United States District Court, W.D. Washington, Seattle
September 26, 2014
UNITED STATES OF AMERICA, Plaintiff,
NATHAN BONDS, Defendant.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO COMPEL PRODUCTION OF BRADY MATERIALS AND DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
JOHN C. COUGHENOUR, District Judge.
These matters come before the Court on Defendant's Motion to Compel Production of Brady Materials (Dkt. No. 48) and Defendant's Motion to Suppress Evidence (Dkt. No. 49). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Defendant's Motion to Compel (Dkt. No. 48) with regard to all requests save Defendant's second Brady materials request, GRANTS IN PART Defendant's second Brady materials request in the Motion to Compel (Dkt. No. 48), subject to the specifications in this Order, DENIES Defendant's Motion to Suppress (Dkt. No. 49), and DENIES Defendant's request for an evidentiary hearing.
Defendant, forty-three-year-old Nathan Bonds ("Slim"), has been charged with the sex trafficking of two sixteen year old girls ("JV1" and "JV2") and with transporting JV1 and JV2 and an adult woman ("FV1") across state lines for the purposes of prostitution. During the spring of 2013, JV1 and JV2 provided statements to law enforcement that "Slim, " a man subsequently identified as Defendant, had convinced them to engage in commercial sex and to provide him with the proceeds. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9 at 3.)
After completing the interviews with JV1 and JV2, law enforcement found evidence corroborating the statements of the two minors, including, but not limited to, hotel records, "Backpage.com" advertisements featuring JV1, JV2, and FV1 that indicated a telephone number now identified to a phone found in Defendant's car upon his arrest, and surveillance videos showing Defendant with JV1 and JV2 in Washington and Oregon. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9.)
Based on this evidence, the Kent Police Department decided to issue a law enforcement awareness bulletin describing Defendant, FV1, and the Cadillac Defendant was known to drive, and instructing law enforcement personnel to contact Detective Brian Lewis of the Kent Police Department upon contact with Defendant or the Cadillac. (Bulletin, Dkt. No. 53, Ex. 10.) On June 5th, 2013, Deputy Ryan Phillips of the Snohomish County Sherriff's Office saw a Cadillac in a restaurant parking lot on Everett Avenue, in Everett, Washington, that matched the description in the Bulletin. After spotting a man, (Defendant), in the driver's seat, and a woman, (FV1), in the passenger seat, who also matched the description on the Bulletin, Deputy Phillips approached the car from the passenger side, where the window was rolled down. (Declaration of Ryan Phillips, Dkt. 53, Ex. 7 at paras. 3, 4.) After a brief conversation to see what Defendant and FV1 were doing (eating food from the restaurant), Deputy Phillips asked to see the occupants' identification. The Defendant began to proclaim that he did not need to provide the Deputy with identification. ( Id. at 4.) The Defendant then said that the Deputy could see his identification, but that he would have to come over to the driver's side to get it. The Defendant then put his left hand down his side. This raised Deputy Phillips' "safety concerns, " and he felt compelled to draw his gun and to call for backup. ( Id. at 4, 5.) When a backup officer arrived and took over the detention of Defendant, Deputy Phillips spoke with FV1. She identified the man in the car as "Slim." ( Id. at 6.)
Deputy Phillips then called Detective Brian Lewis of the Kent Police Department, following the instructions on the Bulletin. ( Id. at 7.) Detective Lewis told Deputy Phillips that he had probable cause to arrest the male driver, "Slim, " based on evidence that he had been involved in sex trafficking two minors. Detective Lewis told Deputy Phillips to have the Cadillac impounded, as it had been used in the alleged offenses. ( Id. ) Detective Lewis asked Deputy Phillips whether he had seen anything in the car while speaking to Defendant and FV1. ( Id. at 8.) Deputy Phillips responded that he had seen three phones in the car, one of which was next to Defendant in the driver's door pocket. ( Id. )
Deputy Phillips avers that he did not go into Defendant's car or search it at any time. ( Id. ) After his call with Detective Lewis, Deputy Phillips placed Defendant in his patrol car. ( Id. at 9.) After the tow truck that Dispatch had sent arrived, the tow truck operator attached Defendant's Cadillac to the tow truck. ( Id. at 9, 10.) Deputy Phillips then drove Defendant, in his patrol car and following behind the truck towing Defendant's car, to the Snohomish County South Precinct. ( Id. at 11.) Upon arrival of the patrol car carrying Deputy Phillips and Defendant and the tow truck carrying Defendant's car, the tow truck driver put the Cadillac in the station's parking bay, and Deputy Phillips placed evidence tape over the doors and initialed the tape. ( Id. ) Deputy Phillips states that at no time did he enter or search the Cadillac, nor knows of anyone else doing so until a search pursuant to a warrant was conducted the following day. ( Id. )
Later that evening, Detective Lewis went up to the Snohomish County South Precinct where Defendant and the Cadillac were in custody. (Declaration of Brian Lewis, Dkt. No. 53, Ex. 8 at para. 3.) Detective Brian Lewis conducted a post- Miranda interview with Defendant, during which Defendant made no mention that a search of his vehicle had occurred at any time. ( Id. ) Detective Lewis states that he did not search the Cadillac during this visit, nor at any other time prior to the issuance of the search warrant the next day. ( Id. at 5.) After his interview with Defendant, Detective Lewis drafted an eighteen-page affidavit for a search warrant consisting mostly of the evidence law enforcement had amassed on Defendant prior to his arrest, in addition to Deputy Phillips' account of the arrest and his observation of three phones (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9 at 3). (Declaration of Brian Lewis, Dkt. No. 53, Ex. 8 at para. 4.)
A King County Superior Court Judge issued a search warrant the next day, on June 6th, 2013. Pursuant to the warrant, Detective Lewis and another detective traveled up from Kent to the Snohomish South Precinct, went to the Cadillac (still sealed, they state, with the evidence tape that Deputy Phillips had placed and initialed on the vehicle's arrival the day before), took pictures, and searched the Cadillac. ( Id. at para. 5.) Detective Lewis states that he saw three phones in plain sight, including the phone in the driver's door pocket. ( Id. at para. 6.)
Defendant has been in custody since his June 5th, 2013 arrest. (Motion to Suppress, Dkt. No. 49 at 2.) He was originally charged in King County Superior Court on state law charges analogous to those he is currently facing in this Court. ( Id. ) The U.S. Attorney's Office filed a complaint on February 27, 2014, and the state charges were dismissed on March 5, 2014. ( Id. ) Defendant pleads Not Guilty.
II. DEFENDANT'S MOTION TO COMPEL PRODUCTION OF BRADY MATERIALS
A. The Brady Standard
A criminal defendant's due process rights obligate the prosecution to disclose information that is favorable to the defendant and that is "material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). For the Government's Brady obligations to attach, the information at question must be in the knowing possession (actual or constructive) of the Government, and such information must be material to exculpating the defendant.
Possession. The Government is only required to disclose information to the defense "[i]f [the] federal prosecutor has knowledge of and access to exculpatory information as defined in Brady. " United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989). See also United States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) ("The prosecution must only reveal information that it had in its possession or knowledge - whether actual or constructive."). The Ninth Circuit has held that the "prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." Bryan, 868 F.2d at 1036. As the Government correctly points out in its Response to Defendant's Motion to Compel, Brady does not impose on federal prosecutors the obligation to obtain and disclose information that is not already in the actual or constructive possession of the Government, but rather in the hands of non-federal-agency third parties.
Materiality. Defense correctly states that favorable evidence for Brady purposes includes both exculpatory and impeachment evidence. See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). But mere "favorableness" to the defendant is not enough to qualify for Brady protections - the information must also be material. As the Defense correctly states, evidence "is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (emphasis added). Thus, favorableness must be evaluated in the light of utility to the defendant in preparation for or at trial.
It is important to note that courts have generally accepted both federal prosecutors' good faith averments that the information they have is not exculpatory, and that certain exculpatory evidence is not in their possession. This does not contradict the Defense's contentions that if evidence is arguably exculpatory, it is improper for a prosecutor to unilaterally withhold it on the grounds that it is not truly useful. ( See Defendant's Motion to Compel, Dkt. No. 48 at 7.) But as the U.S. Supreme Court explained in a case similarly involving Brady disclosures and the confidential information of the alleged minor victims:
[T]he Pennsylvania Supreme Court... apparently concluded that whenever a defendant alleges that protected evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State's interest in confidentiality. We cannot agree. A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held-even in the absence of a statute restricting disclosure-that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady, it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other [specific, actually in existence, and possessed by the government] exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. There is no general constitutional right to discovery in a criminal case, and Brady did not create one.
Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) (internal citations omitted) (emphasis added).
Bearing in mind the body of precedent by which this Court is bound, we now turn to Defendant's various Brady requests.
B. Defendant's Specific Requests for Brady Materials
1. "Copies of any and all plea agreements or agreements of immunity or agreements of any kind of prosecutorial forbearance, assistance, waiver of charges, sentence recommendations, or incentives made with any and all persons involved with this investigation, whether made by federal, state, or local authorities, including, but not limited to, alleged victims and witnesses."
Defense claims that
[T]he fact that these women have allegedly confessed to committing the criminal act of prostitution leads Defense to the unescapable conclusion that someone in law enforcement has both explained to them the possible legal consequences of their activities to themselves, and given them assurances they will not be prosecuted if they make statements implicating other people, specifically Mr. Bonds. These women obviously have the potential for many motives to deflect blame from themselves and to minimize their responsibility for their own criminal actions.
(Defense Motion to Compel, Dkt. No. 48 at 9.)
If such agreements existed, they would likely be favorable and material to the Defense, as they would provide an important means of impeaching witnesses with evidence of bias. However, the possession requirement for a Brady obligation has not been met. This is because the Government certifies in their Response to the Court, that "no such agreements exist... there is no such evidence to disclose." (Government's Response to Defendant's Motion to Compel, Dkt. No. 56 at 6.) Defense offers no concrete evidence to the contrary. Given the governing law on possession, explained in Section IIA, supra, the fact that the Government avers it does not possess these materials, as they do not exist, and the deference with which courts are instructed to treat Government averments of non-possession,  the Court denies this request.
2. "Copies of all criminal histories of all alleged victims and witnesses, including but not limited to arrest records that did not result in filed or prosecuted charges, charges that were diverted, suspended, or otherwise disposed of in a matter other than guilty plea and sentence, and any and all arrests and charges in this or any other federal, state or local jurisdiction."
Copies of the full criminal histories of all alleged victims is sought to "provide essential cross-examination material" to the Defense. (Defense Motion to Compel, Dkt. No. 48 at 9.) However, the Defense admits that the Government has already "provided... the criminal histories of JF1, JF2, and FVI." ( Id. at 5.) Thus, in this item, Defense is seeking the "arrest records that did not result in filed or prosecuted charges, charges that were diverted, suspended, or otherwise disposed of in a manner other than a guilty plea or sentence, and any and all arrests and charges in this or any other federal, state, or local jurisdiction." ( Id. )
The Government does not dispute that it is in possession of or has access to these records. Instead, the Government takes issue with the materiality of these records because, they maintain, under the Federal Rules of Evidence, such non-conviction evidence would be inadmissible for the Defense's attested purpose of impeachment. (Government's Response to Defendant's Motion to Compel, Dkt. No. 56 at 7.)
The Government is correct in stating that Rule 609 only allows for the introduction of criminal history of the sort that the Government has already released to Defendant, (i.e., criminal history which resulted in a criminal conviction), and in stating that under Rule 608, extrinsic evidence is not admissible to prove specific instances of misconduct. However, Rule 608 expressly provides that "the court may, on cross-examination, allow [non-conviction specific instances of conduct] to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness." Fed.R.Evid. 608. As explained in Section IIA, supra, "material" information, for Brady purposes, includes, inter alia, information that will " assist  impeachment." See Lloyd, 992 F.2d at 351. It is true that an arrest record might well constitute inadmissible extrinsic evidence of specific instances of untruthfulness, but the Court is not now ruling on the admissibility of any evidence. And, it is cognizable that such arrest records may alert Defendant to a specific act of dishonesty by the alleged victim-witnesses, which may be admissible in the form of a cross-examination question, without the support of extrinsic evidence. Thus, this information does promise some assistance to the Defense in terms of impeachment preparation, establishing its materiality. Therefore, the Court grants Defendant's motion for this additional criminal history information, but only to the extent that the Government actually possesses or has access to such information, in accordance with the Bryan standard discussed in Section IIA, supra. The Prosecution is under no obligation to subpoena this information on behalf of the Defense if it is not in the Government's possession.
3. "Copies of any and all CPS investigations of alleged juvenile victims and/or witnesses, whether resulting in founded or unfounded allegations, and whether or not ongoing at this time. "
The Defense believes there are likely to be Child Protective Services records of the alleged victim-witnesses, for one, because JV1's mother had reported her as a runaway. (Defense Motion to Compel, Dkt. No. 48 at 8.) The Government responds that it does not have these materials "in its possession and does not intend to obtain any such records." (Defense Motion to Compel, Dkt. No. 48 at 5.)
Leaving aside questions of materiality and privilege, Child Protective Services is not a "federal agency participating in the same investigation of the defendant, " Bryan, 868 F.2d at 1036, and the records CPS alone possesses cannot be construed as being in the possession of the Government. Further, the Court finds Ritchie, in which the U.S. Supreme Court upheld the denial of that defendant's Brady request for Pennsylvania Child and Youth Services records, particularly on point and precedential. Given this governing law, the fact that the Government avers it does not possess nor seeks to possess these materials, and the deference with which courts are instructed to treat Government averments of non-possession,  the Court denies Defendant's request as to the CPS records of which the Government is not, as they state, in possession.
4. "Copies of all school records of alleged juvenile victims and/or witnesses, including but not limited to disciplinary records, whether resulting in disciplinary action or not. "
The Defense does not articulate with specificity what it hopes to glean from these school records, but the Court presumes such information is sought for impeachment purposes. The Government has already provided the Defense with "two reports from the Kent School district regarding the interview with JV2 concerning JV1." (Defense Motion to Compel, Dkt. No. 48 at 5.) The Government states that it does not have any records beyond these two reports "in its possession and does not intend to obtain any such records." (Defense Motion to Compel, Dkt. No. 48 at 5.)
Again leaving aside questions of materiality and privilege, this Court presumes that the schools that the alleged victim-witness have attended are not run by "federal agencies participating in the same investigation of the defendant, " Bryan, 868 F.2d at 1036. Thus, the Prosecution cannot be said to possess or have access to these materials.
Given this governing law, the fact that the Government avers it does not possess and does not seek to possess these additional school records, and the deference with which courts are instructed to treat Government averments of non-possession,  the Court denies Defendant's request as to the school records of which the Government is not, as they state, in possession.
5. "Copies of all mental health records of alleged victims and/or witnesses, whether in this state of any other and whether or not ongoing. "
The Defense does not articulate with specificity what it hopes to glean from these mental health records, but the Court presumes such information is sought for impeachment purposes. The Defense not unreasonably assumes that mental health records exist for the alleged victim-witnesses, as one of the two youths has allegedly already been the victim of another, apparently unrelated, sexual assault. (Defense Motion to Compel, Dkt. No. 48 at 8.) The Government responds that it does not have these mental health records "in its possession and does not intend to obtain any such records." (Defense Motion to Compel, Dkt. No. 48 at 5.)
Again leaving aside questions of materiality and privilege, this Court presumes that the mental health institutions that may or may not have records of the alleged victim-witnesses or of FV1 are not run by "federal agencies participating in the same investigation of the defendant, " Bryan, 868 F.2d at 1036. The Prosecution cannot be said to possess or have access to these materials, to the extent that this presumption is true.
Given this governing law, the fact that the Government avers it does not possess and does not seek to possess these mental health records, and the deference with which courts are instructed to treat Government averments of non-possession,  the Court denies Defendant's request as to the mental health records of which the Government is not, as they state, in possession.
6. "Copies of all records of visits to school medical faculties whether to doctor or nurse, and any and all referrals to outside medical facilities. "
The Defense does not articulate with specificity what it hopes to glean from these medical records, but the Court presumes such information is sought for impeachment purposes. The Defense not unreasonably assumes that medical records exist for the alleged victim-witnesses, as one of the two youths has allegedly already been the victim of another, unrelated sexual assault and FV1 has "convictions for drugs." (Defense Motion to Compel, Dkt. No. 48 at 8, 9.) The Government responds that it does not have these mental health records "in its possession and does not intend to obtain any such records." (Defense Motion to Compel, Dkt. No. 48 at 5.)
Again leaving aside questions of materiality and privilege, this Court presumes that the school and outside medical facilities that may or may not have medical records of the alleged victim-witnesses or of FV1 are not run by "federal agencies participating in the same investigation of the defendant, " Bryan, 868 F.2d at 1036. Thus, the Prosecution cannot be said to possess or have access to these materials, to the extent that this presumption is true.
Given this governing law, the fact that the Government avers it does not possess and does not seek to possess these medical records, and the deference with which courts are instructed to treat Government averments of non-possession,  the Court denies Defendant's request as to the medical records of which the Government is not, as they state, in possession.
7. "Request to Compel Victim Interviews"
In its introduction to the Motion to Compel, Defendant asks this Court to order the Government to "make" JV1, JV2, and FV1 "available for defense interviews." (Defendant's Motion to Compel, Dkt. No. 48 at 1.) The Court found in Defendant's Motion no explanation of the legal justification for this, nor claims that the alleged victims themselves are Brady "materials." Further, this request was not included in Defendant's list of six enumerated and specific Brady requests included in the Memorandum accompanying the Motion. (Defendant's Motion to Compel, Dkt. No. 48 at 4-5.) Neither is this request reiterated or explained anywhere in the Memorandum. But regardless of Defense's justification for such a request, there is strong U.S. Supreme Court and Ninth Circuit precedent that a witness has an absolute right to deny either party a pretrial interview. As the two witnesses do not wish to speak to Defense (Government's Response to Defendant's Motion to Compel, Dkt. No. 56 at 4), this request is denied.
III. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
A. Alleged Unlawful Search
Defendant alleges that the police conducted an unlawful, warrantless search of his vehicle, and argues that all evidence produced during this alleged unlawful search as well as all evidence produced during the allegedly-subsequent warranted search should be suppressed pursuant to the exclusionary rule and the fruit of the poisonous tree doctrine.
1. Standard for Establishing Evidentiary Taint
Defendants wishing to suppress evidence have the initial burden, first of proving with "specific evidence" that an unlawful search occurred, and second, that the evidence they wish to suppress under the exclusionary rule or fruit of the poisonous tree doctrine is the product of the unlawful search or seizure. As part of this second showing, the defendant must at least "establish a factual nexus between the illegality and the challenged evidence." United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980). After this point, the burden "shifts to the government to show that it acquired its evidence from an independent source." Cella, 568 F.2d at 1284-85. See also United States v. Polizzi, 500 F.2d 856, 910 (9th Cir. 1974).
2. Defendant's Specific Allegations
Defendant alleges that one warrantless automobile search occurred prior to the King County Superior Court Judge's issuance of the search warrant for Defendant's Cadillac. Specifically, Bonds claims that while "he was sitting in the booking area" he "observed the police opening the door to [his] car and going thru everything inside of it shortly after he was brought to the station for booking" and his car had been towed there. (Defendant's Motion to Suppress, Dkt. No. 49 at 3-4.) The only support Defendant proffers for this alleged first, warrantless search is a) his unsworn statement to counsel that this occurred and b) the argument that some of the information contained in the affidavit Detective Lewis presented to the King County Superior Court prior to the warranted search could have only been known to the Detective if the Cadillac had already been searched, without a warrant.
Defense's latter argument proceeds as follows. The eighteen-page affidavit that Detective Lewis presented to the King County Superior Court included the statement from Deputy Phillips that he had seen three cell phones in Defendant's Cadillac when he made contact with the Defendant in the restaurant parking lot. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9 at 8.) The pictures taken during the June 6th execution of the search warrant show two cell phones in positions in the car in which they would be readily and immediately visible to anyone approaching the car and looking in through the window. (Dkt. 49, Ex. B.) The third phone was found, during the execution of the search warrant, in the driver door pocket. (Dkt. No. 49, Ex. C; Dkt. No. 53, Ex 5.) Defense claims this phone would have been out of sight to anyone who had not searched the car - "there is no way Deputy Phillips could have seen the third cell phone unless he opened the car door and removed it from its hiding place." (Defendant's Motion to Suppress, Dkt. No. 49 at 3-4.) Thus, Defense claims that the police must have performed an illegal search of Defendant's car, a search that he claims to have witnessed first-hand while sitting in the booking area (after he had been driven to the South Precinct by Deputy Phillips and his car had been towed there). (Defendant's Motion to Suppress, Dkt. No. 49 at 3-4.) Defense then implies that the police used the information that there was a third phone in the door pocket to obtain the search warrant. In short, Defense's argument is that the affidavit sworn to obtain the search warrant included statements that could have only been made if a search had already occurred, thus, an unwarranted search occurred.
This foregoing argument is Defendant's only substantiation of the alleged warrantless search of his car. And this alleged warrantless search is Defense's ground for claiming the need to suppress all subsequently found evidence under the exclusionary rule and the fruit of the poisonous tree doctrine.
3. Defense's Failure to Meet the Initial Suppression Burden
However, Defense fails to meet the initial burden explained in Section III(A)(1), supra. Defense's aforementioned argument is insufficient to satisfy the Nardone/Cella/Kandick requirements of proving an illegal search with "specific evidence, " and of showing that the evidence in question (which, implies Defense, is nearly all the evidence in this case), shares a "factual nexus" with the alleged but unproven warrantless search on June 5th 2013.
It is temporally and factually impossible for Defense's argument to substantiate Defendant's claim that the Cadillac was illegally searched at the police station while he watched from the booking area (the only claim of a warrantless search made by Defendant). The key problem with Defense's argument, as the Government points out, is that Deputy Ryan Phillips avers that he called Detective Brian Lewis to report his observation of three cell phones before the Cadillac was even transported to the South Precinct station (Declaration of Ryan Phillips, Dkt. 52, Ex. 7 at paras. 7-11), the only place Defendant claims the alleged warrantless search took place. As Deputy Phillips states in his sworn Declaration, after the situation with Defendant escalated, a backup law enforcement officer arrived at the restaurant and detained Defendant. Still in the parking lot of the Everett restaurant, with both Defendant and the car still present, Deputy Phillips
[C]alled Kent Police Department Detective Brian Lewis to let him know that I had contacted the suspects listed in his bulletin.... Detective Lewis asked [Deputy Phillips] whether [he] had seen anything in the car while contacting the driver and passenger. I told him about seeing phones in the car along with the white phone in the lower pocket of the driver's door. It was clearly visible from the passenger side of the car while I was in contact with the driver and the passenger. This white phone is reflected in the Exhibits 4-6. I did not go in the car or search it at any time. I placed Nathan Bonds, in my vehicle, for transport to Snohomish County South Precinct. After calling dispatch, a tow operator with Mary's Tow arrived. I remained on the scene while the tow operator connected the car to the tow truck. I do not recall the tow operator conducting a search of the car or otherwise even entering the interior of the car... I then transported Bonds and followed the tow driver and Bond's car to the Snohomish County South Precinct [where Defendant alleges the warrantless search took place]. I watched the tow driver park the car in the parking bay. After doing do, as is our practice and policy, I placed evidence tape over the doors, hood and trunk and wrote my initials... Again, at no time did I enter the vehicle or otherwise search it. To my knowledge, the car remained intact and sealed until Detective Brian Lewis executed the search warrant.
(Declaration of Ryan Phillips, Dkt. 52, Ex. 7 at paras. 7-11.) It cannot be true that Deputy Ryan Phillips reported evidence gleaned from a warrantless search at the South Precinct to Detective Lewis for Detective Lewis' use in an affidavit, when Deputy Phillips reported such evidence before either Deputy Phillips, Defendant, or Defendant's car had even departed the restaurant parking lot for the South Precinct.
Moreover, Defense has not shown "with specific evidence" that the third phone in the driver's side pocket could not be seen from Detective Phillip's position outside the Cadillac sedan's passenger side, at the restaurant lot. First, while the third phone was in the driver's door pocket when the car was searched on June 6th, this does not necessitate the conclusion that the phone was in the driver's door pocket continuously from the moment that Deputy Phillips approached the car. Deputy Phillips spoke with Defendant and FV1 for several moments before the situation became tense and Deputy Phillips decided that safety concerns necessitated him to draw his gun and to call for backup. (Deputy Phillips Declaration, Dkt. 52, Ex. 7 at para. 4.) Before the situation had escalated, Defendant and FV1 were eating the food they had just bought at the restaurant. ( Id. ) It is possible that Deputy Phillips saw the third phone, and then Defendant placed it in the door pocket, before the situation became tense and Deputy Phillips became more attuned to Defendant's movements.
Second, even if the third phone was in the driver's door pocket when Deputy Phillips approached the car and remained in there until the car was lawfully searched on June 6th, Defense has in no way shown that the phone was "completely out of sight" to Deputy Phillips when he was standing outside the passenger side of the Cadillac, looking into the sedan through the rolled-down passenger side window. Defense emphasizes Pictures 59 and 60 of the photographs taken during the June 6th execution of the warrant. (Dkt. No. 49, Ex. C.) However, reference to other photographs show the Cadillac, a 2005 deVille, to be a low-slung, four-door sedan. (Dkt. No. 52, Exs. 1, 4.) Although the issue is not presently before the Court, it does not seem at all impossible that Deputy Phillips, as he claims,  saw the phone in the pocket from outside the car, on the opposite side, depending on the position of the phone in the pocket, the size of the phone (an HTC), Defendant's size, Defendant's position in the seat, the position of the driver's seat, and Deputy Phillips' height. The photographic evidence with which the Government presents the Court supports this. ( See Government's Response to Defendant's Motion to Suppress, Dkt. No. 52, Exs. 1, 4, 5.)
Given these temporal impossibility problems and factual insufficiencies, the Court cannot conclude that Defense has met its burden of "establishing a factual nexus between the alleged illegality and the challenged evidence, " much less its threshold burden of proving with "specific evidence" that an unlawful search occurred. Thus, the Court denies Defendant's Motion to Suppress.
B. Request for Evidentiary Hearing
An evidentiary hearing to demonstrate the "factual nexus" between an unlawful search and evidence the defendant seeks to suppress is, at best, premature when defendant has yet to show that an unlawful search occurred. Nor is an evidentiary hearing required even if it has been determined that an unlawful search has occurred - " Alderman does not automatically require a hearing to determine the existence or absence of taint." Kandik, 633 F.2d at 1335 (upholding the district court's denial of an evidentiary hearing to show taint when the fact that an unlawful search had taken place was undisputed and the connection between the evidence and the unlawful search was obvious). Given the lack of substantiation for the alleged unlawful search of the Cadillac, this Court does not find an evidentiary hearing on the topic necessary.
Further, Defense is not entitled to an evidentiary hearing on the grounds that they allege that Detective Lewis provided false information in his affidavit to the King County Superior Court Judge who issued the warrant. (This false information, Defense claims, was Deputy Phillip's statement to Detective Lewis that he had seen three phones in the car at the restaurant.) A defendant is entitled to an evidentiary hearing only if "he makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A "detailed offer of proof" of the false statements must be proffered by the defendant. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983). Defense fails to meet this standard.
First, for the reasons articulated in Section III(A)(3), supra, Defense has not made a substantial preliminary showing that Deputy Phillips' statement that he could see the phone in the door pocket was false, making Detective Lewis' report of such statement false as well.
Second, even if Defense had shown that Deputy Phillips could not possibly have seen the third phone from his vantage point, and that the phone was in the door pocket from the very beginning of Defendant's encounter with Deputy Phillips, Defense has offered no evidence that such an alleged false affidavit statement was made knowingly and intentionally, or with reckless disregard for the truth. Detective Lewis, not Deputy Phillips, was the affiant and there is nothing to suggest, even if Deputy Phillips' statement about seeing three phones was false, that Detective Lewis, who was not on the scene, would have either known this or been reckless in believing his fellow officer.
Third, and most importantly, Defense does not allege, nor does the Court see how it could, that whether there were three phones or two phones initially sighted in the car would have made any difference in the King County Superior Court Judge's decision to grant a warrant. It seems much more likely that the Judge based her decision to grant the warrant/found probable cause based on evidence put forth in the affidavit including, but not limited to, the text message conversations between Defendant and JV1 that JV1's mother had sent the police, JV2's descriptions and photo identification of Defendant to the police, a report of JV2's interview with the police, reports of police interviews with staff at motels to which Defendant took JV1 and JV2, and descriptions of surveillance videos of Defendant and JV1 and JV2 around Oregon and Washington, rather than on the statement that there were three phones in Defendant's car when Deputy Phillips made contact. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9.)
Thus the Court finds that an evidentiary hearing is neither mandated nor would it be useful, and denies Defendant's request.
For the foregoing reasons, the Court DENIES all but Defendant's second request in Defendant's Motion to Compel (Dkt. No. 48), GRANTS IN PART Defendant's second Brady request for the complete criminal histories of the witnesses that are in the possession of the Prosecution, DENIES Defendant's Motion to Suppress (Dkt. No. 49), and DENIES Defendant's request for an evidentiary hearing on the Motion to Suppress.