Opinion
Case No. 03-40134-01-RDR
March 8, 2004
MEMORANDUM AND ORDER
Defendant Roberto Trujillo is charged with possession of a sawed-off shotgun. This charge arises from the execution of a search warrant at defendant's residence. The warrant was issued by a state court judge. This case is now before the court upon defendant's motion to suppress the evidence from the execution of that search warrant. In the motion to suppress, defendant asserts that the search warrant was not supported by probable cause and that the execution of the warrant was unconstitutional because there was no notice given prior to the entry of the residence. The government denies these contentions and asserts that even if defendant is correct, the good faith exception under UnitedStates v. Leon, 468 U.S. 897 (1984) should be applied and suppression should be rejected. The court has conducted a hearing and shall rule that the motion to suppress be granted.
Defendant also raises what might be characterized as aFranks issue. We agree with the government that defendant has failed to make the kind of preliminary showing necessary to conduct aFranks hearing. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
• Probable cause
A. The affidavit. A nine-page search warrant affidavit from Emporia police officer Edward P. Owens was presented to a state court judge on September 10, 2003 in Emporia, Kansas. Most of the affidavit does not discuss defendant or defendant's residence. It is clear from the affidavit that defendant's son, Alejandro Trujillo, was the focus of a drug investigation and that extensive surveillance of Alejandro Trujillo led the police officers to decide to seek a warrant to search the residence of defendant (12 South Constitution in Emporia), which is across the street from the residence of Alejandro (9 South Constitution). Several other warrants were issued and executed at approximately the same time as part of the investigation. The affidavit for the search warrant states that Officer Owens has arrested two persons who named Alejandro Trujillo as their supplier of methamphetamine and cocaine. The affidavit proceeds to discuss events which occurred during surveillance of Alejandro.
August 12, 2003
A number of officers performed surveillance on Alejandro Trujillo as he was expected to drive to Topeka to pick up money from a cooperating individual in Topeka, Kansas on August 12, 2003. He was seen driving a white Jeep Cherokee with three passengers from his residence to "North Larson Motors" where he did some business. Then he drove to a nightclub he operated called "The Train." After spending some time there, the men drove back to Alejandro's residence. Alejandro walked across the street to defendant's residence and then returned to his address and entered a small blue Nissan pickup truck as a passenger. They drove the pickup truck to an Auto Zone store and did some business. Then they drove back to Alejandro's house. At 5:30 p.m. Alejandro drove the white Jeep Cherokee to the Kansas Turnpike and to Topeka. At Topeka, he received money from the cooperating individual. Later, he made a short stop in Topeka and then drove back to Emporia.
August 14, 2003
On this day, Alejandro was expected to make a delivery of methamphetamine to the cooperating individual in Topeka and to receive money in return. He was watched as he drove to various spots in Emporia and then down to Wichita and back to Emporia. He was stopped at Matfield Green. A consent search did not discover any narcotics. There is no mention of Alejandro stopping at defendant's house or seeing defendant on this day.
August 19, 2003
Alejandro was observed in Topeka where he received $15,000 as payment for a delivery of methamphetamine made the previous day. He made another stop in Topeka and then drove back to Emporia. There, he stopped at one residence and made another stop at 1030 Scott Street, Apartment A. Someone exited his vehicle and took the money in a white plastic shopping bag inside the apartment. Alejandro left and made a couple more stops. There is no mention of Alejandro stopping at defendant's house or seeing defendant on this day.
August 29, 2003
Alejandro was observed at a Mexican restaurant. Then he drove to his home. Thereafter, he left and drove to "The Train", his nightclub. Surveillance was interrupted for a time. Then, Alejandro was followed as he in a Lexus, and another person in a GMC Yukon, drove to Topeka where they exchanged methamphetamine for $12,500. Later, they drove to another location in Topeka. Eventually, they were followed back to Emporia where surveillance was terminated. There is no mention of Alejandro stopping at defendant's house or seeing defendant on this day.
September 8, 2003
On this date, Alejandro sent one of his associates (Joshua Quirarte) to deliver methamphetamine to the cooperating individual in Topeka. Surveillance was maintained on Alejandro and he was seen putting guns in a pickup truck. There is no mention of Alejandro stopping at defendant's house or seeing defendant on this day. References to defendant or his residence in the affidavit There are four references to defendant or his residence in the affidavit. On page A-3, the affidavit states that on August 12, Alejandro walked to defendant's house and then returned to his address and entered a pickup truck. The affidavit does not say whether Alejandro entered defendant's house, what Alejandro did at defendant's residence, or how long he stayed at defendant's residence on that day. The affidavit does state: "A. Trujillo and his brother Roberto J. Trujillo Jr. spend a lot of time at [defendant's] residence as they are seen walking back and forth from 12 South Constitution to 9 So. Constitution."
On page A-8, the affidavit states:
During the course of surveillance, Officer Purling advised he has seen A. Trujillo and other subjects walking back and forth between 12 So. Constitution to 9 South Constitution carrying white plastic bags. Officer Purling also advised he has seen numerous subjects carrying white plastic bags enter vehicles and leave the area. Topeka Police Department Narcotics Detective K. Souma advised me the illegal narcotics sold/delivered to the Cooperating Individual in Topeka, Kansas have been delivered in a heat sealed type plastic bag. The U.S. currency given to A. Trujillo by the Cooperating Individual has been placed in plastic type bags and brought back to Emporia.
Finally, on page A-9, the affidavit mentions that the Emporia Police Department has received information and completed cases against defendant for selling alcohol out of his residence without a liquor license. However, it should be noted that the search warrant does not direct the gathering of evidence relevant to an alcohol offense, and government counsel does not believe this information is relevant to the issue of probable cause.
B. Legal standards. "`Probable cause . . . requires a nexus between [the contraband to be seized or] suspected criminal activity and the place to be searched.'" U.S. v. Rowland, 145 F.3d 1194, 1203 (10th Cir. 1998) (quoting U.S. v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990)).
[P]robable cause to issue a search warrant only exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime. See United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980). In determining whether probable cause exists to issue a search warrant, a magistrate's task is to make a "practical, common-sense decision" based on the totality of the circumstances as set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Corral-Corral, 899 F.2d at 931. Reviewing courts should give the magistrate's ultimate probable cause decision "great deference."United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc) (citation omitted). Nevertheless, this court will not defer to the magistrate's determination if the affidavit does not provide "`a substantial basis for concluding that probable cause existed.'"Id. (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317).
Id. at 1204. "[T]he issuing magistrate may draw reasonable inferences from the material provided in the warrant application."Id. at 1205.
In United States v. Leon, 468 U.S. 897 (1984), the Court held that where an officer acting in objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers follow its terms, the evidence seized pursuant to the warrant should not be excluded even though probable cause did not exist to justify the issuance of the warrant. The Court set out four situations in which the good faith exception to the probable cause requirement did not apply: 1) where the issuing judge was misled by false information which was knowingly or recklessly placed in the affidavit; 2) where the issuing judge "wholly abandoned his judicial role"; 3) where the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and 4) where the warrant was "so facially deficient . . . that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923 (citations omitted).
C. Analysis. The government contends that the key contributor of probable cause in this case is the observations of Officer Purling. The government asserts that when these observations are read in the context of the rest of the affidavit, probable cause is presented to believe that evidence of a crime would be found in the defendant's residence. This is because, according to the government's response to the motion to suppress: 1) Alejandro Trujillo had been identified by two separate individuals of unknown credibility as a source of illegal drugs; 2) during the investigation officers and agents confirmed that Alejandro was a drug dealer by observations of money pick-ups and drug deliveries on five dates between August 12, 2003 and September 8, 2003; 3) the illegal drugs which were delivered to the informant were packaged in heat-sealed plastic bags; 4) the drug payments which the informant gave to Alejandro were placed in plastic bags for transportation back to Emporia; and 5) during the surveillance activities which preceded the controlled deliveries of drugs by Alejandro Trujillo and which followed the drug payments to Alejandro Trujillo, Alejandro had been observed walking back and forth between his own residence and the defendant's residence carrying plastic bags. Doc. No. 25 pp. 5-6.
Thus, probable cause in this case is not argued on the basis of defendant's actions. Rather, the government bases its probable cause argument on the actions of Alejandro Trujillo. But, none of these actions involve defendant's residence, aside from walking to and from that location (sometimes with white plastic bags). The government contends this is sufficient to establish probable cause or at least to trigger the good faith exception. We disagree.
The Tenth Circuit has remarked in a case involving the search of a suspect's residence where no illegal activity was spotted that it has "never held that the mere observation of repetitive illegal drug activity outside a suspect's residence by itself is sufficient to establish probable cause for a search of the suspect's residence." U.S. v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 2000). The Tenth Circuit has also held that information that a suspect has received illegal pornographic video tapes from his post office box does not supply probable cause to search his home. Rowland, 145 F.3d at 1204-06. Of course, here we are not even dealing with a suspect's residence but with a suspect's father's residence, where the suspect spends "a lot of time."
The search warrant affidavit does not indicate whether and how often Alejandro Trujillo entered defendant's residence or exited the residence. Nor does it describe what he did at the residence other than carry white plastic bags. The affidavit does not indicate that Alejandro Trujillo ever carried contraband to or from the residence. The affidavit mentions plastic bags, but does not indicate that these were heat-sealed bags carrying methamphetamine or white plastic shopping bags which carried drug money. Bags carrying such evidence were not traced to defendant's residence. In other words, the contents of the white plastic bags carried to and from defendant's residence are left for surmise. Finally, while Alejandro's trips to defendant's residence occurred during the period in which surveillance detected illegal activity, there is, with the one exception of the August 12 trip, no indication that the visits to defendant's residence began or ended seconds, minutes, hours, or even days before or after the illegal activity. The August 12 trip to defendant's residence (30 days before the execution of the warrant) apparently occurred an hour or two before defendant drove to Topeka and received money from a cooperating individual. Defendant made two other stops before leaving for Topeka on that day, and there is no report that he made a delivery of drugs once he arrived in Topeka. So, one cannot infer he delivered something to Topeka from defendant's residence. There is also no indication that the money received in Topeka on August 12 was delivered to defendant's residence.
It is well-settled that a person cannot be arrested or searched merely on the basis of his propinquity to the location of illegal activity or to persons engaged in illegal activity. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979); U.S. v. Anderson, 981 F.2d 1560, 1566 (10th Cir. 1992). Here, it appears that mere propinquity to a person engaged in illegal activity is offered as probable cause to search a location. The government is contending that it is relying upon more than proximity. But, we do not see enough in the affidavit to amount to probable cause.
We acknowledge that in the Nolan and Rowland cases cited above, the Tenth Circuit applied the good faith exception to reject suppression where it did not find probable cause to search a suspect's house (Rowland) or did not reach the issue (Nolan). See also, U.S. v. Martinez-Martinez, 2001 WL 1241303 (10th Cir. 2001). We believe the nexus to evidence established by the affidavit in this case is much less than in those cases. It may be reasonable for an officer to infer that a drug trafficker stores evidence of his illegal activities in his residence or that a person will take pornographic video tapes received at the post office to his home. But, it is speculation to infer that a drug trafficker keeps evidence of that activity at his father's house across the street, even if he spends a lot of time there and he and other subjects carry plastic bags to and from that location. In our opinion, the search warrant affidavit, in the words ofLeon, is "so lacking in indicia of probable cause" that it "renders official belief in its existence entirely unreasonable." Therefore, we find that the good faith exception does not apply to this case. Cf. U.S. v. Helton, 314 F.3d 812 (6th Cir. 2003) (three phone calls a month to a drug dealer from a residence over a ten-month period and an undetailed tip from an anonymous source who allegedly saw stacks of money attributed by a resident to a drug dealer does not create a probability or good faith belief that the location contains evidence of a drug crime); U.S. v. Washington, 266 F. Supp.2d 781 (S.D.Ohio 2003) (rejecting probable cause and good faith arguments for warrant issued for residence which suspect was seen leaving before conducting a drug transaction while driving a vehicle registered to the address of the residence, where the officers did not know the suspect's identity or where he lived).
• Execution of the search warrant
The search warrant was executed on September 11, 2003 at about 8:00 p.m. The officers received a "no-knock" warrant from the state court judge. They did not knock or announce before entering defendant's house.
A. The affidavit. The search warrant affidavit states that no-knock authority was being requested because small amounts of methamphetamine can be easily destroyed, by flushing for instance. Further, Alejandro Trujillo was described as a non-cooperative, belligerent person who the police thought was in possession of numerous firearms "within his residence." He was also "known to have weapons in his vehicle." It must be remembered, though, that the search warrant we are considering was fordefendant's house, not Alejandro's house. There is no indication in the affidavit that defendant, or anyone else expected to be at defendant's residence, was violent or non-cooperative or belligerent. There is no indication in the affidavit that there were weapons in defendant's house. Furthermore, the only suggestion that there were drugs in defendant's house appears to be the "plastic bags" reference. But, there is no clear indication that these bags carried drugs or small amounts of drugs. It is only known that they were plastic, a ubiquitous material, and that other bags seen in defendant's possession which carried drugs or money were also plastic. The bags mentioned in the affidavit as carrying drugs were heat-sealed plastic bags. See p. A-8 of the affidavit. A bag which carried money was a white plastic shopping bag. See p. A-6 of the affidavit. There is no description of significant similarities in size, color, pattern and texture between the bags persons carried to or from defendant's residence and these bags.
B. Legal standards. "In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or fufile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394 (1997). The Tenth Circuit has stated recently that, "It is true that the mere likelihood that drugs or weapons will be found at a particular premises does not justify a no-knock or nighttime execution of a search warrant." U.S. v. Colonna, ___ F.3d ___, 2004 WL 233297 (10th Cir. Feb. 9, 2004) (citing, U.S. v. Jenkins, 175 F.3d 1208, 1214 (10th Cir. 1999)).
C. Analysis. In this case, the affidavit does not establish a likelihood of finding either drugs or firearms at defendant's residence. Nor, in our opinion, does it establish a likelihood of encountering Alejandro Trujillo at defendant's residence or that Alejandro would be armed if he was at defendant's residence.
The rulings of the Tenth Circuit appear to make clear that the statements in the affidavit and the circumstances facing the officers executing the warrant do not justify a no-knock entry. Nor can a good faith argument be made to believe that they do. In the court's opinion, this supplies an independent reason to sustain the motion to suppress.
Conclusion
Defendant's motion to suppress shall be granted.
IT IS SO ORDERED.