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United States v. Root

United States District Court, E.D. Washington

September 22, 2014



THOMAS O. RICE, District Judge.

BEFORE THE COURT are Defendant's Motion for Bill of Particulars (ECF No. 141), Motion to Suppress Evidence Seized (ECF No. 142), Motion to Dismiss/Challenge Sufficiency of Indictment (ECF No. 167), Motion to Suppress Pole Camera Evidence (ECF No. 168), Motion to Dismiss Case re: Speedy Trial Violation (ECF No. 171), Motion to Suppress Statements (ECF No. 188), and Motion for Disclosure of Brady Material (ECF No. 189), as well as the Government's responsive briefing on each motion. A pretrial conference and evidentiary hearing was held on September 19, 2014, in Spokane. The Government was represented by Caitlin A. Baunsgard. The Defendant was present with his counsel, Douglas D. Phelps. The Court has reviewed the motions and accompanying pleadings, heard from counsel and is fully informed.

1. Motion for Bill of Particulars (ECF No. 141)

Defendant seeks specific information by which the United States seeks to prove the case against him. For instance, Defendant seeks the specific dates, statements, overt acts, events, and conversations upon which the prosecution will rely to establish the charged conspiracy. ECF No. 141 at 1-3.

A bill of particulars has three purposes: to apprise the defendant of the specific charges being presented so as to minimize surprise at trial, to aid the defendant in preparing for trial, and to protect against double jeopardy. United States v. Burt, 765 F.2d 1364, 1367 (9th Cir. 1985) (citing United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983)); United States v. Ayers, 924 F.2d 1468, 1483-84 (9th Cir. 1991). In general, where the indictment notifies the defendant of the charges against her and the approximate dates of her alleged illegal conduct, a bill of particulars is not warranted to ascertain the exact dates of the conduct. United States v. DiCesare, 765 F.2d 890, 897-898 (9th Cir. 1985) (Defendants "requested a bill for three reasons: (1) to obtain the names of any unknown coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity. These reasons, however, do not warrant a bill of particulars.") (citations omitted).

The Superseding Indictment (combined with the discovery provided in this case) sufficiently informs Defendant of the specific charges being presented so as to minimize surprise at trial, to aid the defendant in preparing for trial, and to protect against double jeopardy. This motion is denied.

2. Motion to Suppress Evidence Seized (ECF No. 142)

Defendant seeks an order suppressing all evidence obtained during the execution of a search warrant at his residence and car. He contends the affidavit in support of the warrant (reproduced at ECF No. 142 at 45-51) did not establish sufficient probable cause.

Under the Fourth Amendment, a search warrant may not issue without probable cause. U.S. CONST. amend. IV. The determination whether probable cause exists is a "practical, common-sense decision" made in light of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). In determining whether a search warrant was based upon probable cause, this Court is "limited to the information and circumstances contained within the four corners of the underlying affidavit." Crowe v. Cnty of San Diego, 608 F.3d 406, 434 (9th Cir. 2010) (quoting United States v. Stanert, 762 F.2d 775, 778, amended on other grounds, 769 F.2d 1410 (9th Cir. 1985)).

Review of a magistrate judge's determination that probable cause existed for a warrant is deferential; "the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39; see also United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) ("Normally, we do not flyspeck' the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination should be paid great deference." (internal quotation marks omitted)).

For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched, or that the evidence is more likely than not to be found where the search takes place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.

United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004) (quoting United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985), overruled on other grounds, Gomez v. United States, 490 U.S. 858 (1989)) (emphasis in original). In evaluating affidavits which, as here, contain hearsay information supplied by a witness to a police officer, the magistrate's task "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity' and basis for knowledge' of person[] supplying hearsay information, 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; see also United States v. Miller, 753 F.2d 1475, 1479 (9th Cir. 1985).

In this case, the victim's testimony placed her in Defendant's house overnight where she observed substantial quantities of methamphetamine as well as firearms, where she smoked methamphetamine with Defendant, and during which time Defendant told her that he had obtained the house in exchange for $25, 000 in methamphetamine. Satisfying one prong of the Gates analysis, the victim had a strong basis of knowledge: recent first-hand observation of contraband and evidence in Defendant's residence.

Defendant's argument, as focused in his supplemental briefing, centers on the second Gates prong. He argues there were insufficient indicia of the veracity of the victim's statements because law enforcement officers failed to disclose the victim's criminal history in the affidavit. Intentional or reckless omissions may negate the showing of probable cause in a search warrant. See United States v. Estrada, 733 F.2d 683, 686 (9th Cir. 1984). It is Defendant's burden to make a "substantial showing" that the omissions were intentional or reckless; his allegations must be accompanied by an offer of proof. United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002). Defendant has offered no proof beyond his assertions that the Deputy James Pelissier, in swearing out the affidavit, intentionally or recklessly omitted information about the victim's past criminal convictions. ECF No. 166

Further, Defendant must show that such omissions, even if they were intentional or reckless, undermined the sufficiency of the affidavit. See Estrada, 733 F.2d at 686. The victim's criminal record consists of juvenile convictions for third-degree possession of stolen property, third-degree theft, and third-degree malicious mischief. None of these crimes bear on the honesty or credibility of the victim. See, e.g., United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982) ("Generally, crimes of violence, theft crimes, and crimes of stealth do not involve dishonesty or false statement.... [and therefore] do not bear directly on the likelihood that the defendant will testify truthfully." (internal citations and quotation marks omitted)). Nor does the fact that victim admitted to using methamphetamine with Defendant impinge her credibility. See, e.g., Estrada, 733 F.2d at 686 ("Admissions of crimes... carry their own indicia of credibility- sufficient at least to support a finding of probable cause to search.") (quoting United States v. Harris, 403 U.S. 573, 583 (1971)). Adding to her credibility, the victim positively identified Defendant's car and house to the police, and she showed physical scrapes and bruising corroborating her statements regarding the assault. The magistrate had sufficient indications of the veracity and base of knowledge of the victim's statements to conclude, as a matter of common sense, that it was fairly probable the drugs and guns were located in Defendant's residence.

Finally, Defendant contends that even if there was probable cause to issue a warrant to search his house, there was not probable cause to issue a warrant to search his car. The totality of the circumstances in this case also made it reasonable for the magistrate to conclude it was fairly probable that the car contained contraband or evidence of drug sales. At the time Defendant was stopped, he admitted he tried to evade police by turning onto a dirt road and accelerating away. Defendant was immediately arrested by the investigating officers on a felony warrant out of Idaho charging him with possession of a controlled substance with intent to distribute. Given this information demonstrating Defendant's possible connection with drug trafficking and his expressed intension to avoid police contact, Deputy Pelissier's statement that narcotic users will often travel with narcotics, and the victim's statements regarding the large zip-lock of methamphetamine, the guns, and Defendant's comment that he obtained the house in exchange for $25, 000 of methamphetamine, it was reasonable for the magistrate to conclude that Defendant was in the business of selling methamphetamine and that he would likely use his car to further that enterprise. As such, the magistrate had a substantial basis for concluding that Defendant's car contained contraband or evidence of his alleged trafficking.

There is also no basis in the record for seriously contending that the good faith exception to the exclusionary rule does not apply. United States v. Leon, 468 U.S. 897 (1984).

Accordingly, Defendant's motion to suppress evidence seized pursuant to the warrant is denied.

3. Motion to Dismiss/Challenge Sufficiency of Indictment (ECF No. 167)

Defendant contends the indictment against him must be dismissed as it does "not charge a necessary element" of the offense and all the elements have not been submitted to the grand jury. ECF No. 167. Defendant reasons that simply charging "50 grams or more of pure (actual) methamphetamine" does not allow him to make an informed decision regarding possible sentences and specifically the upper limits of the range of punishment. Id. at 3-4.

The United States asserts the indictment properly asserts the elements of the offense and the quantity necessary for the punishment sought. ECF No. 202.

Defendant is charged in count 1 of the superseding indictment with conspiracy to possess with intent to distribute 50 grams or more of pure (actual) methamphetamine. ECF No. 172. The elements of a drug conspiracy under 21 U.S.C. § 846 are (1) there was an agreement to accomplish an objective made criminal by § 841(a)(1), which prohibits the possession with intent to distribute a controlled substance; and (2) the defendant intended to commit the underlying offense. See United States v. Suarez, 682 F.3d 1214, 1219 (9th Cir. 2012). There is no requirement to prove an overt act in furtherance of the conspiracy, an illegal agreement alone is sufficient. Id. (citing United States v. Shabani, 513 U.S. 10, 15-16 (1994)). Defendant correctly observes that the type and quantity of drugs involved determines the statutory penalty associated with the crime, 21 U.S.C. § 841(b), and must be submitted to the jury (grand and petite) in order for increased statutory maximum penalties to apply. See United States v. Cortes, 757 F.3d 850, 861 (9th Cir. 2014) ( citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). The Supreme Court has further held:

[] Apprendi 's definition of "elements" necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.

Alleyne v. United States, 133 S.Ct. 2151, 2158 (2013) (citations omitted). But here, the Superseding Indictment alleges the type and quantity of controlled substance which would invoke the highest penalty under the statute-10 years to life imprisonment. There is no showing that the United States did not present evidence as to the type and quantity of drugs here.

Defendant's complaint that he cannot calculate where within that range his potential sentence will lie misses the mark, too. The jury does not decide the ultimate sentence, but only the operative facts that will inform the court as to the range of sentences available. Since United States v. Booker, 543 U.S. 220 (2005), the sentencing guidelines are only advisory-a district court must correctly calculate the guideline range before imposing a reasonable sentence. See United States v. Carty, 520 F.3d 984, 991-94 (9th Cir. 2008). Defendant's motion is denied.

4. Motion to Suppress Pole Camera Evidence (ECF No. 168)

Defendant contends that the warrantless installation and use of a pole camera to continuously record all activity in the public alleyway behind his house constituted a warrantless search under the Fourth Amendment. He argues such a search is an unreasonable intrusion into his privacy interests and therefore all evidence obtained from the camera must be suppressed.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. CONST. amend. IV. "[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)) (quoted in United States v. Gonzalez, 328 F.3d 543, 546 (9th Cir. 2003)). The Supreme Court recently held in United States v. Jones that, while the reasonable expectation of privacy test is not the exclusive test for evaluating whether a Fourth Amendment search occurred, cases "involving merely the transmission of electronic signals without trespass would remain subject to the [reasonable expectation of privacy] analysis." 132 S.Ct. 945, 953 (2012) (emphasis in original). As such, to determine whether a search was conducted under the Fourth Amendment in this case, this Court must determine whether Defendant had a "reasonable expectation of privacy" in the location and activities observed by the pole camera.

"[W]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351. Law enforcement agents may use their resources to conduct surveillance where they have a legal right to occupy. See, e.g., Florida v. Riley, 488 U.S. 445, 449 (1989) ("[T]he police may see what may be seen from a public vantage point where [they have] a right to be'...." (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986))). "A person has a stronger claim to a reasonable expectation of privacy from video surveillance than against a manual search." United States v. Gonzalez, 328 F.3d 543, 548 (9th Cir. 2003) (citing United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991)) (noting that the Ninth Circuit has held that the Fourth Amendment forbids warrantless videotaping of private offices and hotel rooms). However, videotaping in public places does not violate the Fourth Amendment. Id .; see also Jones, 132 S.Ct. at 953 ("This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.").

For example, a district court found that law enforcement officials violated a defendant's reasonable expectation of privacy where a neighbor acting for the state conducted round-the-clock video surveillance of defendant's fenced back yard for fifty-six days. Shafer v. City of Boulder, 896 F.Supp.2d 915 (D. Nev. 2012). Similarly, in affirming a conviction based on evidence derived through video surveillance of the defendant's back yard from a camera placed on a power pole, the Fifth Circuit held that: (1) the video surveillance constituted a search for Fourth Amendment purposes because he had a reasonable expectation of freedom from such surveillance in his back yard; but (2) the search warrant authorizing the surveillance was proper and did not violate defendant's Fourth Amendment rights. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). However, the Tenth Circuit held that warrantless installation of silent video surveillance cameras on telephone poles outside an accused narcotics offender's house, and outside the house of another person, was held not to violate the accused's Fourth Amendment rights. United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000) (noting that the cameras could not view within the houses and could observe only what any passerby would easily have been able to observe, thus, concluding that the accused had no reasonable expectation of privacy intruded upon by the cameras), vacated on different grounds, 531 U.S. 1033 (2000).

The evidence presented at the suppression hearing demonstrated that the pole camera only recorded activity that occurred in the public alleyway behind Defendant's detached garage. No law enforcement agent trespassed on any property in which Defendant had a privacy interest while installing the camera.[1] The position of the camera was such that it could not observe more than the roof of Defendant's garage and the alleyway directly adjacent to the garage. While the pole camera was capable of zooming and panning, FBI Special Agent Edward Jacobson offered uncontradicted testimony that the investigating officers never manipulated the camera to observe any area beyond the alleyway. Indeed, any further observation of the Defendant's property was obscured by trees as well as a neighboring house and detached garage located directly between the pole camera and Defendant's own house and garage. See Exhibits A and C. Special Agent Jacobson testified that the camera could not and did not observe the front or back door of the house and none of its windows. See Exhibit C as illustrative of the pan toward the house, but the view does not even come close to the house. Indeed, based on his testimony, the camera did not view the street in front of the house either. Based on the photographs introduced, as well as Special Agent Jacobson's testimony regarding the location of the camera and the intervening property, the Court concludes the camera did not directly observe Defendant's property or activities which occurred on his property or inside his home. Instead, the camera only observed activity which occurred in the public alleyway behind his garage. Defendant does not have a legitimate expectation of privacy in activities which occurred in that public alleyway, readily observable by any passerby. As such, Defendant's motion to suppress the pole camera evidence is denied.

5. Motion to Dismiss Case Re: Speedy Trial Violation (ECF No. 171)

Defendant contends he has been continuously held in custody since August 6, 2013, and that his speedy trial rights have been violated such that the charges should be dismissed against him. ECF No. 171 at 7. He asserts violations of Fed. R. Crim. P. 48(b), the Sixth Amendment, and 18 U.S.C. § 3161(c)(1).

The grand jury issued an indictment against the Defendant on January 7, 2014. ECF No. 31. Defendant did not appear in this judicial district on the charge until March 18, 2014. ECF No. 83. Prior to that time, Defendant had been held in custody on other charges by other jurisdictions, including Whitman County, Washington, and the District of Idaho. See ECF No. 196-1. Once Defendant was brought to this court to answer to the charges, less than forty nine days elapsed before the court granted a co-defendant's motion to continue the trial. The Court entered a finding declaring excludable under the speedy trial clock the time from May 1, 2014, when the motion was filed, until July 28, 2014, when the new trial was scheduled. ECF No. 124. Defendant signed a written waiver of his speedy trial rights, agreeing to this continuance. ECF No. 127. Defendant later sought a continuance, which the Court granted and declared excludable under the speedy trial clock the period from July 7, 2014, when the motion was filed, until September 29, 2014, the new trial date. ECF No. 158. Defendant again signed a written waiver agreeing to this continuance. ECF No. 150. Accordingly, there has been no violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), requirement that Defendant be brought to trial within seventy days (absent excludable delay).

With respect to a challenge based on defendant's speedy trial rights under the Sixth Amendment, the court considers four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of speedy trial rights; (4) and prejudice as a result of the delay. Doggett v. United States, 505 U.S. 647, 651-52 (1992). A presumptively prejudicial length of delay must be shown to consider the remaining factors. Id. Courts generally have found that delays approaching one year, between indictment and trial, are presumptively prejudicial. See United States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003). A primary reason for the delay in this case was defendant's pretrial detention in the District of Idaho and the length of time necessary to resolve those charges. The remaining delay is attributed to the Defendant's own need for trial preparation or that of his codefendants' with which he agreed. Thus, Defendant has not shown that the government's conduct caused the delay, or most importantly, that he suffered any actual prejudice as a result.

Dismissal under Rule 48(b) is likewise unwarranted in this case. A Rule 48(b) dismissal should be imposed only in extreme circumstances. United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 738 (9th Cir. 1989) (dismissal with prejudice is proper only after a "forewarning of the consequences" of further delay). No such circumstances exist in this case. Defendant's motion is denied.

6. Motion to Suppress Statements (ECF No. 188)

Defendant seeks to suppress certain statements he made to state officers when he was arrested on August 6, 2014, on state charges. ECF No. 18. The United States agrees that it will not introduce any of those statements in its case-inchief.

Accordingly, Defendant's motion is denied as moot.

7. Motion for Disclosure of Brady Material (ECF No. 189)

Defendant complains that he has not received all the Brady material he is entitled. ECF No. 189. The United States responds generally that all Brady material has been provided or will be provided as it is located or identified relative to a particular witness that will be called at trial. "The defendant bears the initial burden of producing some evidence to support an inference that the government possessed or knew about the Brady material." United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011) (internal quotation marks omitted). Defendant has not produced any evidence that the government possesses or knows of any undisclosed Brady material. Accordingly, Defendant's motion is denied.


1. Defendant's Motion for Bill of Particulars (ECF No. 141) is DENIED.
2. Defendant's Motion to Suppress Evidence Seized (ECF No. 142) is DENIED.
3. Defendant's Motion to Dismiss/Challenge Sufficiency of Indictment (ECF No. 167) is DENIED.
4. Defendant's Motion to Suppress Pole Camera Evidence (ECF No. 168) is DENIED.
5. Defendant's Motion to Dismiss Case re: Speedy Trial Violation (ECF No. 171) is DENIED.
6. Defendant's Motion to Suppress Statements (ECF No. 188) is DENIED.
7. Defendant's Motion for Disclosure of Brady Material (ECF No. 189) is DENIED.

The District Court Executive is hereby directed to enter this Order and furnish copies to counsel.

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