Opinion
Case No. 1:03-CR-152 TC.
July 13, 2004
ORDER
Defendants Jolene Higareda and Santos Amaro Higareda have been indicted on charges of conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute. The charges arise, in part, from a search of two residences conducted pursuant to a warrant. The Higaredas have moved to suppress evidence found during the search of one of the residences. They argue that the affidavit filed in support of that search was not supported by probable cause. In addition, Santos Higareda seeks to suppress evidence of statements she allegedly made during the search, claiming that they were made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). She also contends that her statements were not made knowingly and voluntarily. For the reasons discussed below, the court DENIES the Motions to Suppress.
Jolene Higareda has withdrawn her motion to suppress statements except for her contention that the statements were the result of an illegal search of the residence.
FINDINGS OF FACT
The parties agree on most, but not all, of the facts.
On that day, November 25, law enforcement officers, including members of the Weber-Morgan Narcotics Strike Force ("Strike Force") carried out searches of both residences. Both searches were authorized by warrant. Defendants are challenging only the search of 346.
The Affidavit in Support of the Warrant
Aaron Johnson, an agent with the Strike Force, was the affiant on the affidavit in support of the search warrant for 346. In the affidavit, Agent Johnson stated that a confidential informant, referred to as "CI #1" in the affidavit, told him that "one family [the Higaredas] owned both homes [346 and 348]." (Aff. for Search Warrant (Gov't Ex. 1).) According to CI#1, "the family was involved in the distribution of large quantities of narcotics in the Weber County area." Agent Johnson, on some earlier unspecified date, searched (by consent) 346 and found no drugs.
Agent Johnson stated that during a lengthy investigation of a drug-trafficking group, "the Ramirez Organization," Angela Higareda, known as "Abuela" or "Grandmother," "was heavily involved in the distribution of narcotics." According to Glenda LNU ("Last Name Unknown"), Abuela lived at 346.
Agent Johnson watched both residences but recounted evidence that established only that, in his experience and training, 348 was being used as "a stash house." He gave no information about what he saw at 346.
Agent Johnson and another law enforcement officer used a device called an ion scanner to test the nature of residue left on the doorknobs of 346 and 348. According to Agent Johnson, the test showed the presence of marijuana on the doorknob of 348. Apparently, the test of the 346 doorknob did not show the presence of any controlled substances.
Agent Johnson stated in the affidavit that, based on the above information, on November 21, 2003, he obtained a search warrant for 348. He admitted that, at that time, he "did not believe there was sufficient evidence to obtain a search warrant for 346 28th Street." (Aff. at 4.) In his affidavit, Agent Johnson gave no information about what, if anything, was found during the search of 348.
Agent Johnson also recounted the details of a controlled purchase of methamphetamine that took place on November 24, 2003. The purchase was made by a confidential informant, CI#3. Agent Johnson described the seller of the methamphetamine as Mike LNU. During a telephone conversation between CI#3 and Mike LNU, Mike LNU said that he would have to get the methamphetamine "from 28th Street." After the controlled purchase was completed, officers watched a person matching the description of Mike LNU drive to 346. He was also seen inside 346.
On November 25, 2003, search warrants for 346 and 348 were issued. The searches occurred that same day.
The Search
When the officers knocked at the door of 346, Santos Higareda answered. The officers told her that they had a search warrant to search the residence. After Santos Higareda admitted the officers into the house, they conducted a brief search of the residence (described by Agent Johnson as a "sweep"). Agent Johnson could not recall for sure whether Santos Higareda was handcuffed at this point. (It is clear that if either Santos or Jolene Higareda was handcuffed, the handcuffs were quickly removed.)
Agent Johnson went into the kitchen/dining area where both Defendants were seated. He advised them of their rights pursuant to Miranda. He spoke to them in English, and they appeared to fully understand what he said. (At the hearing, neither Defendant requested the assistance of an interpreter.) Agent Johnson admitted at the hearing that, at that point, although not in handcuffs, the Defendants were "detained." (Transcript of April 14, 2004 Hearing ("Tr.") at 12.)
Shortly thereafter, another agent with the Strike Force, Ryan Read, advised Jolene and Santos Higareda of their Miranda rights. (Apr. 14, 2004 Evidentiary Hearing Transcript at 57.)
Agent Johnson left 346 to take part in the search of 348. After approximately forty-five minutes to an hour, he returned to 346 and continued the search. While at 346, Agent Johnson "had limited conversations" with Santos Higareda. (Id. at 14.) He and Santos Higareda went upstairs together where Santos Higareda searched for a key (at Agent Johnson's request) to open a bank bag discovered in the search.
Later, Special Agent John Barrett of the F.B.I. came to 346. One of the other officers told him, while he was on the second floor of 346, that "Santos was asking to speak to the Fed." (Id. at 71.) The officer told Special Agent Barrett that Santos Higareda wanted to speak to him in private. Special Agent Barrett went downstairs in 346 where he and Santos Higareda spoke. Special Agent Barrett did not repeat the Miranda warnings to Santos Higareda because he had been told that she had already been given them. During the conversation, Santos Higareda was "lucid" and "relatively calm considering the situation." (Id. at 89.) She understood Special Agent Barrett's questions "perfectly." (Id.) Special Agent Barrett noticed that "[s]he was-she moved quite a bit with her hands during our conversation. She crossed herself several times and kissed her hand after she said certain things to me." (Id.)
CONCLUSIONS OF LAW
Probable Cause to Search 346
Defendants contends that the affidavit in support of the warrant did not establish probable cause. In assessing probable cause, an affidavit must be viewed under the "totality of circumstances" test adopted by the United States Supreme Court inIllinois v. Gates, 462 U.S. 213 (1983). Specifically, a court must determine whether the issuing court made "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. The court must determine whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a substantial basis for concluding that probable cause existed. Id. at 238-39. The magistrate judge's decision to issue a warrant is entitled to great deference. Id. at 236; United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997). Specifically, a reviewing court "should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).
Because probable cause requires that the affiant articulate a factual nexus between the suspected criminal activity and the place to be searched, see United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000), the court finds that the affidavit in support of the Search Warrant authorizing a search of 346 was not supported by probable cause. The information in the affidavit concerns 348, not 346. In fact, the affiant Agent Johnson admits in the affidavit that he did not believe that there was sufficient evidence to obtain a search warrant for 346 until the controlled purchase occurred on November 23, 2003. But examination of the information from that transaction shows that it adds little to the previous information.
The seller of the methamphetamine on November 23, 2003, Mike LNU, told the buyer, CI#3, that he would get the methamphetamine from "28th Street." While this statement certainly raises an inference that Mike LNU is talking about one of the Higareda residences, 346 or 348, it does not pinpoint which one. Following the drug transaction, which took place in a public parking lot, officers followed someone matching the appearance of Mike LNU to 346. This evidence, even when coupled with the other information in the affidavit, simply does not establish probable cause for a search of 346. The Good Faith Exception
Because the court has concluded that the information in the affidavit did not establish probable cause, it does not reach the question of the legality of the use of the ion scanner on the doorknobs of 346 and 348.
Even though the affidavit did not establish probable cause, the court concludes that the evidence found in the search should not be suppressed. The good faith exception to the warrant requirement, as articulated in United States v. Leon, 468 U.S. 897 (1984), requires that evidence not be suppressed when the officer conducting the search "act[s] in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." Leon, 468 U.S. at 900, 920-21. The Supreme Court has stated that "[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."Id. at 919 (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).
In assessing the good faith exception, a court's inquiry "is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989) (quotingLeon, 468 U.S. at 922 n. 23). The court considers "all of the circumstances" when making this determination. Leon, 468 U.S. at 922 n. 23. The government "bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable." United States v. Cook, 854 F.2d 371, 373 (10th Cir. 1988) (quoting United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986)). Still, "[t]he first notion to be remembered in considering the good faith principle is the presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith." United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985).
The Supreme Court has identified four situations in which the good faith exception to the exclusionary rule does not apply.See Leon, 468 U.S. at 922-23. The Tenth Circuit has articulated these four situations as follows:
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known to be false if not for his "reckless disregard of the truth." . . . Second, the exception does not apply when the "issuing magistrate wholly abandon[s her] judicial role." . . . Third, the good-faith exception does not apply when the affidavit in support of the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." . . . Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.Danhauer, 229 F.3d at 1007 (quoting Leon). In this case, Defendants contend that the good faith exception in Leon does not apply because the affidavit was so lacking in probable cause that belief in the existence of probable cause would be entirely unreasonable (the third situation listed above). But in light of precedent in the Tenth Circuit and elsewhere, the information in Agent Johnson's affidavit supports application of the Leon good faith exception. See, e.g., Leon, 468 U.S. at 918 ("[S]uppression of evidence obtained pursuant to a warrant should be ordered . . . only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.") (emphasis added); United States v. Hopkins, 128 F. Supp.2d 1, 9-10 (D.D.C. 2000) (applying good faith exception and stating that "the officers made an assumption . . . that one who has a past of carrying guns, and has just recently carried a gun near his home is likely to have gun paraphernalia in his home. . . . [T]his is not enough to establish probable cause. But it is enough to show that the officers were acting in good faith. Their conclusion was not illogical, just weakly supported."); see also Danhauer, 229 F.3d at 1007 ("the absence of information establishing the informant's reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued").
Here, the evidence as discussed above, although not sufficient evidence to establish probable cause, did show that there was a possible link between 346 and narcotics trafficking. Considering all of the circumstances, the court cannot say that the affidavit was so lacking in indicia of probable cause that the officer did not reasonably rely on it, particularly when it was approved by a neutral magistrate. See, e.g., Leon, 468 U.S. at 921 ("an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient").
The Voluntariness of Santos Higareda's Statements
The United States bears the burden of proving by a preponderance of the evidence that a defendant's waiver of rights was voluntary. Colorado v. Connelly, 479 U.S. 157, 168 (1986). A defendant's waiver of Fifth Amendment rights can be effective only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986). In determining whether a confession was voluntary, a court must review the totality of all the surrounding circumstances, including the characteristics of the accused and the tactics of the police. United States v. Toro-Pelaez, 107 F.3d 819, 825-26 (10th Cir. 1997) (relying on following factors: age, intelligence and education of defendant; length and nature of questioning; whether Miranda warning was given; and whether physical punishment was involved).
Essentially, Santos Higareda points to the following facts in support of her contention that her statements were not voluntarily made. First, although she acknowledges that she was twice advised of her rights under Miranda, she maintains that because of the length of time that had elapsed, Special Agent Barrett should have repeated the warnings before he spoke to her. Second, she contends that, in addition to the usual advice dictated by Miranda, she should have been told that she had the right to end questioning. Finally, she contends that because of her age, lack of sophistication, and some kind of physical or mental impairment, her waiver of Fifth Amendment rights was neither knowing nor voluntarily. None of her arguments is persuasive.
Ms. Higareda acknowledges that the case law does not support her contention that the delay between the Miranda warnings and the time she made her statements rendered the warnings ineffective. The Tenth Circuit has noted that "[n]umerous courts have rejected the argument that the passage of time alone invalidates previously given Miranda warnings." Mitchell v. Gibson, 262 F.3d 1036, 1057 (10th Cir. 2001). Here it is notable that officers twice gave Ms. Higareda her Miranda warnings. And although it is unclear exactly how much time had elapsed between the second advice and the time Ms. Higareda spoke to Special Agent Barrett, it appears that at most a few hours had passed.
Despite Ms. Higareda's contention that she was somehow impaired, there is nothing in the record that supports such a conclusion. In fact, Special Agent Barrett, who was a very credible witness, testified that Ms. Higareda was "lucid" and she understood his questions "perfectly." (Tr. at 89.) Officer Nathan Cline, who took part in the search, described both Higaredas as "[c]alm, collective [sic], understanding of what I was saying at least." (Tr. at 50.) A review of the entire record makes clear that Santos Higareda, who apparently was cooking when the officers arrived, was completely aware of what was occurring, and her answers to the various questions were rational and appropriate.
Special Agent Barrett testified that while he was speaking with her, Ms. Higareda "moved quite a bit with her hands during our conversation. She crossed herself several times and kissed her hand after she said certain things to me." (Id. at 89.) Ms. Higareda contends that this is evidence of irrational behavior. However, when viewed in context, this behavior does not warrant such a conclusion. Special Agent Barrett testified that while he spoke with Ms. Higareda, she was "[r]elatively calm considering the situation." (Id.) The fact that Ms. Higareda crossed herself, while it might indicate that she was under stress and upset because her home was being searched, does not warrant a conclusion that she somehow was not in control of her faculties.
There is nothing in the record that indicates that the officers acted in a threatening, overbearing manner. Although Ms. Higareda might have been briefly handcuffed when the officers entered 346 (and this is not certain), she was not handcuffed during the search and when she made her various statements. She moved about the kitchen area freely ("During the search she was not handcuffed because she was walking around putting things away and moving around freely almost. . . ." (Tr. at 44)) and from time to time, with officers, went to other rooms in the house. Officer Cline testified that when the Defendants asked him to close the curtains of a window because the sun was shining in their eyes, he did. (Tr. at 49-50.)
Based on the totality of the circumstances, the court concludes that Santos Higareda knowingly and voluntarily made the statements she now seeks to suppress.
ORDER
For the foregoing reasons, the Defendants' Motions to Suppress are DENIED.