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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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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, Plaintiff, vs. CARRIE MARIE NEIGHBORS and GUY MADISON NEIGHBORS, Defendants.

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Case No. 07-20124-01/02-CM

RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS EVIDENCE The United States of America, by and through undersigned counsel, responds in opposition to the defendants’ Joint Motion to Suppress Evidence filed July 27, 2009. In their motion, the defendants seek an order of the Court suppressing evidence seized pursuant 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 1904 Massachusetts Street, both in Lawrence, Douglas County, Kansas. Specifically the defendants raise three claims: first that there was insufficient probable cause for issuance of 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 the warrants for the Andover residence on December 2, 2005, exceeded the scope of the warrants (Doc. 190 at pp. 6-9); and last, that the warrants issued on July 6 and July 7,

2006, were based upon on evidence that was the fruit of the poisonous tree because it was based 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 the searches be suppressed.1 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 search the residence at 1104 Andover Street, Lawrence, Kansas, for evidence relating to the state crime of receiving stolen property in violation of KSA 21-3701 (A)(4) and to the federal offenses of conspiracy in violation of 18 U.S.C. § 371 and wire fraud in violation of 18 U.S.C. § 1343. The defendants do not challenge the sufficiency of the evidence of criminal conduct by the defendant, Carrie Neighbors, that formed the basis for the searches of the defendants’ residence on Andover Street and of their business establishment, the Yellow House store at 1904 Massachusetts Street, Lawrence, Kansas. (“In the case before this court 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 motion to suppress is premised on their claim that the information obtained from two trash pulls conducted on November 16 and November 30, 2005, did not establish probable cause to
1

The defendants make no claim that the information was stale, false or provided in reckless disregard of the truth. 2

believe 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 search warrant 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 are attached 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.” See United 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, 2001 WL 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 court must remember that the magistrate is permitted to draw reasonable inferences from the affidavits. . . See United States v. Edmonson, 962 F.2d 1535, 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 a magistrate's issuance of a search warrant the court must determine whether the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U .S. 213, 236 (1983).” United States v. Pierce, 2000 WL 821386, *1 (D.Kan. 2000). According to Gates, supra, the test to be employed by a reviewing court is the totality of the circumstances, because “[p]robable cause is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232. The Tenth Circuit Court of

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Appeals has stated that “[t]he ‘affidavit’ should be considered in a common sense, nontechnical manner.” Edmonson, 962 F.3d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir. 1982)). After a practical, common-sense review of the facts asserted in the Application for a warrant to search the residence on Andover Street, Judge Steven Six of the District Court of Douglas County found probable cause for the issuance of the warrant. That

determination of probable cause must be given great deference, and should be overturned only if lacking a "substantial basis."Illinois v. Gates, 462 U.S. at 236. The Supreme Court instructs that close calls regarding probable cause determinations should be resolved in favor of the issuing magistrate judge. Massachusetts v. Upton, 466 U.S. 727, 734 (1984)(per curiam). Furthermore, when “reviewing the denial of a motion to suppress, [the circuit] court considers the totality of the circumstances and views the evidence in the light most favorable to the government. United States v. Colonna, 360 F.3d 1169, 1173 (10th Cir. 2004) (quoting United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir. 2002)) According to the United States Constitution, a valid search must be based on a warrant which was issued on the basis of probable cause. U.S. Const. Amend. IV. The proponent of the motion to suppress bears the burden of demonstrating that sufficient probable cause to issue the warrant was not shown. See United States v. Madrid, 30 F.3d 1269, 1274 (10th Cir. 1994) (citing United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991), cert. denied, 513 U.S. 1007 (1994); United States v. Moore, 22 F.3d 241, 243 (10th Cir.), cert. denied, 513 U.S. 891 (1994).

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Probable cause requires a nexus between suspected criminal activity and the place to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th Cir. 1998). Probable cause to issue a search warrant 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. Id. (citing United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980). To establish the required nexus, the affidavit supporting the search warrant need not contain direct evidence or personal knowledge that the items sought are located at the place to be searched. Rather, the issuing magistrate judge “may draw reasonable inferences from the material provided in the warrant application.” United States v. Rosand, 145 F.3d at 1205. The Government respectfully submits that the information contained in the affidavit, when considered in combination with the reasonable inferences Judge Six was allowed to draw from that information, provided the judge with probable cause to believe that items sought might be found at the residence. In addition, the trash pull on November 16, 2005, produced numerous documents, many of which bore the business address of the Yellow House Store at 1904 Massachusetts St., Lawrence, Kansas, relating to the sale and shipping of items. (Exhibit 1 at p. 20.) The evidence from that trash pull alone was sufficient to establish probable cause to believe that “books, record sheets, receipts, check/check ledgers, eBay documents and other documentation recording the sale, deliver and possession of items be sold or purchased by or through the business located at 1904 Massachusetts,” including computers and various types of computer equipment and “[p]ersonal property tending to establish identities of persons(s) in control of the business . . . and the residence. . .” would be found at the Andover residence. Exhibit 1 at p. 34. 5

A subsequent trash pull on November 30, 2005, confirmed that at least one additional document pertaining to the sale and/or shipment of items by the Yellow House Store on Massachusetts had been transferred to the Andover residence. (Exhibit 1 at p. 31). That fact, considered together with the evidence recovered from the November 16 trash pull, gave rise to the reasonable inference that the Yellow House owners transferred documents relating to the Yellow House business to the residence on Andover and would be found at that location. See United States v. Berrocal, 232 F.3d 902, 2000 WL 1629437 *2 (10th Cir. 2000) (Probable cause established even though court relied only on information from a citizen informant and evidence obtained from a single trash cover.) Viewing the evidence contained in the affidavit for the first search warrant for the residence at 1104 Andover Street in the light most favorable to the government, it is clear that, under the totality of the circumstances, there was a substantial basis for Judge Six’s conclusion that probable cause existed and that conclusion is to be accorded great deference. According Judge Six’s determination the deference it deserves, under the facts presented here, defendants’ challenges to the probable cause contained in the first affidavit for 1104 Andover Street should be overruled and denied. B. Good Faith Even if the affidavit fails to establish probable cause, the court should apply the good faith exception to the exclusionary rule as set forth in United States v. Leon, 468 U.S. 897, reh'g denied, 468 U.S. 1250 (1984). In Leon, the Court reasoned that when an officer relies in good faith on a neutral magistrate's judgment that probable cause justifies the issuance of a warrant, excluding evidence acquired pursuant to the warrant does not

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further the deterrent function of the exclusionary rule. "As the court made clear in Leon, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." United States v. Cook, 854 F.2d 371, 374 (10th Cir. 1988). There is no suggestion that the Douglas County district court judge issued the warrant in reliance on a deliberately or recklessly false affidavit, or that he abandoned his judicial role and failed to perform in a neutral and detached manner, or that the warrant itself was so facially deficient that an officer could not reasonably have believed it to be valid. The only issue is whether the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. at 923. Absent such a finding the defendant’s motion must fail. The search team reasonably relied on the validity of the search warrant was executed at 1104 Andover. In United States v. Ross, 456 U.S. 798, 823 (1982), the Supreme Court held that a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has “acted in good faith in conducting the search.” Officer Rantz, the affiant, will testify at the motion hearing of his belief that the issuing magistrate had made an appropriate determination of existing probable cause. Clearly good faith was objectively and reasonably present in the execution of the search warrant in question. II. All Warrants were Properly Executed on December 2, 2005 Defendants next allege that the warrant must be suppressed because the evidence seized as a result of the second warrant, the “piggy back” warrant, executed on the Andover property on December 2, 2005, and the first search warrant executed on the same

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day at the Yellow House business property “grossly exceeded the scope of the property which was seized.” This claim is without merit.2 ”The proponent of a motion to suppress bears the burden of proof.” United States v. Moore, 22 F.3d 241, 243 (10th Cir. 1994). The defendants fail to articulate in their Motion to Suppress which evidence they contend was improperly seized by an over-broad application of the terms of these warrants. Consequently, they have not sustained their burden of proof on this issue. Furthermore, the government respectfully submits that a review of the information in the affidavit and the return establishes that they cannot sustain that burden. A. “Piggy back” warrant of December 2, 2005 for Andover property

Defendants next argue that the executions of the second search warrants for the residence and the business executed December 2, 2005, were over-broad and require suppression of all evidence seized at that time. (Doc. 190 at pp. 9-11). These claims are without merit. 1. Warrant was sufficiently particularized While inside the residence executing the first search warrant for the Andover property on December 2, 2005, the agents discovered a hidden room next to the defendants’ bedroom that contained a marijuana grow operation. It was immediately apparent to the experienced searching officers that the plants were marijuana, establishing probable cause to seize them as contraband.
2

Because the marijuana plants were

Here, the defendants do not challenge the probable cause determination made with respect to the warrant for the store or for the piggy back warrant for the residence which issued on December 2, 2005, or claim that the information in either of the affidavits was stale, false or provided in reckless disregard of the truth 8

unrelated to the crimes listed in the affidavit in support of the first warrant for the residence, in an abundance of caution the officers applied for and obtained the second, piggy back warrant which authorized them to seize various items of evidence relating to the marijuana grow operation. (Exhibit 2, Affidavit and Piggy Back Search Warrant for 1104 Andover, attached) The items that the piggy back search warrant for 1104 Andover Street authorized the agents to seize included: 1. 2. Marijuana, marijuana plants, and marijuana seeds. Plastic baggies, scales, and other drug paraphernalia used in the cultivation, processing, use and possession of the above mentioned drug(s). Any books, record sheets, ledgers and other documentation recording the sale, delivery and possession of the above mentioned drug(s). Physical property to include but not limited to, items that appear new, items that are in their original packaging, and items with their origianl sale tag(s) attached. New and discarded packaging material used to ship and receive items.

3.

4.

5.

(Exhibit 2, at p. 6.) Because the agents had unexpectedly observed new, labeled or boxed items of merchandise and packaging materials at the residence that matched items known to have been stolen, they included a request to search for and seize new physical property as described in the warrant. Thereafter, with few exceptions, only items covered by the first warrant and this piggy back warrant were seized at the residence on December 2, 2005. Items seized during the execution of both search warrants at the residence which arguably were not authorized by either warrant were: several bicycles (Exhibit 3, Evidence 9

Custody Sheet for search of Andover residence on December 2, 2005, Item Nos. 44, 45, 48, 49, 50, 51 and 52)3, 11 firearms and ammunition (Item Nos. 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66), and a prescription pill bottle with drugs dispensed in the name of Anthony Reyes. (Item No. 67). These items were seized because the officers had probable cause to believe that they were contraband or were evidence of a crime. When determining the admissibility of evidence seized in plain view, "[t]he courts have required the government to satisfy a three-prong test: (1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent -- i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994), quoting Horton v. California, 496 U.S. 128, 136-37 (1990); see also United States v. Evans, 966 F.2d 398, 400 (8th Cir.), cert. denied ___ U.S. ___, 113 S. Ct. 502 (1992). The defendants do not claim that the officers were not lawfully in a position to view the objects or that they did not have a lawful right of access to the object itself. The "immediately apparent" standard does not require that a "police officer 'know' that certain items are contraband or evidence of a crime." Texas v. Brown, 460 U.S. 730, 741 (1983). Rather, it requires "probable cause to associate the property with criminal activity." Id., 460 U.S. at 741-42 (emphasis deleted) (citations omitted). Probable cause demands not that an officer be "sure" or "certain" but only that the facts available to a

Hereafter, all references to item numbers will refer to the Evidence Custody Sheet for the date and place relating to the search in question. Here, Ex. 3 relates to the search on December 2, 2005 or the Andover residence. 10

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reasonably cautious man would warrant a belief "that certain items may be contraband or stolen property or useful as evidence of a crime." Id., at 742. Furthermore, “[I]tems named in an impermissibly broad portion of a warrant may nevertheless be seized pursuant to the plain view doctrine so long as the government’s plain view seizure scrupulously adheres to the three-prong Horton test.” United States v. Soussi, 29 F.3d at 572. During the investigation, the officers had been informed that on several occasions stolen bicycles had been recovered at the Yellow House Store. (See Exhibit 1 at pp. 8 & 10.) The officers also knew that the officers searching the store on December 2 had verified that a bicycle found at the Yellow House Store had been stolen and that they had seized it as evidence and as contraband. That information gave rise to the reasonable inference on the part of the officers searching the residence that the used bicycles were being kept in the basement of the residence rather than in the store where most secondhand merchandise could be found, because the defendants knew that they were stolen and did not want them in a place open to the public where they could be located by police officers and confiscated for return to the rightful owners. Under these circumstances, "probable cause to associate the property with criminal activity was immediately apparent to the searching officers and they acted reasonably when they determined that the bicycles were contraband and evidence of the crime of receiving stolen property. The firearms were clearly contraband because they were found in close proximity to the marijuana plants and to a large bag of dried marijuana and marijuana pipes, giving rise to the reasonable conclusion that the guns were contraband and evidence because they were in the possession of drug manufacturers and/or drug users, who are prohibited 11

under both state and federal criminal statutes from possessing firearms. (See K.S.A. 214204(1) and 18 U.S.C. § 922(g)(3)). Finally, the drugs in the pill bottle dispensed in the name of Anthony Reyes were possessed in violation of state and federal criminal statutes prohibiting the possession of medications without a proper medical prescription. Clearly, the warrants were sufficiently particularized to provide the necessary guidance to the seizing agent about what items could properly be seized. The seizure of items arguably not covered by the warrant was done because they were in plain view and there was probable cause to believe that the items were contraband or evidence because they were similar in kind to stolen property referenced in the affidavit. Given these facts, it is clear that the second search warrant was not overly broad and that the agents properly executed the search of the residence on Andover on December 2, 2005, because the agents were clearly able to determine which items the warrant authorized them to seize. The other items seized constituted contraband or evidence of a crime found in plain view. Consequently, defendant’s claims that the search of the residence on December 2, 2005, pursuant to the warrants was overly broad is without merit and the motion to suppress the items seized from that location on that date should be denied. 2. Severability Assuming, arguendo, that the Court determines that the provision of the piggy back warrant that authorized the agents to seize “[p]hysical property to include but not limited to, items that appear new, items that are in their original packaging, and items with their original sale tag(s) attached” was overly broad, suppression is not required where the valid portions of a warrant are

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“sufficiently particularized, distinguishable from the invalid portions and make up the greater part of the warrant,“(citation omitted) we agree with the district court that severance was appropriate in this case. Under the severance doctrine, evidence seized pursuant to the invalid portions of the warrant must be suppressed, but evidence seized pursuant to the valid portions of the warrant or lawfully seized during the execution of the valid portions is admissible. United States v. Sells, 463 F.3d 1148, 1161 (10th Cir. 2006) (quoting United States v. Naugle, 997 F.2d 819, 822-23 (10th Cir. 1993) (Doctrine of severability applies if “valid portions of the warrant are sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant”). The holding in Naugle has been more generously characterized to prohibit severability only when the valid portions of the warrant is not substantial, expressed not in terms of what was seized but rather in terms of what search and seizure would have been permissible if the warrant had only named those items as to which probable cause was established. (footnotes omitted). Accordingly, we reject the proposition that the extent of the actual search or the number of items seized is the relevant criteria to determine whether the valid portions of the warrant make up “the greater part of the warrant.’ United States v. Sells, 463 F.3d at 1159. “The ‘greater part of the warrant’ analysis focuses on the warrant itself rather than upon an analysis of the items actually seized during the search.” Id. In this case, the valid parts of both warrants for the Andover residence executed on December 2, 2005 are clearly distinguishable from the one provision in the piggy back warrant that could arguably be invalid and the valid portions make up the greater part of the warrants. Consequently, if the Court determines that the provision allowing for the search and seizure of physical property to include but not limited to, items that appear new, items that are in their original packaging, and items with their original sale tag(s) was overly 13

broad, only evidence seized pursuant to that provision should be suppressed. That evidence is easily distinguishable from that evidence that was seized under the valid portions of the warrants and included seizure of documents listed in the first search warrant and for marijuana and drug-related items and packaging . B. Search of Yellow House business on December 2, 2005. 1. Items seized pursuant to the search warrant. The defendants next claim that the evidence seized at the Yellow House Store on December 2, 2005, should be suppressed because the officers grossly exceeded the scope of the property that was to be seized. As before, they do not identify which items they claim were improperly seized or how the scope of the warrant was exceeded. Consequently, the United States again asserts that failure to do so causes this claim to fail because the defendants have not satisfied their burden. In an abundance of caution, however, the United States will address what it believes are the issues raised by the defendant’s motion to suppress the search of the business in December, 2005. A review of the warrant in question reveals that the warrant authorizing the entry on to the Yellow House property was drawn with particularity. The items that the search warrant authorized the agents to seize included: Any book, record sheets, receipts, checks/check ledgers, eBay documents, and other documentation recording the sale, delivery and possession of items being sold or purchased by or through the business located at 1904 Massachusetts, including any: CPUs, floppy disks, hard disks, or any other means of storing electronic date. The data stored on any computer, or removable media located at the above listed business. Personal property tending to establish the identities of person(s) in control or employed at the business to be searched including, but not limited to, employment applications, tax information and personnel files. Physical property to include

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(Items from sale on 11/07/2005)... Items from sale of 11/18/2005) ... (items from sale on 11/29/2005).4 (Exhibit 1 at p. 35.) The specificity of the items authorized to be seized clearly establishes that the warrant itself was not overly broad and it legally justified the seizure of all of the items that fall within the scope of the warrant. Those items include all of the documents seized at the business on December 2, 2005, the devices capable of storing data, and any items of merchandise that were purchased by Carrie Neighbors from the affiant on 11/07/2005, 11/18/2005 and 11/29/2005, dates on which Carrie Neighbors had actual knowledge that the seller claimed the property had been “swiped” or “nabbed.”5 (Exhibit 1 at pp. 17, 24.) 2. Items in plain view seized pursuant to probable cause The defendants argue that the number of items seized by the officers that were not specifically authorized to be seized under the warrant converted what may have been a valid search into a general search requiring suppression of all of the evidence seized at the business on December 2, 2005. This claim is without merit because the warrant was narrowly drawn and the additional items not covered by the warrant consisting of new personal property were seized because the agents found them in plain view and had probable cause to believe each was contraband or evidence of a crime. The agents

Items that were purchased by Carrie Neighbors during the three dates mentioned in the affidavit were listed with particularity in the search warrant. See Exhibit No. 4 relating to items seized pursuant to the warrant which included: documents, Item Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 15, 16 17, 18, 25, 26, 32, 99, 101,102 amd 1-3; items capable of storing electronic data, Item Nos. 11, 12, and 14; computers, Item Nos. 13, 19, 24 and 110; items purchased by C. Neighbors from undercover officer between 11/07 and 11/30/2005, 80, 82, 84, 85 and 95 15
5

4

scrupulously followed the Horton requirements: (1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent -- i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994), quoting Horton v. California, 496 U.S. 128, 136-37 (1990). The officers were lawfully in the Yellow House Store pursuant to the search warrant and authorized to search areas, like closets, where documents could be stored. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it .... reliance on privacy concerns that support [the prohibition on general searches and general warrants] is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant. Horton v. California, 110 S.Ct. at 2310. Because that warrant authorized the agents to search for and seize documents, they were authorized to be in any place in the store and look in any place where it was reasonable to believe documents may be found, including closets, the officers’ presence in the place where they could view the items seized did not violate any privacy concerns. “[Officers may properly seize articles of incriminating character that they come across while performing a search in a given area pursuant to a valid search warrant.” United States v. Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) citing Horton v. California, 496 U.S. at 135. Consequently, the only issue in controversy is whether the agents had reasonable grounds to believe that the items seized under the plain view doctrine were contraband or evidence

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of a crime, and as the following discussion will establish, those grounds existed and justified the seizure of the items of merchandise. As stated previously, probable cause demands not that an officer be "sure" or "certain" but only that the facts available to a reasonably cautious man would warrant a belief "that certain items may be contraband or stolen property or useful as evidence of a crime." Texas v. Brown, 460 U.S. at 742, 103 S. Ct. at 1543; see also United States v. Giannetta, 909 F.2d 571, 578-79 (1st Cir. 1990) (agent need not be convinced beyond a reasonable doubt, but merely have probable cause to believe evidence was incriminatory.) A review of the information in the possession of the officers searching the Yellow House Store on December 2, 2005 and the types of evidence seized as contraband or evidence or a crime will establish that their decision to seize the items of merchandise was supported by probable cause. The Evidence Custody Sheet for the search of the store on December 2, 2005, (attached as Exhibit 4), reveals that the evidence seized as contraband or evidence of a crime fell within several specific categories which included: cameras, electronic equipment, clothing, tools, musical instruments, and a few miscellaneous new items including perfume/cologne and earring sets. All of the items seized appeared to be new, unused merchandise - the vast majority of the items still had the store tags attached or were in original packaging - and were similar in nature to the types of new stolen items that the officers knew had been recently purchased by the Yellow House.6 The merchandise was seized from one limited area, a storage closet located in the back room of the store where
6

It is important to note that the Yellow House Store is in the business of selling second hand/used merchandise. 17

it had been comingled with other items that the officers knew had been represented to Carrie Neighbors as stolen property before she purchased them. . Electronics: The officers seized numerous electronic items that were similar to

items sold to Carrie Neighbors by the undercover officer in November, 2005, on three occasions.7 Carrie Neighbors had purchased numerous new items from the affiant even after he had told her that the items he was selling had been “swiped” or “nabbed” off the back of a truck. Those items consisted of various types of electronic equipment8 including I-Pod Nanos (Ex. 1 at p. 16), Apple I-Pod Shuffles (Ex. 1 at 29, an Apple i-Pod U2 Special Edition (Ex. 1 at p. 29), a Sonicare toothbrush (Ex. 1 at p. 16), i-Pod stations (Ex. 1 at p. 16,), a Kitchen Aid mixer (Ex. 1 at p. 23), DVD players (Ex. 1 at 16, 29), a digital telephone (Ex. 1 at p. 29), and a DVD system. (Ex. 1 at 29). In addition to the various types of electronics sold to Carrie Neighbors on the abovereferenced dates, the officers also knew that other types of stolen new electronics had been sold to Carrie Neighbors. They knew that an e-Bay vendor identifying itself as “yellowhair-bargains” contained a greeting from a person named Carrie Neighbors and that a Super Target investigator had viewed the web site and found postings for the sales of electronic merchandise that was similar to types of merchandise that were missing from the Lawrence, Kansas, Super Target such as Kitchen Aid mixers, vacuum cleaners and other electronic items. (Ex. 1 at p. 5) Nicolle Beach had admitted to stealing and selling

The search warrant authorized the officers to seize all items that had been sold by the undercover officer to Carrie Neighbors on 11/07, 11/18 and 11/29/2005. See Exhibit 4, Item Nos. 21A-N, 23A-D, ,29, 30, 34 A-D, 40, 43, 44, 45, 49, 51, 52, 53, 58, 62, 65, 68, 69, 72, 73, 80, 82, 83, 84, 85, 87, 89, 95, 96, 97, 98, 105, 106, 107, 109, 111, and 113. 18
8

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to Carrie Neighbors vacuum cleaners from the Lawrence, Kansas, Super Target, and to stealing and selling a computer and a Kitchen Aid mixer to Carrie Neighbors (Ex. 1 at pp. 4, 6-7) Beach also told the officers that Carrie Neighbors paid more money for items in unopened boxes, that Carrie Neighbors told her, in sum or substance, that Carrie Neighbors had been required to return two of the stolen vacuums sold at Yellow House by Beach because they had been sitting out when the police came to inquire about them and that she had not returned the Kitchen Aid mixer because it had not been in the store when the officer came to investigate. (Ex. 1 a p.7). The officers also knew that a stolen computer had been recovered at the Yellow House Store on November14, 2003 (Ex. 1 at p. 8), and that on October 27, 2005, a Sony microsystem stereo similar to one stolen from a Super Target that day had been posted for sale on the yellowhair-bargains eBay site. (Ex. 1 at pp. 9 -10). All of this information clearly provided probable cause for the officers to believe that the new electronic items seized on December 2, 2005, were either stolen or were evidence of the aforementioned crimes. Clothing Many of the items in plain view were pieces of clothing that still had the store tags on them.9 These items were seized because the officers knew that an employee of the store had been interviewed on November 16, 2005, and had said, in sum or substance that the whole business looked like a theft ring (Ex. 1 at p. 21), that he believed that there was lots of stolen property in the business (Ex. 1 at p. 21), and that two persons, Averitt and
9

See Exhibit 4, Item Nos. 20A-Z & AA, 46, 47, 48 54, 55, 56, 57, 59A-J, 74, 75, 76, 86 A-E and 92. 19

Lately, were coming into the Yellow House all day selling brand new clothes, mostly pants. (Ex. 1 at p. 21). Averitt and Lately were well known to the Lawrence Police Department as prolific shop lifters. Numerous items of new clothing consisting of twenty (20) pairs of jeans, numerous shirts, gloves and hats, still bearing the merchant’s store tags were discovered in the Yellow House when the officers executed the warrant. Clearly, the officers had probable cause to believe that the new clothes were contraband and evidence of the crimes under investigation and seizure of those items was lawful. Cameras: The officers seized nine new cameras during the search of the Yellow House Store,10 seven of which were Sony Cybershot brand cameras and two were Kodak Easy Share cameras. The sheer number of new Sony Cybershot cameras constituted a fact sufficient to cause a reasonably cautious man to believe that those items may be contraband or stolen property or useful as evidence of a crime." Texas v. Brown, 460 U.S. at 742, 103 S. Ct. at 1543. Additionally, the officers knew that the undercover officer had sold two Fuji cameras to Carrie Neighbors on November 18, 2005, after telling her that the items he was selling her that day had been “swiped” from an overstock bin. (Ex. 1 at p. 23) Clearly, the seizure of the new cameras was based on probable cause and was proper. Tools Eight new tool sets were seized during the search11 which included four (4) sets of DeWalt tools and two sets of Husky tools. The officers knew that the employee

10

See Exhibit No. 4, Item Nos. 11, 36, 37, 38, 39, 63, 64, 65, 108, 112. Exhibit 4, Item Nos. 20H, 35, 66, 67, 70 71, 93 and 94. 20

11

interviewed on November 16, 2005, had said that “two guys” were constantly bringing in new tools like DeWalt brand tools. (Ex. 1 at p. 21). Carrie Neighbors confirmed that information on November 29, 2005, during a discussion with the undercover officer about his desire to purchase a Husky brand tool set that he saw in the store that day. Ms. Neighbors said that the tool sets that were out had already been sold but that “her guy” brought her tools every week or two. She went on to say that he is a truck driver who was able to get DeWalt and Husky tools. C. Neighbors further stated that the guy is able to get the tools, depending on what is available, off of his truck shipments and that “He gets to buy the overstock.” (Ex. 1 at p. 30) Clearly, the information provided by the employee and confirmed by Carrie Neighbors was sufficient to establish probable for the seizure of the new tools as evidence of the crimes under investigation and contraband. Musical Instruments The officers seized a Dean electric guitar12 because the officers knew that in August, 2005, the Lawrence Police Department had determined that stolen credit cards had been used to purchase musical instruments including flutes, trumpets and clarinets, at two music stores in Lawrence, Kansas. The person who picked up the instruments was identified by employees of the stores as Stacy Barnes Catlett. (Ex. 1 at p. 9). The Yellow House employee reported during his interview on November 16, 2005, that Stacey Barnes Catlett had come in to the Yellow House Store a few weeks earlier selling lots of brand new instruments such as flutes and clarinets. He stated that Carrie Neighbors had purchased new instruments from Barnes Catlett until information about the thefts was published in the

12

Exhibit 4, Item No. 77. 21

newspaper and then she stopped buying from Barnes Catlett. (Ex. 1 at p. 22)

This

information provided sufficient probable cause to justify the seizure of the new Dean electric guitar on December 2, 2005. Miscellaneous items The officer seized a few items that had not been previously identified as the types of stolen items purchased by Carrie Neighbors.13 Because these items were new and were comingled in the back closet with other new items, including items purchased by Carrie Neighbors from the undercover officer believing them to have been stolen, the incriminatory nature of those miscellaneous items was immediately apparent. See United States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999) (once agent came across false licenses and credit cards, incriminatory nature of any other items in those names became immediately apparent to the agent.) Consequently, seizure of these items was warranted. Here, the search and seizures were reasonable because the officers seized only items that were covered by the warrant or which they reasonably believed were contraband or evidence based upon information they possessed when they entered the business to execute the warrant. With few exceptions, all of the seized items that were not

enumerated in the search warrant were new, as evidenced either by in-tact sales tags or by original packaging, and all were found in a closet in the back of the store where items

Exhibit 4, Item Nos. 20 E, F, I, 23, 23 E and 23 F (new perfume and cologne); 20 U, (blood pressure cuff), 22, ((3) VHF tapes); 60 (OBDZ card reader), 79 ((3) PCI sound cards), 81 (Microsoft software), 88 (Microsoft software) and 91 ((4) DVDs) 22

13

purchased from the affiant by Carrie Neighbors, which she believed had been “swiped,” had been co-mingled with the other new merchandise. 14 Based on the foregoing, the United States respectfully submits that all of the evidence collected either at the Yellow House Store or at the residence was properly seized, either because it was seized pursuant to the terms of three valid search warrants or because it was contraband or evidence of the crimes under investigation and was in plain view when discovered. 3. Severability A search is not invalidated in its entirety merely because some seized items were not identified in the warrant. See United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997). Rather, invalidation of an entire search based on a seizure of items not named in the warrant is an “extraordinary remedy” that “should be used only when the violations of the warrant’s requirements are so extreme that the search is essentially transformed into an impermissible general search.” United State v. Chen, 979 F.2d 714, 717 (9th Cir. 1992). Put another way, searching officers may be said to have flagrantly disregarded the terms of a warrant when they engage in “indiscriminate fishing” for evidence.” Id. United States v. Robinson, 275 F.3d 371, 381-82 (9th Cir. 2001). In this case, the searching officers did not engage in an indiscriminate fishing expedition. Rather, they seized only items from among many pieces of merchandise that reasonably appeared to be new and of the type that they knew from their earlier investigation were often purchased by Carrie Neighbors from persons who had stolen them. The vast majority of items in the The one used item that was seized was a bicycle. Police officers had recovered stolen bicycles from the Yellow House Store in the recent past. Knowing that, the officers compared the serial number of a used bicycle found on the premises with information in the police records and determined that the item had been reported stolen, clearly establishing the bicycle as an item of contraband. The vast majority of items in the Yellow House Store on December 2, 3005, were used, and except for the one stolen bicycle recovered that day, no other used merchandise was seized. 23
14

Yellow House on December 2, 2005, were not seized. The officers cannot be said to have turned their search in to a general one by flagrantly disregarding the terms of the warrant for the search of the Yellow House store. Consequently, the extraordinary remedy of total suppression is not warranted. Here, should the court determine that there was insufficient probable cause to seize the items of merchandise, it should exercise its discretion and order the suppression of only those items of merchandise that were not authorized to be seized in the warrant. See United States v. Naugle, 997 F.2d at 822-23 (10th Cir.1993) (Doctrine of severability applies if “valid portions of the warrant are sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant”). The entire warrant for the search of the Yellow House Store on December 2, 2005 was valid so if any evidence is suppressed, the United States respectfully submits that it should include only the items of new merchandise recovered on December 2, 2005. C. Warrants for Searches on July 7, 2005 were Valid Finally, the defendants claim that the two federal search warrants in Case Nos. 06M-8075-01-JPO and 06-M-8075-02-JPO and the piggy back state search warrant (Exhibit 5, attached) that issued on July 7, 2006, were based on evidence that was the fruit of the poisonous tree because it was obtained during allegedly illegal searches on December 2, 2005. As the foregoing discussion establishes, the searches and seizures of evidence at the Yellow House Store and at the Andover residence in December, 2005, were legal and appropriate, thus causing this argument to fail. Assuming, for the sake of argument only, that the Court determines that the evidence seized during the searches in December 2005, should be suppressed, such 24

finding does not require suppression of the evidence seized during the July, 2006 searches. An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was crucial to establishing probable cause. United States v. Karo, 468 U.S. 705, 179 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). If however, the affidavit contained sufficient accurate or untainted information, the warrant is nevertheless valid. Id. United States v. Morgan, 106 Fed.Appx 694, 2005 WL 3475864 *3 (C.A.10(Kan)). With respect to the affidavits submitted for the three warrants issued on July 7, 2006, each contained sufficient untainted information to establish probable cause that evidence of a crime or contraband would be found at the Yellow House Store or at the Andover residence. The evidence that the defendants contest was found in the

applications for the federal warrants at paragraphs 9 - 12 which referred to several items of stolen property that were recovered during the December searches of the store and the residence and the results of law enforcement review of certain documents recovered during the December searches.15 However, even if all information obtained from the

December searches, is excised from the July 6 affidavits, the remaining untainted information overwhelming supports the probable cause finding for all three of the July warrants. Id.

The applications for the warrants that issued on November 30, 2005 were attached to each of the affidavits for the federal search warrants, but the information in those documents was obtained prior to and independently of the searches on December 5, 2005, so cannot be characterized as “tainted.” Further, none of the information in ¶ ¶ 9 - 12 of the July, 2006 affidavits was included in the application submitted to the Douglas County district court judge on July 7, 2006, but it was disclosed to him that the piggy back warrant was based upon evidence found in plain view of the officers when they went into the Andover residence that day to execute the federal search warrant. 25

15

All of the information contained in paragraphs 13 - 44 of the July 7, 2006, search warrant described evidence pertaining to the execution of a wire fraud/ mail fraud scheme in violation of 18 U.S.C. §§ 2343 and 1341. That information was obtained from

investigative procedures unrelated to information or items seized in December, 2005 and included trash pulls, witness interviews concerning the sale of stolen vacuum cleaners to Carrie Neighbors, undercover sales to and recorded conversations with Ms. Neighbors. The additional evidence collected independently of any evidence or information seized during the December searches clearly established probable cause for the issuance of the federal warrants in July, 2006. Consequently, the defendants’ claims that all of the evidence collected during the executions of the July warrants must be suppressed because it is fruit of the poisonous tree is not supported by the untainted facts available to the magistrate judge on July 6, 2006, and their motion to suppress should be denied. IV. Conclusion For the reasons enumerated herein, the United States respectfully submits that defendant’s motion to suppress the evidence seized on December 2, 2005 and that seized on July 7, 2006, should be denied in its entirety. Respectfully submitted, LANNY D. WELCH United States Attorney

s/Marietta Parker MARIETTA PARKER KS Dist. Ct. # 77807 Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101 (913) 551-6730 (telephone) (913) 551-6541 (facsimile) E-mail: marietta.parker@usdoj.gov 26

s/Terra D. Morehead TERRA D. MOREHEAD KS S.Ct # #12759 Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101 (913) 551-6730 (telephone) (913) 551-6541 (facsimile) E-mail: terra.morehead@usdoj.gov

27

CERTIFICATE OF SERVICE I hereby certify that on the 5th day of August, 2009, the foregoing was electronically filed with the clerk of the court by using the CM/ECF system which will send a notice of electronic filing to the following: John Duma 303 E. Poplar Olathe, KS 66061 Attorney for Defendant Carrie Marie Neighbors Cheryl A. Pilate Morgan Pilate LLC 142 N. Cherry Olathe, KS 66061 Attorney for Defendant Guy Madison Neighbors I further certify that on this date the foregoing document and the notice of electronic filing were mailed by first-class mail to the following non-CM/ECF participants:

None s/Marietta Parker Assistant United States Attorney

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