United States District Court, E.D. Washington
ORDER RE: PRETRIAL MOTIONS
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 ...