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Case No. 07-20124-01/02-CM response to evidence suppression

Case No. 07-20124-01/02-CM response to evidence suppression

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Published by Jones, Walker

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Published by: Jones, Walker on Aug 10, 2009
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,))Plaintiff,))vs.) Case No. 07-20124-01/02-CM)
The United States of America, by and through undersigned counsel, responds inopposition to the defendants’ Joint Motion to Suppress Evidence filed July 27, 2009. Intheir motion, the defendants seek an order of the Court suppressing evidence seizedpursuant to search warrants issued on November 30, 2005, and executed on December 2, 2005, and evidence seized pursuant to search warrants issued on July 5 and July 6,2006, for a residence located at 1104 Andover Street, and a business located at 1904Massachusetts Street, both in Lawrence, Douglas County, Kansas. Specifically thedefendants raise three claims: first that there was insufficient probable cause for issuanceof the first search warrant on November 30, 2005, for the Andover residence (Document[Doc.] 190 at pp. 1-6); second that the seizure of evidence during the execution of thewarrants for the Andover residence on December 2, 2005, exceeded the scope of thewarrants (Doc. 190 at pp. 6-9); and last, that the warrants issued on July 6 and July 7,
The defendants make no claim that the information was stale, false or provided
in reckless disregard of the truth.22006, were based upon on evidence that was the fruit of the poisonous tree because it wasbased on evidence illegally seized from the first warrants executed on December 2, 2009.(Doc. 190 at pp 9-11). The defendants request that all evidence seized during each of thesearches be suppressed. As the following discussion will establish, none of these claims
are meritorious and the motion to suppress should be denied in its entirety.
I. First Search Warrant for 1104 Andover 
In the search warrant affidavit, Officer Mickey Rantz of the Lawrence, Kansas,Police Department, provided certain information that established probable cause to searchthe residence at 1104 Andover Street, Lawrence, Kansas, for evidence relating to the statecrime of receiving stolen property in violation of KSA 21-3701 (A)(4) and to the federaloffenses of conspiracy in violation of 18 U.S.C. § 371 and wire fraud in violation of 18U.S.C. § 1343. The defendants do not challenge the sufficiency of the evidence of criminalconduct by the defendant, Carrie Neighbors, that formed the basis for the searches of thedefendants’ residence on Andover Street and of their business establishment, the YellowHouse store at 1904 Massachusetts Street, Lawrence, Kansas. (“In the case before thiscourt the defendants concede that the affidavit for the first search executed on December 2, 2005, would satisfy the probable cause requirements and nexus for the search of the‘Yellow House’ store.”) (Doc. 190 at p. 7) The same information was provided to the district judge with respect to the search of the residence on Andover Street. Instead, their motionto suppress is premised on their claim that the information obtained from two trash pullsconducted on November 16 and November 30, 2005, did not establish probable cause to
3believe that evidence of the crimes described in the affidavit would be found at the Andover residence.
A. Probable Cause Existed to Issue the Search Warrant
.In this case, probable cause clearly existed to justify the issuance of the searchwarrant for the first search warrant issued on December 2, 2005, for the residence at 1104 Andover. A copy of that affidavit and the warrant for the search of the residence areattached hereto as Exhibit 1.Courts in this District have stated on several occasions that a determination of probable cause by a neutral judge or magistrate is to be accorded “great deference.”
SeeUnited States v. Reno
, 196 F.Supp.2d 1150, 1157 (D.Kan. 2002) (citing
United States v.Finnigin
, 113 F.3d 1182, 1185 (10th Cir. 1997));
see also
United States v. Downes
, 2001WL 121951, *3 (D.Kan., decided Jan. 12, 2001). They have also stated that:“In deciding a suppression motion based upon the asserted failure of the affidavits to provide probable cause for the warrant, the reviewing courtmust remember that the magistrate is permitted to draw reasonableinferences from the affidavits. . .
United States v. Edmonson,
962 F.2d1535, 1540 (10th Cir. 1992);
United States v. Peveto,
881 F.2d 844, 850(10th Cir. 1989),
cert. denied,
493 U.S. 943 (1989). When reviewing amagistrate's issuance of a search warrant the court must determine whether the magistrate had a substantial basis for concluding that probable causeexisted.
Illinois v. Gates,
462 U .S. 213, 236 (1983).”
United States v. Pierce
, 2000 WL 821386, *1 (D.Kan. 2000). According to
, the test to be employed by a reviewing court is thetotality of the circumstances, because “[p]robable cause is a fluid concept – turning on theassessment of probabilities in particular factual contexts – not readily, or even usefully,reduced to a neat set of legal rules.”
462 U.S. at 232. The Tenth Circuit Court of 

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