Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Arizona State Bar No. 013439 United States Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Robert Johnston, et al., Defendants. RESPONSE TO DEFENDANTS JAIME AND WATKINS' MOTIONS TO SUPPRESS EVIDENCE

The United States of America, by and through undersigned counsel, hereby responds to

16 Defendants Jaime and Watkins' Motions to Suppress Evidence and, for the reasons stated in the 17 attached Memorandum of Points and Authorities, respectfully requests that this Court deny the 18 same. 19 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney Respectfully submitted this 13th day of January, 2006.

Case 2:03-cr-01167-DGC

Document 1048

Filed 01/13/2006

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION 3 Pending before the Court are Defendants Jaime and Watkins' Motions to Suppress. In

4 Defendant Jaime's Motion to Suppress, he moves this Court to suppress evidence seized during 5 the execution of a search warrant at his residence on July 8, 2003, on the grounds that the 6 officers executing the search warrant violated the knock and announce requirement by the Fourth 7 Amendment and 18 U.S.C. §3109. 1/ Defendant Watkins, in his Motion, moves to suppress

8 statements he made subsequent to the service of an arrest warrant at his residence on the same 9 grounds. 10 As set forth more fully below, because the search warrant served at Defendant Jaime's

11 residence was done in a reasonable manner, his Motion must be denied. Additionally, 12 notwithstanding the manner in which Defendant Watkins' arrest warrant was served, because 13 his statements provided to law enforcement officers were not the product of the alleged illegal 14 governmental activity, his Motion must likewise be denied. 15 II. BACKGROUND 16 From approximately December 2001 through July 2003, a multi-agency task force led by

17 the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted an investigation 18 of members and associates of the Hells Angels Motorcycle Club ("HAMC"). During the 19 investigation, agents identified several members of the HAMC who participated in or conspired 20 to participate in the affairs of the HAMC through a pattern of racketeering activities including 21 22 23 24 25 26 27 28
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The "knock-and-announce" principle, codified at 18 U.S.C. §3109, provides as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

See also,United States v. Reilly, 224 F.3d 986, 991 (9th Cir.2000). In United States v. Peterson, 353 F.3d 1045, 1051 (9th Cir.2003), the Ninth Circuit held that exigent circumstances justifying no-knock entries under the Fourth Amendment are equally relevant in the §3109 context.

1 murder, conspiracy to commit murder, witness tampering, and dealing and conspiring to deal in 2 controlled substances. Defendants Jaime and Watkins were among the members of the HAMC 3 identified as participants in the racketeering activities. On July 2, 2003, United States

4 Magistrate Judge David K. Duncan authorized a search warrant for the residence of Rudy Jaime 5 located at 5041 N. Roadrunner Dr., Prescott Valley, Arizona. The warrant provided authority 6 to officers to search for weapons, drugs, indicia of association with the HAMC along with other 7 items and allowed the warrant to be served at any time in the day or night. On July 8, 2003, just 8 before 5:00 in the morning, officers with the Department of Public Safety's ("DPS") tactical 9 team executed the search warrant at Defendant Jaime's residence. 10 Also on July 8, 2003, at approximately 5:20 in the morning, officers with the Oro Valley

11 Police Department's SWAT team made entry into the home of Henry Watkins located at 1610 12 S. Country Club Road, Tucson, Arizona to arrest him pursuant to a previously issued federal 13 arrest warrant. No items of evidence were seized during the execution of Defendant Watkins' 14 arrest warrant. Following his arrest and after he was advised of his Miranda warnings, 15 Defendant Watkins was interviewed by ATF Agent Frank Ortiz. 16 III. LEGAL ANALYSIS 17 The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure

18 in their persons, houses, papers, and effects, against unreasonable searches and seizures." In 19 Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914 (1995), recognizing "the longstanding 20 common-law endorsement of the practice of announcement," the Supreme Court held that "the 21 method of an officer's entry into a dwelling [is] among the factors to be considered in assessing 22 the reasonableness of a search or seizure." Id. at 934, 115 S.Ct. at 1918. The Wilson court 23 emphasized that not every entry must be preceded by an announcement. Id. Rather, "[t]he 24 Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a 25 rigid rule of announcement that ignores countervailing law enforcement interests." Id. 26 In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416 (1997), the Court recognized that

27 although the knock-and-announce principle generally requires the police to announce their intent 28 to search before entering closed premises, "the obligation gives way when officers have a
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1 reasonable suspicion that knocking and announcing their presence, under the particular 2 circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of 3 the crime by, for example, allowing the destruction of evidence." Id. at 394, 117 S.Ct. 1416. 4 (emphasis added). "This showing is not high, but the police should be required to make it 5 whenever the reasonableness of a no-knock entry is challenged." Id. at 394-95; 117 S.Ct. 1416. In United States v. Combs, 394 F.3d 739 (9th Cir.2004), the Ninth Circuit explained, "[t]o 6 7 determine whether an entry is reasonable, we must consider all the circumstances surrounding 8 the entry, including, but not limited to officer safety, time of day, destructibility of evidence, the 9 size of the residence, the nature of the offense, and any other observations by law enforcement 10 that would support a forced entry. Id. at 745 (internal citations omitted). 11 12 A. Officers' Entry into Defendant Jaime's Residence was Reasonable Defendant Jaime claims that the evidence seized during the search of his residence must

13 be suppressed since law enforcement's entry into his residence was unreasonable. However, 14 Defendant's claim is not supported by the evidence. 15 During the investigation, Jaime provided methamphetamine to undercover agents on one 16 occasion. On another occasion, Jaime arranged for his drug source to sell a quantity of 17 methamphetamine to the CI, an ATF confidential informant. Also on this occasion, while armed 18 with a Smith and Wesson nine millimeter pistol, Jaime was observed purchasing a quantity of 19 methamphetamine and marijuana. During another incident less than one month prior to the 20 execution of the search warrant at his residence, in the presence of the CI, Jaime purchased an 21 ounce of suspected marijuana from another drug supplier. Again on this occasion, Jaime was 22 armed. On July 6, 2003, prior to the execution of the search warrant, officers with the DPS's 23 24 tactical team attended a pre-briefing during which they learned that Defendant Jaime is a known 25 member of the Hells Angles motorcycle gang. He is known to be a drug user and possessor of 26 weapons. Tactical officers were told that, during the investigation, Jaime was observed with 27 a semi-automatic handgun and JAIME also told an undercover agent that he keeps a loaded 28 shotgun near the entrance of his home. He has arrests for, among other things, unlawful flight
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1 from police officers, possession of marijuana and dangerous drugs. Defendant Jaime's home 2 is an approximately 1400 square foot, single family, single story residence. 3 On July 8, 2003, at approximately 4:45 a.m., a DPS tactical team consisting of 13 officers 4 approached Defendant Jaime's residence. The entry team, led by Detective Anderson and 5 Officer Good, approached on foot up the driveway towards the front door of the residence. 6 Officer Good opened the unlocked screen door to access the solid wood door and began 7 knocking on the front door while announcing "police search warrant." At this same time, an 8 officer in a marked patrol unit began announcing over the public address system in his vehicle 9 "police search warrant." Officer Good continued to knock and announce for approximately 10 thirty seconds which he counted to himself. After no response at the front door, Detective 11 Herrick, another entry team member, began to breach the door. Detective Herrick struck the 12 door once with the ram which caused the door to open. At this time, the entire entry team 13 entered and secured the residence without incident. 14 The circumstances of this case are analogous to the facts set forth in United States v. 15 Banks, 540 U.S. 31, 124 S.Ct. 521 (2003), the most recent Supreme Court decision analyzing 16 the knock and announce principle. In Banks, after the defendant sold cocaine to undercover 17 officers, Las Vegas Police officers obtained a search warrant for the defendant's apartment to 18 search for weapons, drugs and drug paraphernalia. Once officers arrived at the defendant's two19 bedroom apartment, they knocked on the door and waited approximately 15 to 20 seconds before 20 they broke down the door with a battering ram. Once inside, they encountered the defendant 21 who had just exited the shower. Id. at 33, 124 S.Ct. at 524. Banks moved to suppress the 22 evidence seized during the search of his apartment claiming that the officers waited an 23 unreasonably short period of time before forcing entry. The district court denied Bank's motion. On appeal, the Ninth Circuit reversed finding that the 15 to 20 second delay was 24 25 insufficient to satisfy the constitutional safeguards. Id. at 35, 124 S.Ct. at 524. The Supreme 26 Court granted certiorari to address the standard of reasonableness of the length of time police 27 with a warrant must wait before entering without permission after knocking and announcing. 28 Id. In reversing the Ninth Circuit and concluding that 15 to 20 seconds was a reasonable period
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1 of time to wait before forcing entry, the Court emphasized, "[t]he `reasonableness' of a particular 2 use of force must be judged from the perspective of a reasonable officer on the scene, rather than 3 with the 20/20 vision of hindsight." Banks, 540 U.S. at 39, 124 S.Ct. at 527. Focusing on the 4 asserted exigency, i.e., the destruction of drugs, the Court determined that 15 to 20 second was 5 not an "unrealistic guess about the time someone would need to get in a position to rid his 6 quarters of cocaine." Id. at 40, 124 S.Ct. at 527; see also United States v. Goodson, 165 F.3d
Th 7 610, 612, 614 (8 Cir.1999)(holding 20-second wait after loud announcement at a one story 8 ranch reasonable); United States v. Spriggs, 996 F.3d 320, 322-323(C.A.D.C.1993)(holding that

9 a 15-second wait after a reasonably audible announcement at 7:45 a.m. on a weekday st 10 reasonable); United States v. Garcia, 983 F.2d 1160, 1168 (1 Cir.1993)(holding that a 1011 second wait after a loud announcement reasonable). Similarly here, officers were present at Defendant Jaime's home to execute a search 12 13 warrant to seize, among other items, drugs and weapons. The warrant in this case was served 14 first thing on a Tuesday morning. Defendant's residence was small and would have allowed for 15 imminent disposal of drugs. Officers continued to knock and announce their presence for an 16 entire 30 seconds with no response from anyone inside before forcing entry into the residence. 17 In light of all the circumstances in this case, keeping in mind the exigency of preventing the 18 disposal of drugs or weapons, the entry by officers into Defendant's residence was reasonable. 19 Because the execution of the search warrant at Defendant Jaime's residence was reasonable and, 20 thus, in compliance with the requirements of the Fourth Amendment and §3109, the Court must 21 deny Defendant Jaime's Motion to Suppress. Alternatively, even if this Court were to determine that officers' entry into Defendant 22 23 Jaime's residence was unreasonable, the exclusionary rule should not preclude the admission of 24 the evidence since it was seized pursuant to a lawful search warrant. Although this issue has not 25 been squarely addressed by the Ninth Circuit, in United States v. Espinoza, 256 F.3d 718, 726 th 26 (7 Cir.2001), the Seventh Circuit refused to apply the exclusionary rule to evidence seized 27 following an illegal entry into the defendant's residence where officers failed to comply with the 28 knock and announce requirements of the Fourth Amendment. Specifically, the Espinoza court
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1 determined that the exclusion of evidence was a disproportionately severe and inappropriate 2 sanction for a knock and announce violation since the violation caused no discernable harm to 3 the interests of the individual protected by the particular constitutional prohibition i.e., the knock 4 and announce requirement. Id. at 725; but see United States v. Dice, 200 F.3d 978, 986 (6th Cir. 5 2000) (holding that suppression of the evidence is the constitutionally mandated remedy for a 6 violation of the Fourth Amendment "knock and announce" requirement). During this term, 7 in Hudson v. Michigan, 125 S.Ct. 2964 (2005), the Supreme Court granted certiorari to resolve 8 the conflict between the circuits on the issue of whether evidence seized pursuant to a valid 9 search warrant must be suppressed when officers executing the warrant violate the Fourth 10 Amendment's knock and announce requirement. As of the date of this pleading, no decision has 11 been issued by the Supreme Court. 12 13 14 B. Defendant Watkins' Statements Are Not the Product of Any Illegal Governmental Activity

Defendant Watkins moves this Court to suppress statements he provided to police after the

15 service of an arrest warrant at his home on the basis that officers failed to comply with the 16 Fourth Amendment and §3109's knock-and-announce requirement. Although his Motion does 17 not specifically so state, Defendant Watkins appears to claim that his statement should be 18 suppressed as "fruits" of the alleged unreasonable entry into his home. Without addressing 19 whether the service of Defendant's arrest warrant was reasonable under the Fourth Amendment 20 and §3109, Defendant Watkins' Motion must be denied since his statements were not the product 21 of the alleged illegal governmental activity. On July 7, 2003, SWAT team members from the Oro Valley Police Department attended 22 23 a briefing relating to the service of warrants, including the arrest warrant for Henry Watkins, 24 being served the following morning. During the briefing, officers were informed that Watkins 25 was a suspected methamphetamine addict and known to possess weapons. Additionally, 26 officers were informed that during the investigation, Watkins sold methamphetamine and 27 weapons to undercover operatives. On July 8, 2003, at approximately 5:20 in the morning, 28 officers approached Watkins' residence, knocked on the front door and announced their
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1 presence. After waiting approximately 10 seconds, officers forced entry. Once the door was 2 breached, officers deployed a noise flash diversionary device. Defendant Watkins was arrested 3 without incident in a back bedroom. It is well established that the Fourth Amendment's exclusionary rule applies to statements 4 5 and evidence obtained as a product of illegal searches and seizures. United States v. Crawford, th 6 372 F.3d 1048, 1054 (9 Cir.2004); Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 7 407 (1963). However, the exclusionary rule requires a causal connection between the illegal 8 conduct and the evidence sought to be suppressed. Crawford, 372 F.3d at 1054. In New York 9 v. Harris, 445 U.S. 573, 100 S.Ct. 1371 (1980), the Supreme Court addressed whether the 10 exclusionary rule applied to statements made by a suspect after officers arrested him without a 11 warrant in his home in violation of the Fourth Amendment. The Harris Court held that nothing 12 in its prior rulings suggested that an arrest in a home without a warrant, but with probable cause, 13 somehow renders unlawful continued custody of the suspect once he is removed from the house. 14 Because the officers had probable cause to arrest the defendant for a crime, he was not 15 unlawfully in custody when he was removed to the station house, given Miranda warnings, and 16 allowed to talk. Id. at 18, 110 S.Ct. 1640. Because the defendant's statements were not the 17 product of the illegal government conduct, suppression of his statements was inappropriate. Id. In United States v. Ladum, 141 F.3d 1328 (9th Cir.1998), the Ninth Circuit considered 18 19 whether the exclusionary rule applied to statements provided by a defendant during the execution 20 of a search warrant subsequently found to be unconstitutionally broad. In rejecting the 21 defendant's suppression request, the Ladum court found that the agents had a legitimate, court 22 authorized reason for being present when the defendant's questioning took place, and thus, the 23 defendant's statements were not the product of the illegal government activity. Id. at 1337. Here, officers had a valid federal warrant for Watkins' arrest and they were lawfully 24 25 permitted to be in Watkins' residence for the purpose of effectuating his arrest. It simply cannot 26 be argued that Defendant Watkins' statements were the product of the alleged governmental 27 activity, namely, failing to comply with the knock and announce requirement. For this reason, 28 the Court must deny Defendant Watkins' Motion to Suppress.
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1 IV. CONCLUSION As set forth above, Defendant Jaime's Motion to Suppress must be denied since the 2 3 execution of the search warrant at his residence was reasonable under the circumstances, and 4 therefore, not in violation of the Fourth Amendment or §3109. Additionally, Defendant 5 Watkins' Motion to Suppress must also be denied since his statements are not the product of the 6 alleged illegal governmental conduct. For these reasons, the United States respectfully requests 7 that Defendants Jaime and Watkins' Motions to Suppress be denied. Respectfully submitted this 13th day of January, 2006. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

1 I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 22 s/ Keith E. Vercauteren KEITH E. VERCAUTEREN 23 24 25 26 27 28
10 Filed 01/13/2006

Case 2:03-cr-01167-DGC

Document 1048

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