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 Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 85004-4408 Arizona State Bar No. 013439 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America No. 03-1167-PHX-DGC Plaintiff, v. Robert J. Johnston, et al., Defendants. The United States, by and through undersigned counsel, hereby responds to Defendants GOVERNMENT'S RESPONSE TO DEFENDANTS SCHAEFER AND JOHNSTON'S JOINT MOTION TO QUASH SEARCH WARRANT

15 Schaefer and Johnston's Joint Motion to Quash Search Warrant. For the reasons stated in the 16 attached Memorandum of Points and Authorities, the United States requests this Court to deny 17 the motion. 18 19 20 21 22 23 24 25 26 27 28
PAUL K. CHARLTON

Respectfully submitted this 13th day of January, 2006.

United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

Case 2:03-cr-01167-DGC

Document 1049

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Filed 01/13/2006

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION 3 By their Motion to Quash, Defendants Schaefer and Johnston seek to suppress items of

4 evidence seized during the search of their residences on July 8, 2003, claiming the affidavit 5 offered in support of the search warrants lacks probable cause. Specifically, Defendants 6 Schaefer and Johnston allege the affidavit fails to provide a nexus between the described 7 criminal activity and their residences and that the information presented in the affidavit is stale. 8 However, as set forth more fully below, suppression of the evidence seized at Defendant 9 Schaefer and Johnston's residences on July 8, 2003, is inappropriate since (1) there was 10 sufficient evidence set forth in the affidavit to support the magistrate judge's finding that the 11 evidence sought would be located at the Defendants' residences and (2) the affidavit was not 12 supported by stale information in light of the evidence of ongoing criminal activities engaged 13 in by the indicted members and associates of the Hells Angles Motorcycle Club ("HAMC"). 14 Additionally, even if probable cause was found to be insufficient, because the officers relied

15 in good faith on the issuance of the warrant, the "good faith" exception to the exclusionary rule 16 bars suppression of the evidence seized from Defendants Schaefer and Johnston's residences. 17 II. BACKGROUND 18 From approximately December 2001 through July 2003, a multi-agency task force led by

19 the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted an investigation 20 of members and associates of the Hells Angels Motorcycle Club ("HAMC"). During the 21 investigation, agents identified several members of the HAMC who participated in or conspired 22 to participate in the affairs of the HAMC through a pattern of racketeering activities including 23 murder, conspiracy to commit murder, witness tampering, and dealing and conspiring to deal in 24 controlled substances. Defendants Schaefer and Johnston were among the members of the 25 HAMC identified as participants in the racketeering activities. On July 2, 2003, Special Agent 26 Slatalla with the ATF swore before Magistrate Judge David Duncan a 117 page affidavit offered 27 in support of several search warrants, including search warrants for the homes of Defendants 28 Schaefer and Johnston. The search warrants were all executed on July 8, 2003. 2
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1 III. LEGAL ANALYSIS 2 3 4 The warrant clause of the Fourth Amendment requires "probable cause, supported by Oath A. There Was a Substantial Basis to Support Magistrate Judge Duncan's Finding of Probable Cause

5 or affirmation" to justify the issuance of a search warrant. U.S. Const. amend. IV. This requires 6 the government to establish by sworn evidence presented to a magistrate judge that probable 7 cause exists to believe that an offense has been committed and that items related to that offense, 8 such as fruits of the crime, will be found on the premises sought to be searched at the time the 9 warrant is issued. Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968); 10 United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988). The role of the reviewing court is to 11 determine whether the magistrate judge had a "substantial basis" upon which to find that 12 probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1983). 13 "Probable cause exists when, considering the totality of the circumstances, there is a fair

14 probability that contraband or evidence of a crime will be found in a particular place." United 15 States v. Ocampo, 937 F.2d 485, 490 (9th Cir.1991) (internal quotations omitted); United States 16 v. Wiegand, 812 F.2d 1239, 1242 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 17 L.Ed.2d 118 (1987). The court need not determine that the evidence sought is actually on the 18 premises to be searched, or even that the evidence is more likely than not to be found there. 19 United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir.1987). Rather, the court need only

20 conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit. 21 Id.; United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). 22 In making its probable cause determination, a magistrate judge may rely on the

23 conclusions of experienced law enforcement officers regarding where evidence of a crime is 24 likely to be found. United States v. Crozier, 777 F.2d 1376, 1380 (9th Cir.1985); United States 25 v. Valenzuela, 596 F.2d 824, 828-29 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 26 L.Ed.2d 1071 (1979). This circuit has recognized that "[d]irect evidence that contraband or 27 evidence is at a particular location is not essential to establish probable cause to search the 28 location." United States v. Angulo-Lopez, 791 F.2d, 1394, 1399 (9th Cir.1986). A magistrate 3
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1 "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the 2 nature of the evidence and the type of offense." Id. 3 A reviewing court must show deference to the magistrates judge's determination of

4 probable cause. United States v. Hernandez, 937 F.2d 1490, 1494 (9th Cir.1991); Fannin, 817 5 F.2d at 1381; see also Gates, 462 U.S. at 236. A magistrate judge's determination of probable 6 cause is reversed only if clearly erroneous. United States v. Alvarez, 358 F.3d 1194, 1203 (9th 7 Cir.2004), citing, United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). In close cases, 8 the reviewing court should give preference to the validity of the search warrant. United States 9 v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847 (1985). 10 Defendants Schaefer and Johnston allege that there were insufficient facts for Magistrate

11 Judge Duncan to find probable cause existed that the evidence sought would be found inside 12 their residences. However, a thorough reading of Agent Slatalla's affidavit reveals ample facts 13 justifying Magistrate Judge Duncan's probable cause determination. Agent Slatalla sets forth in 14 specific detail his belief, based upon his extensive training and experience, why the items to be 15 seized were likely to be found at the residences to be searched. (See Slatalla Affidavit pg 107 16 111). 17 Defendants Schaefer and Johnston also argue that the affidavit was legally insufficient

18 because the information set forth in the affidavit was stale. "Staleness must be evaluated in light 19 of the particular facts of the case and the nature of the criminal activity and property sought." 20 United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991); United States v. Foster, 711 F.2d 871, 21 878 (9th Cir.1983). A search warrant is not stale where "there is sufficient basis to believe, based 22 on a continuing pattern or other good reasons, that the items to be seized are still on the 23 premises." United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034, 105 24 S.Ct. 505, 83 L.Ed.2d 397 (1984). When a search warrant seeks evidence related to an ongoing 25 criminal enterprise, "greater lapses of time are permitted if the evidence in the affidavit shows 26 the probable existence of an activity at an earlier time." Greany, 929 F.2d at 525; see also, 27 United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927 (1988)("the mere 28 lapse of substantial amounts of time is not controlling in a question of staleness"). 4
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In the present case, in light of the types of items being sought and the ongoing nature of

2 the racketeering activities engaged in by members and associates of the HAMC, the evidence 3 offered in support of the search warrant was not stale. 4 After careful review of Agent Slatalla's affidavit as a whole, considering the totality of

5 the circumstances and giving the required deference to the issuing magistrate judge, this Court 6 must find that Magistrate Judge Duncan had a substantial basis for concluding that probable 7 cause existed for the issuance of the warrants in this case. 8 B. 9 10 The "Good Faith" Exception to the Exclusionary Rule Bars Suppression of the Evidence Seized from the Defendants' Residences

However, even if this Court were to conclude that Magistrate Judge Duncan did not have

11 a substantial basis for finding that probable cause existed for the issuance of the warrants in this 12 case, because the officers relied on the warrants in good faith, the evidence seized must not be 13 suppressed. Evidence seized pursuant to a facially valid search warrant which is later held to 14 be invalid may nevertheless be admissible if the officers conducting the search acted in "good 15 faith" and in reasonable reliance on the search warrant. United States v. Leon, 468 U.S. 897, 16 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Supreme Court's goal in establishing the 17 good-faith exception was to limit the exclusionary rule to situations where the illegal behavior 18 of officers might be deterred. See Leon, 468 U.S. at 918, 104 S.Ct. 3405. Although the 19 exception is couched in terms of "good faith," the Supreme Court has "eschew[ed] inquiries into 20 the subjective beliefs of law enforcement officers."United States v. Clark, 31 F.3d 831, 835 (9th 21 Cir. 1994) quoting United States v. Leon, 468 U.S. 897, 922 n. 23, 104 S.Ct. 3405, 3420 n. 23, 22 82 L.Ed.2d 677 (1984). Rather, the inquiry is one of objective reasonableness; i.e., this Court 23 must decide whether a reasonably well-trained officer would have known that this particular 24 search was illegal despite the magistrate judge's authorization. Clark, 31 F.3d 831, 835; see 25 also, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1981). The

26 objective reasonableness is to be determined not only with respect to the officers who executed 27 the warrant, but also to the officer who provided the affidavit upon which the warrant was based. 28 Leon, 468 U.S. at 923, n. 24, 104 S.Ct. at 3420, n. 24. 5
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In the present case, it simply cannot be said that the affidavit submitted in support of the

2 search warrant served in this case was " `so lacking in indicia of probable cause as to render 3 official belief in its existence entirely unreasonable.' " Leon, 468 U.S. at 923, n. 24, 104 S.Ct. 4 at 3420, n. 24at 923, 104 S.Ct. at 3421, quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 5 2254, 2265, 45 L.Ed.2d 416 (1975). 6 Even if this Court were to find that Magistrate Judge Duncan had no substantial basis to

7 support his finding of probable cause, because the officers' reliance on the search warrant was 8 objectively reasonable, pursuant to the good faith exception to the exclusionary rule, suppression 9 of the evidence seized from Defendants Schaefer and Johnston's residences is unwarranted. 10 IV. CONCLUSION 11 The affidavit offered in support of the search warrants served on the homes of Defendants

12 Schaefer and Johnston sets forth sufficient evidence to provide Magistrate Judge Duncan a 13 substantial basis upon which to find that probable cause existed. Because the items sought were 14 evidence of an ongoing criminal enterprise, as adequately established in the affidavit, Magistrate 15 Judge Duncan had a substantial basis to believe the items sought would be at the locations 16 searched. Finally, pursuant to the good faith exception to the exclusionary rule, even if this 17 Court were to find that the challenged search warrants were not supported by probable cause, 18 Defendants' request that the evidence be suppressed must be denied. For these reasons, the 19 United States respectfully requests that this Court deny Defendants Schaefer and Johnston's 20 Motion to Quash. 21 22 23 24 25 26 27 28 6
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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 s/ Keith E. Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28 7
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