and distribution. Id. at 9-10; ECF No. 98 at 1-2. They also argue there was no probable cause under state law because Detective Keller made no attempt to determine whether any marijuana growing operation at Cliffcrest was legal, in light of Chen's and Li's medical marijuana cards. ECF No. 71 at 8-9.
The government counters that the affidavit adequately described the "basis of the investigation, the multiple sources of information indicating the participants and the scope of the marijuana cultivation conspiracy." ECF No. 97 at 13.
As noted above, under California law, medical marijuana patients, whether or not they have a card, are "not protected for [t]he acts of selling, giving away, transporting, and growing large quantities of marijuana, [which] remain criminal.'" Chavez v. Superior Court, 123 Cal. App. 4th 104, 110 (2004) (citation omitted).
Here, the affidavit sufficiently describes the apparent use of Everidge, Cliffcrest, and McKenna for commercial-style production of marijuana: Everidge, Cliffcrest, McKenna, as well as Caina, had patterns of excessive consumption of electricity compared to the neighboring houses, with usage at McKenna and Caina jumping dramatically during the surveillance period; officers found marijuana in the trash at both Everidge and Cliffcrest; officers heard the humming sound of ventilation fans used in large marijuana-grow operations coming from Everidge and Cliffcrest and smelled marijuana at Cliffcrest; Everidge, Cliffcrest and Caina appeared to be grow houses, with blinds tightly drawn, but a window or two left open for ventilation even during the rain, and debris on some of the screens; in October, officers noticed windows of a room above the garage at McKenna were tightly covered; Chen and Peng purchased materials that could be used to convert Gwerder into a grow house; doors and sheetrock were seen in public view in Everidge's garage, suggesting rooms had been configured for marijuana production; Li and Chen had been carrying electric ballasts still warm to the touch and light hoods when Officer Barnes stopped their car, smelling strongly of marijuana, near Cliffcrest, yet they claimed they were merely visiting from San Francisco; Li and Liu visited a house for sale after Liu had been driving in a manner suggestive of counter surveillance; Chen's blue Sienna had visited Cliffcrest on three occasions and McKenna on five occasions, and he had picked up Li once from Caina; Li had visited McKenna twice, Cliffcrest once and Caina once.
The affidavit thus describes Li's and Chen's activities consistent with involvement in a marijuana growing operation involving at least two established, clandestine growing sites - Everidge and Cliffcrest, expanding to a third, and possibly fourth site - Caina and McKenna, respectively. In light of the information suggesting that Li and Chen actually lived in San Francisco, the reviewing magistrate could have reasonably deduced that the Sacramento and Elk Grove locations were not operated to provide medical marijuana for Li and Chen alone, but rather as a business. Cf. United States v. Smith, No. 2:11-cr-00428 GEB, 2012 WL 2620526, at *3 (E.D. Cal. July 5, 2012).
Chen notes the warrant was authorized to gather evidence about the distribution of marijuana, yet nothing in the affidavit points to any distribution or sales activity. ECF No. 98 at 1-2. The issuing magistrate, however, taking a common sense view of the affidavit, could have concluded that the purpose of a clandestine marijuana growing operation, using several locations for production of marijuana, was the ultimate distribution of a large amount of the product.
The totality of the circumstances described in the affidavit allowed the magistrate to reasonably conclude there was a fair probability evidence of marijuana distribution might be found by tracking the Lexus and the blue Sienna.
ii. Franks Hearing
Li argues the affidavit provided electrical consumption figures for Everidge, Cliffcrest, McKenna and Caina without including the square footage of these houses along with the square footage of the neighboring homes used for the comparison electrical figures. ECF No. 71 at 11. She argues that in this way, "by reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw." Id. She seeks a Franks hearing to explore whether the omission of this information constitutes omission of a material fact.
As noted, a defendant seeking a hearing must make an offer of proof, a substantial preliminary showing that material information was omitted. Li has not provided information about the sizes of the houses on Everidge, Cliffcrest, McKenna, and Caina, all of which she had access to. She has not even attempted to meet the first prong of the Franks showing. Li is not entitled to a Franks hearing.
Chen argues he also is entitled to a Franks hearing because Keller deliberately omitted the fact that Barnes had seen at least Li's medical marijuana card during the search of the Lexus. However, as discussed above, even if the issuing magistrate had been informed Barnes had found Li's medical marijuana card, this information would not have changed the probable cause calculus: the affidavit described a large-scale marijuana growing operation, outside the protections of the CUA and MMPA. Chen is not entitled to a Franks hearing.
2. The Federal GPS Warrant
a. The Affidavit
The federal GPS warrant affidavit repeats much of the information developed by EGPD, stated in slightly different terms, and incorporates information secured through EGPD's monitoring of the GPS units attached to the Lexus and the blue Sienna as well as further surveillance.
The GPS tracker for the Lexus was installed on October 26, 2012, while it was at McKenna, and after several days of observation, EGPD detectives learned the vehicle had been parked in front of a residence at 81** Gwerder Court ("Gwerder"). ECF Nos. 80-1 at ¶¶ 17-18. EGPD detectives went to Gwerder and observed the Lexus parked outside. Id. Shortly thereafter, Peng and Chen, driving the Toyota Rav4 previously observed at McKenna, pulled into the Gwerder's driveway ECF No. 80-1 ¶ 19. The men unloaded lumber and large ducting into the garage. Id. The affiant, Special Agent Swenson, said that based on his experience, marijuana cultivators will use lumber to frame supports for grow trays and the ducting as part of the ventilation system. ECF No. 80-1 ¶ 19. Id.
On November 2, 2012, EGPD detectives observed Chen drive from McKenna to Gwerder in the blue Sienna. ECF Nos. 80-1 at ¶ 20. While Chen was inside the house, detectives installed the GPS tracker onto the blue Sienna. ECF No. 80-1 ¶ 20. Chen and Peng left Gwerder in the blue Sienna, went to Home Depot, purchased lumber, returned to Gwerder and unloaded the lumber into the house. ECF No. 80-1 ¶ 20.
Between November 2 and November 4, 2012, EGPD detectives monitored the GPS trackers and observed the Lexus and blue Sienna "frequenting" Cliffcrest and McKenna. ECF No. 80-1 ¶ 21. The state GPS warrant expired on November 4, but was renewed on November 6, 2012 by Judge Sapunor of the Sacramento County Superior Court. ECF No. 80-1 ¶ 23. On November 6, the blue Sienna's GPS tracker indicated the van was in a warehouse district in Sacramento. ECF No. 80-1 ¶ 23. By the time investigators reached the area, the van was gone, but one business in the area was "Hydro World," a hydroponics business. ECF No. 80-1 ¶ 23. Swenson observed that in his experience, marijuana growers often purchase hydroponics equipment, such as ballasts, light hoods, fans and carbon filters. ECF No. 80-1 ¶ 23.
Investigators tracked Chen and Peng to Cliffcrest and from there to McKenna. ECF No. 80-1 ¶ 23.
On November 16, 2012, Swenson applied for a warrant to install GPS tracking units on the Lexus and the silver and blue Siennas, opining the vehicles "will be used to facilitate the transportation and distribution of marijuana" and that tracking the vehicles would allow agents to identify others involved in the marijuana cultivation operation. ECF No. 80-1 ¶¶ 25, 26. A federal magistrate judge signed the warrant on November 16, 2012. ECF No. 80-1 at 14.
b. Li's Motion to Suppress
i. Probable Cause
Li again argues the warrant is not supported by probable cause because it shows only that the Lexus and the blue Sienna visited Cliffcrest, a possible grow house on a few occasions, and that the figures about electricity use at McKenna by themselves do not establish probable cause or, at most, show that one room was being used by medical marijuana patients growing their own supply. ECF No. 80 at 6, 8.
As noted in connection with the state GPS warrant, the affidavit shows more than a few visits to a grow house. Instead, it suggest Li and Chen were part of a group involved in growing marijuana at several houses outfitted for large-scale cultivation.
It is true McKenna did not have the same signs it was being used as a grow house, but the affidavit did include information that its consumption of electricity was high compared to its neighboring houses. Relying on United States v. Clark, Li argues this is insufficient. 31 F.3d 831 (9th Cir. 1994). In Clark, however, the Ninth Circuit found an affidavit wanting when it said only that the electrical consumption was unusually high without providing any information about the average residential electrical consumption of houses generally in rural Alaska. Id. at 835. The affidavit in this case does not simply say McKenna's electricity consumption was high, but provides comparisons with three neighboring house supporting the conclusion. ECF No. 80-1 ¶ 13. Li's attack on this portion of the affidavit is not availing.
ii. Franks Hearing
As she did in connection with the state GPS warrant, Li argues the federal affidavit omitted information about the houses used for comparison of electrical usage. In this motion, she chides the affiants for not consulting Zillow for information about the square footage of neighboring houses. As before, however, it is Li's burden; she too could have found information on Zillow and presented it had she believed it was exculpatory. ECF No. 80 at 9.
Li also argues this affidavit omits evidence that Cliffcrest was owned by Zhicai Wu, who had listed the same address in San Francisco as Li did. She argues this is exculpatory because it suggests a familial relationship rather than a drug distribution connection. Id. Even if there was a familial connection, it does not rule out a drug connection as well.
Li argues the federal affidavit excluded information suggesting that Chen probably lived at McKenna with several children. ECF No. 80 at 9-10. She notes the state GPS affidavit describes officers' observations of Chen travelling to and from schools with several children. See ECF No. 78-1 at 19, 20. She also presents the declaration of Juan Doig, an investigator with the Federal Public Defender's Office, who analyzed the state GPS data. Doig reports that during the time the state tracker was in operation, the blue Sienna did not visit schools, but the Lexus went to Laguna Creek High School on five occasions and to Arlene Elementary School twice. Decl. of Juan Doig, ECF No. 88 ¶¶ 10, 13. Li argues this pattern of visits is relevant because it shows she and Chen did not visit McKenna solely in connection with illegal activity. However, even if this information is included in the warrant, it does not undercut probable cause: the description of Li's and Chen's involvement not only with McKenna, but also their connections to Cliffcrest, Caina and Gwerder, as well as their connection with Liu adequately support a finding of probable cause. That they may have taken children, their own or a relative's, to school does not absolve them of their involvement with Liu, their visits to Cliffcrest and Caina, and the high energy usage at McKenna.
Li notes Special Agent Swenson's affidavit erroneously states the period of authorization granted for the state GPS warrant. See ECF No. 80-1 ¶ 21 (stating EGPD detectives monitored the Lexus and blue Sienna from September 26, 2012 to November 4, 2012). Li argues this error was made recklessly, and that it in conjunction with the affidavits use of "frequenting," "grossly exaggerated the number of visits to [Cliffcrest]" the blue Sienna and Lexus made. ECF No. 80 at 10.
Though the affidavit is certainly incorrect in stating that EGPD detectives monitored the movements of the vehicles through the GPS beginning on September 26, 2012, rather than on October 25, 2012, Li has not demonstrated this error rises to the level of a false statement made intentionally or with reckless disregard for the truth. Special Agent Swenson's affidavit provides a chronological overview of the investigation undertaken by the EGPD and DEA. As such, the affidavit makes it clear in context, in the paragraphs immediately preceding the erroneous date, that EGPD officials did not monitor the cars beginning on September 26, 2012. See ECF No. 80-1 ¶¶ 17-20 (California GPS warrant authorized on October 25, 2012, and EGPD detectives installed Lexus tracker on October 26, 2012 and the blue Sienna's on November 2, 2012). Given the clarity on the investigation's sequence of events the affidavit otherwise supplies, Li has shown only that the use of the erroneous date might be negligent, but not an intentional or reckless false statement.
Finally Li argues Agent Swenson recklessly said that the Lexus and the blue Sienna "frequented" Cliffcrest during the time the state GPS trackers were in place, given the brief time the vehicles were monitored. Doig avers that during the time of the state monitoring, the Lexus visited Cliffcrest four times, but the Sienna did not. While the use of "frequenting" is an unfortunate overstatement, neither it nor the addition of information about the actual number of visits changes the ultimate finding of probable cause, based as it is on the observed visits as well as the nature of the places visited. Li has not met her burden and a Franks hearing is not required.
c. Liu's Motion to Suppress
Liu argues the federal affidavit did not establish probable cause to believe tracking his car would lead to evidence of drug distribution. First, he notes the legality of medical marijuana in California, but this leads nowhere as growing and possessing marijuana is not legal under federal law. Gonzales v. Raich, 545 U.S. 1 (2005). Even if state law controlled, Liu has pointed to nothing suggesting he was a medical marijuana patient at the relevant time. ECF No. 82 at 4, 6.
Next, he echoes Li that high electricity consumption does not establish probable cause. As noted, however, the affidavit provides comparisons with neighboring houses. ECF No. 80-1 ¶ 13. Liu also argues the affidavit does not include information about the size and location of the houses used for comparison, but as the affidavit described them as neighboring; in light of the homogeneous nature of most American neighborhoods, the magistrate judge could reasonably have inferred the houses used for comparison were sufficiently similar to make the comparison meaningful.
Additionally, Liu argues that officers neither saw a single plant nor inspected Liu's bank records for information about unusual transactions. ECF No. 82 at 6. However, Keller and Swenson both said Everidge appeared to be a marijuana grow house, based on the tightly closed blinds, the window that remained opened despite the weather, the debris on the screen, the sound of humming or whistling consistent with ventilation, and the marijuana leaves and stems in the trash. ECF No. 80-1 ¶¶ 2, 4, 7. Moreover, as noted above, officers observed Liu engage in countersurveillance as he left Everidge to meet Li before examining another house. ECF No. 80-1. Liu has cited no authority providing that probable cause depends on observations of actual growing plants or evidence of drug profits. Considering the totality of the circumstances, the issuing magistrate judge could have concluded there was a fair probability evidence would be disclosed by tracking Liu's car.
3. The Federal Search Warrants
a. The Affidavit
Once again, the federal search warrant affidavit incorporated much of the information from the state and federal GPS warrant applications. It includes the following additional information:
On November 6, 2012, agents tracked the blue Sienna from the area around Hydro World to an address on 45th Avenue (45th) and saw Chen and Peng leave the van. ECF No. 95-1 ¶ 35. Also on that day, investigators observed a Mercury Mystique registered to an individual named Toan Gia Van of Vallejo, California, outside Caina. Id.
On November 7, 2012, investigators learned that the property owner and utilities subscriber for 45th was Xiu Zhen Chen. Id. ¶ 36. Investigators also learned Toan Gia Van was the utilities subscriber for a house at 69** Pradera Mesa Drive ("Pradera Mesa"), which had a "very high" monthly power usage rate of 3,160 KWH. Id.
Investigators surveyed Pradera Mesa and saw the Mystique pull into the house's garage of that house. Id. ¶ 37.
On November 15, 2012, investigators observed Van and a passenger leave Pradera Mesa in a Nissan van registered to Toan Gia Van. Id. ¶ 38. The two drove to Caina and stayed in the house for fifteen minutes, and then drove to HydroWorld, where they bought some things and returned with their purchases to Caina. Id. Van then returned to Pradera Mesa. Id.
Additionally, investigators observed Chen and Li arrive at 45th in the blue Sienna, where they met with Xiu Chen and others. Id. ¶ 39. When Chen and Li left 45th, they went to the house on Belleau Wood that Li and Liu had inspected on September 25, 2012. Id. After speaking with an Asian male there, the two drove to Cliffcrest and parked in the garage. Id. When Li and Chen left Cliffcrest they went to McKenna just about the time Peng and Liandi Wu arrived in the Rav4. Everybody went inside. Id.
On November 16, 2012, Liu left Everidge in the silver Sienna and drove to Sacramento 420, a medical marijuana business. Id. ¶ 40. Liu entered the business, but left shortly thereafter. Id.
On December 4, 2012, investigators drove by Caina and found approximately 166 marijuana root balls and some loose marijuana leaves in a bag in its trash container at the curb. Id. ¶ 41.
On December 5, 2012, federal investigators installed a GPS tracking device on the silver Sienna after the magistrate judge signed the GPS warrant, as recounted above. Id. ¶ 43.
On December 10, 2012, investigators walked up McKenna's driveway and could smell a strong odor of marijuana and hear a humming sound consistent with the noise produced by ventilation systems used for marijuana grow operations. Id. ¶ 45.
On December 15, 2012, Ling Feng left Pradera Mesa in the Nissan van and drove to Caina, where she stayed for about an hour. Id. ¶ 47.
On January 8, 2013, investigators found large amounts of wet marijuana leaves in the trash containers from Caina and Pradera Mesa. Id. ¶ 48.
On January 8, 2013, investigators heard the humming sound consistent with ventilation systems from both Everidge and Cliffcrest and noticed that both houses had small video surveillance cameras affixed to them. Id. ¶ 49.
On January 16, 2013, investigators received the following information about power consumption from SMUD: Everidge's power usage averaged 10,758 KWH per month, and the home had a last month power usage of 13,219 KWH. Id. ¶ 51. Three neighboring residences showed monthly average power usages of 617 KWH, 555 KWH, 756 KWH. Id. Cliffcrest's power usage averaged 10,348 KWH per month and the house had used 11,855 KWH the previous month. Id. ¶ 52. Three neighboring residences showed monthly average power usages of 842 KWH, 532 KWH, and 511 KWH. Id. McKenna's power usage averaged 4,541 KWH per month and the house had used 6,528 KWH the previous month. Id. ¶ 53. Three neighboring residences showed monthly average power usages of 739 KWH, 460 KWH, and 840 KWH. Id. Gwerder's power usage averaged 2,965 KWH per month and the house had used 5,827 KWH the previous month. Id. ¶ 54. Three neighboring residences showed monthly average power usages of 444 KWH, 834 KWH, and 464 KWH. Id. The power usage at 45th averaged 5,596 KWH per month and was 6,842 KWH the previous month; three neighboring houses had monthly averages of 733 KWH, 1,060 KWH and 26 KWH. Id. ¶ 55. The power usage for Pradera Mesa averaged 3,654 KWH per month, with 4,664 KWH used the previous month, while three neighboring residences had monthly power usages of 948 KWH, 1,087 KWH and 795 KWH a month. Id. ¶ 56. Caina's power usage averaged 7,154 KWH per month and the house had used 9,968 KWH the previous month. Id. ¶ 57. Three neighboring residences showed monthly average power usages of 948 KWH, 1,087 KWH, and 795 KWH per month. Id.
Based on these observations, Special Agent Swenson prepared the federal search warrant application for a search of Everidge, Cliffcrest, McKenna, Gwerder, 45th, and Pradera Mesa which was approved by a different federal magistrate judge on January 29, 2013. ECF No. 95-1.
On January 30, 2012, investigators executed the federal search warrants. ECF No. 1 ¶ 4. At Everidge, investigators found a marijuana grow which "encompass[ed] the majority of the residence" and seized 867 marijuana plants and approximately 50 pounds of processed marijuana." Id. ¶ 12. At Cliffcrest law enforcement found a marijuana grow "encompassing four rooms in the residence," and seized 417 marijuana plants and two pounds of marijuana. Id. ¶ 13. Investigators found a marijuana grow in McKenna's garage and seized 152 growing marijuana plants and 390 marijuana clone plants, among other thing. Id. ¶ 14. At Caina officers found a grow that took up "the entire residence" and seized 600 marijuana plants and a half-pound of processed marijuana, among other things. Id. ¶ 15. Investigators found another grow operation at Gwerder and seized 251 marijuana plants. Id. ¶ 16. The search of 45th also uncovered a grow operation and law enforcement secured 282 marijuana plants "growing inside the various rooms of the house," as well as fifteen pounds of processed marijuana and other items connected to the grow. Id. ¶ 17. At Pradera Mesa, investigators discovered a marijuana grow and seized 343 marijuana plants and approximately ten pounds of processed marijuana. Id. ¶ 18.
b. Li's Motion to Suppress
i. Probable Cause
The affidavit says that agents believe McKenna "likely contains a marijuana grow" based on the smell of marijuana, the sound of the fan, the high electrical consumption, and the visits by Li, Chen and Peng. ECF No. 95-1 ¶ 61.
Li argues there is no probable cause for McKenna because the warrant does not clearly tie any of her contacts with other potential marijuana grows to the McKenna address. She suggests the affidavit shows she and Chen lived at McKenna with several children and only visited Cliffcrest, where the power consumption suggested a marijuana growing operation. She says the fact that she had growing equipment in her car in February 2012 does not add to the probable cause because Chen was not the power subscriber at McKenna until four months later. She argues her one contact with Liu shows nothing about growing marijuana at McKenna. Finally she argues that the odor of marijuana in December 2012 does not suggest marijuana would still be present in January 2013, particularly in light of her status as a medical marijuana user.
She argues that "evidence that a medical marijuana user smoked marijuana on the property once 50 days before the search is so distant that it is irrelevant to probable cause." ECF No. 95 at 5. She presents no evidence, however, that she had been smoking marijuana at McKenna.
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The government counters that the warrant authorized not only a search for growing marijuana, but also for currency, "narcotics or money ledgers, narcotics distribution or customer lists, . . . pay and owe sheets, records and other documents noting the price, quantity, date and/or times when narcotics were purchased"; "items evidencing the obtaining, transfer, and/or concealment of assets"; "items reflecting names, addresses, telephone numbers, communications, and illegal activities of associates in narcotic trafficking activities . . . ." ECF No. 95-11 at 39-40; ECF No. 97 at 12.
As noted in connection with Li's motions to suppress the state and federal GPS warrants, the affidavit in this case showed that she and Chen were involved with Liu, Peng and others, all of whom had connections to houses with high power usage and some with the appearance, sound, and smell of marijuana growing operations. Officers found growing equipment in her car, which smelled strongly of marijuana, and after Chen became the utilities subscriber at McKenna in June 2012, the use of electricity climbed, suggesting Chen, Li, and others had begun to use McKenna as another grow site. See, e.g., ECF No. 95-1 ¶ 19 ("[T]he billing customer for ... McKenna Drive was Shihong Chen with service start date of Jun [sic] 1, 2012, and a last month power usage of close to 5000 KWH which was very high"). Moreover, "[t]he mere lapse of substantial amounts of time is not controlling in a question of staleness." United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988). Marijuana cultivation "is a long-term crime", id., and the magistrate judge could have concluded those involved would have maintained records and equipment and continued growing plants over the span of several months. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir. 1989) (in cases involving "a widespread, firmly entrenched, and ongoing narcotics operation . . . staleness arguments lose much of their force"). In this case, Li's involvement with Liu and others, her visits to other grow houses, the high power consumption at McKenna up to the issuance of the warrant and the smell of marijuana issuing from McKenna support the magistrate judge's determination there was probable cause to search McKenna.
ii. Franks Hearing
Li claims that McKenna is a five bedroom house with a swimming pool, a fact omitted from the affidavit but one that could explain the consistently high energy usage. She also argues that agents failed to include information on the size of neighboring houses, the information suggesting the potential familial relationship between Zhicai Wu and Li, and material suggesting that Chen probably lived at McKenna with several young children.
As noted above, Li simply asserts, but presents no evidence, that McKenna is a large house with a pool and presents no evidence about the size of neighboring properties, even though it is her burden to do so. Moreover, as explained above, none of this other information would have vitiated the showing of probable cause, based on the totality of Li's and Chen's observable involvement with the multi-location growing operation.
c. Peng's Motion to Suppress
i. Probable Cause
Peng argues investigators merely assumed he grew marijuana because he was friends with people who were connected to houses that appeared to be marijuana cultivation sites and visited those home and visited those homes himself on occasion. ECF No. 96 at 3. He contends apart from his association with potential growers, there is little to suggest that his house at Gwerder court was also a grow site. Id. at 4. He says the only facts tied to Gwerder are these: on October 31, 2012, he carried some lumber into the house and there was some ducting in his garage; in October, the power usage appeared normal at 216 KWH; in November 2, 2012, he unloaded some more lumber and some plywood into the house; in February 2013, the power consumption for Gwerder was 5,872 KWH, but three neighboring houses used only of 444 KWH, 834 KWH, and 464 KWH per month. He emphasizes there was no marijuana found in his trash and no sounds, smell or appearance indicative of cultivation. He also argues the information about the lumber was stale, as those observations were made three months before the warrant was executed, and the power consumption data is meaningless without a more detailed comparison. ECF No. 96 at 6-7.
Although the probable cause showing for Gwerder is less robust than it is for McKenna, the totality of the circumstances still support the magistrate judge's probable cause determination. First, the power consumption information was not meaningless; as noted, in Clark, the Ninth Circuit said that an affidavit saying only that power usage was high was insufficient without comparisons with other houses, information provided in this case. 31 F.3d at 835. Second, the observations about the lumber are not stale: in Swenson's opinion, Peng and Chen purchased lumber typically used to convert a single-family home into a growing operation, see ECF No. 95-1 ¶ 31, "improvements" that would typically remain in place throughout the property's use as a cultivation site. See Hernandez-Escarsega, 886 F.2d at 1566. Third, the affidavit described Peng's contacts with Chen and their visits to Caina and McKenna, other grow sites for which probably cause was established.
The Ninth Circuit has said:
In order to find probable cause based on association with persons engaging in criminal activity, some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown. One important consideration in assessing the significance of the association is whether the known criminal activity was contemporaneous with the association. Another is whether the nature of the criminal activity is such that it could not normally be carried on without the knowledge of all persons present.United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984) (internal citations omitted). Here Peng was associating with Chen and others during the time the group was engaged in activity consistent with growing marijuana in various houses in the greater Sacramento area, and he was visiting several of the houses, such as Caina, where investigators had found marijuana in the trash. These factors go beyond showing mere association and bolster the showing of probable cause established by the energy use and the construction activity at Gwerder. The warrant was adequately supported.
ii. Franks Hearing
Peng requests a Franks hearing regarding an alleged material omission of fact from Special Agent Swenson's affidavit supporting the federal search warrant. ECF No. 96 at 8-9. Peng notes the affidavit failed to include the specific addresses of the homes against which Gwerder's monthly power usage was compared, and that therefore "[t]he comparisons are useless and, arguably, misleading." Id. at 9. However, Peng has presented nothing suggesting Gwerder was a mansion in a neighborhood of bungalows and so has not borne his initial burden of demonstrating that any omission tended to mislead. II. THE MOTION TO DISMISS
The defendants have filed a joint motion to dismiss the indictment on the grounds that the inclusion of cannabis in Schedule I is an arbitrary classification. They also argue the government's prosecution policy relating to marijuana violates the doctrine of Equal Sovereignty. As they have presented no evidence in support of their arbitrary classification claim and no copy of the government's prosecution policy, they have not supported their motion in a manner that requires the court to reach the merits of their argument.
IT IS HEREBY ORDERED that:
1. Li's motion to suppress evidence from the state GPS warrant, ECF No. 71, is denied;DATED: January 6, 2015.
2. Li's motion to suppress evidence from the vehicle stop, ECF No. 79, is denied;
3. Li's motion to suppress evidence from the federal GPS warrant, ECF No. 80, is denied;
4. Liu's motion to suppress evidence from the federal GPS warrant, ECF No. 82, is denied;
5. The joint motion to dismiss, ECF No. 87, is denied;
6. Li's motion to suppress evidence of the sniff searches, ECF No. 94, is denied;
7. Li's motion to suppress evidence from the federal search warrant, ECF No. 95, is denied; and
8. Peng's motion to suppress evidence from the federal search warrant, ECF No. 96, is denied.
/s/_________
UNITED STATES DISTRICT JUDGE