Free Brief/Memorandum in Opposition - District Court of Delaware - Delaware

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 1 of 6

U.S. Department of Justice United States Attorney's Office District of Delaware

Nemours Building 1007 Orange Street, Suite 700 P.O. Box 2046 Wilmington, Delaware 19899-2046

(302) 573-6277 FAX (302) 573-6220

May 2, 2008

VIA ECF The Honorable Joseph J. Farnan, Jr. United States District Judge District of Delaware 844 King Street Wilmington, DE 19801 Re: United States v. Stanley D. Lum Criminal Action No. 07-103-JJF

Dear Judge Farnan: This letter concerns the defendant's Motion to Suppress Physical Evidence and Statements (D.I. 12) ("Initial Motion"), as well as his Supplemental Motion to Suppress Physical Evidence and Statements (D.I. 24) ("Supplemental Motion"). On April 18, 2008, the Court held an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). At the end of the hearing, defense counsel made clear that the only two suppression issues pending before the Court were whether or not: (1) Wilmington Police Department ("WPD") officers exceeded the scope of the search warrant by seizing controlled substances and drug paraphernalia in the defendant's bedroom; and (2) the search warrant for 3001 N. Madison Street is invalid under the Franks doctrine. The Government submits that the record shows that each of these questions should be answered in the negative. Accordingly, both of the defendant's motions should be denied. A. The Search of 3001 N. Madison Street Did Not Exceed the Scope of the Warrant.

In the Initial Motion, the defendant asserts that the drug and drug paraphernalia seizures at 3001 N. Madison Street exceeded the scope of the search warrant since those items were not specifically listed in the warrant itself. Init. Mot. (D.I. 12) ¶ 14. In particular, at the evidentiary hearing, defense counsel clarified that his issue was "whether or not the case law would support the

1

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 2 of 6

seizure of, for example, the controlled substance where the scope of the warrant was limited to a gun, pictures of the male resident, and the body of Mr. Lum for a photograph." Transcripts ("Tr.") at 45.1 Third Circuit case law is clear that an officer, while executing a search warrant, may seize contraband that is found in plain view, even if it is not specifically listed in the warrant itself. E.g., United States v. Menon, 24 F.3d 550, 559-60 (3d Cir. 1994) (stating that "[t]he Supreme Court has allowed officers to seize incriminating evidence in plain view during the course of a lawful search because such a seizure `does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view.'") (quoting Horton v. California, 496 U.S. 128, 141 (1990)). Of course, this assumes that the officers were searching in a location that was within the scope of the warrant. Id. For example, as the Court pointed out, officers could not lawfully seize contraband found in a medicine cabinet if the warrant only authorized them to search for the body of the defendant. Tr. at 45-46. That is not the case here, however. The warrant for 3001 N. Madison Street authorized WPD officers to search for a number of items, including ammunition for a .40 caliber firearm or a piece of identification. Def. Ex. 1 (Search Warrant) at 00000010. The defendant does not dispute that the cocaine base and drug paraphernalia were discovered by WPD officers in a dresser drawer and jacket pocket in the defendant's bedroom. A bullet for a .40 caliber firearm or a piece of identification could have been found in either one of these locations. Accordingly, since the officers in question had a right to search in those areas, they could likewise seize any evidence that was obvious contraband, such as the crack cocaine and drug paraphernalia in question, even if it was not specifically listed on the face of the warrant. See United States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (holding that the plain view doctrine authorized law enforcement officers executing a valid warrant to seize an ammunition clip found in plain view in a dresser drawer "because they had a warrant authorizing them to search for and seize cocaine and drug paraphernalia ­ items that could plausibly be found in a dresser drawer"). B. The Defendant Has Not Met His Burden To Establish a Franks Violation.

To establish a Franks violation, the defendant has the burden to establish by the preponderance of the evidence that: (1) the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for the warrant; and (2) such statements or omissions were material, or necessary, to the probable cause determination. United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). The Government respectfully asserts that the defendant has not met his burden with regard to either one of these elements.

1

The transcripts of the evidentiary hearing are attached in their entirety. 2

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 3 of 6

1.

There Are No False Statements in the Warrant Affidavit That Were Made Knowingly and Deliberately, or With a Reckless Disregard for Truth.

At the evidentiary hearing, the defendant only identified one misstatement in the search warrant affidavit ­ namely, that a witness at the scene said that he overheard the suspected shooter say to another individual "stop hanging [out] in front of my mom's house." Tr. at 15; Def. Ex. 1 at 00000011, ¶ 3. In fact, the witness in question had said that the shooter referred to the house in question as being the shooter's "aunt's" house, not his "mom's" house. Tr. at 15; Gov. Ex. 1 (Pigford 7/31/07 Report) at 00000096, ¶ 2. Instead, it was the victim in the case who, during an interview later that day, said that the shooter referred to 3001 N. Madison as his "mom's" house. Tr. at 15 & 32; Def. Ex. 1 at 00000011, ¶ 6.; Gov. Ex. 1 at 00000096, ¶ 3. Under the Franks doctrine, for a misstatement to be made "knowingly and deliberately," or with a "reckless disregard for truth," the defendant must establish ­ at the very least ­ that the officer had "obvious reasons to doubt the truth of what he or she [was] asserting." Yusuf, 461 F.3d at 383 (quoting Wilson v. Russo, 212 F.3d 781, 783 (3d Cir. 2000)). The misstatement described above was not made under such circumstances. Officer Pigford interviewed the witness to the shooting at around 5 a.m. on June 30, 2007. Tr. at 28. He interviewed the victim of the shooting approximately twelve hours later. Id. The two individuals gave similar versions of the events that transpired that morning. Def. Ex. 1 at 00000011, ¶¶ 3 & 6; Gov. Ex. 1 at 00000096, ¶¶ 2 & 3. The only real difference between the two statements was that the witness thought he heard the shooter make reference to his "aunt's house" and the victim thought he heard the shooter refer to his "mom's house." Def. Ex. 1 at 00000011, ¶¶ 3 & 6; Gov. Ex. 1 at 00000096, ¶¶ 2 & 3. Since Detective Pigford spoke with the victim immediately prior to writing the search warrant affidavit, at that time he mistakenly recalled both witnesses as stating that the shooter referred to his "mom's house." Tr. at 15 & 32. This was plainly not an attempt to mislead the magistrate; rather, it was a simple mistake.2 Misstatements that involve "negligence or innocent mistake" do not amount to a Franks violation. Yusuf, 461 F.3d at 383. 2. There Are No Omissions in the Warrant Affidavit that Were Made Knowingly and Deliberately, or with a Reckless Disregard for Truth.

With regard to any alleged omissions in a warrant affidavit, the Third Circuit has concluded that "omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would want to know." Yusuf, 461 F.3d at 383 (emphasis supplied); see also Russo, 212 F.3d at 787 ("We cannot demand that police officers relate the entire history of events leading up to a warrant application with every potentially evocative detail that would interest a novelist or gossip."). The only alleged omission that is identified in the defendant's Supplemental

Indeed, if Detective Pigford had deliberately intended to mislead the magistrate, it is difficult to understand why he would create evidence of the supposed deception in his own report. Gov. Ex. 1 at 00000096, ¶ 2 (Detective Pigford indicating in his own report that the witness at the scene said that the shooter referred to his "aunt's" house). 3

2

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 4 of 6

Motion is that "the suspect [sic] told them the individual who shot him was a light-skinned, black male about 5'7", 120 lbs." Supp. Mot. (D.I. 24) ¶ 3(d). As Detective Pigford testified at the evidentiary hearing, the witness described the shooter as a light-skinned, black male who was about 5'7" and 120 lbs. Tr. at 16. However, as Detective Pigford recorded in his notes, the witness also said that he could not identify the shooter. Id. at 34; Def. Ex. 4 (Pigford Notes of Witness Statement) at 00000046 ("cannot ID"). Accordingly, Detective Pigford did not plan on using this witness to identify the suspect. Tr. at 34. Rather, he relied on the victim's description of the shooter, since he indicated that he could make an identification. Tr. at 17, 34-35; Def. Ex. 1 at 00000011, ¶ 6; Def. Ex. 5 at 00000046; Gov. Ex. 1 at 00000096, ¶ 3. Accordingly, when these circumstances are considered, it is certainly not the case that "any reasonable person" would want to know how the witness described the shooter, particularly when that description is only slightly different than that given by the victim. Compare Def. Ex. 5 at 00000046 (victim describing the shooter as a light brown black male, in his 20's, 5'6" to 5'8" and 140 to 150 lbs) with Def. Ex. 4 at 000000 (witness describing shooter as light skin male, in his 20's, about 5'7" and 120 lbs).3

At the evidentiary hearing, the defendant questioned Detective Pigford with regard to two other alleged omissions, despite the fact that they were not mentioned in his Supplemental Motion. The first alleged omission is that the shooter fled the scene in a vehicle. As Detective Pigford testified, prior to completing the affidavit, he did not receive any information ­ not from the witness, not from the victim, and not from Officer Kavanaugh ­ that the shooter fled the scene in a vehicle. Tr. 20-22. Indeed, neither his handwritten notes nor his report describe the shooting suspect fleeing in a vehicle. Gov. Ex. 5 at 00000096; Def. Ex. 4 at 00000046; Def. Ex. 5 at 00000048-49. Therefore, assuming that the shooter did in fact flee in a vehicle, this information was not within Detective Pigford's ken prior to authoring the affidavit. As such, it cannot be information that he either deliberately or recklessly omitted from the affidavit. Wilson, 212 F.3d at 788 (holding that a fact is recklessly omitted from an affidavit under Franks if an "officer withholds a fact in his ken" that any reasonable person would wish to know) (emphasis supplied). The defendant also questioned Detective Pigford as to why, when he was writing the affidavit, he did not mention the fact that the defendant last used the phone number 302.762.7917 in 2003. As Detective Pigford testified, he initially discovered the phone number by crossreferencing addresses, names and phone numbers in public records. Tr. at 24-25. This records check yielded information that both Stanley Lum and his mother, Renee Payne, were residing at the 3001 N. Madison Street address. Tr. at 25; Def. Ex. 1 at 00000011, ¶ 7. The 302.762.7917 number is mentioned in the affidavit to give the magistrate background as to how Detective Pigford was initially able to make this connection. Def. Ex. 1 at 00000011, ¶ 7; Tr. at 25-26. Indeed, the material fact yielded by Detective Pigford's research was not the phone number, but that Stanley Lum and his mother were the only two individuals listed as living at 3001 N. Madison Street ­ the residence identified by the victim as being connected with the shooter and his mother. Def. Ex. 1 at 00000011, (continued...) 4

3

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 5 of 6

3.

Taking All of the Defendant's Allegations as True, the "Corrected" Affidavit Would Still Support Probable Cause for a Search of 3001 N. Madison Street.

As the Court is aware, a search warrant is supported by probable cause if the affidavit attached thereto establishes, in light of the totality of the circumstances, that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Under the Franks doctrine, in order to vitiate the warrant, any misstatements or omissions must be necessary to this probable cause determination. Yusuf, 461 F.3d at 383. Therefore, while the Government submits that the defendant has not established by a preponderance of the evidence that Detective Pigford made any knowing or reckless misstatements in the affidavit, the defendant has failed to meet his burden under Franks for an entirely separate reason: if the Court were to "correct" the affidavit to account for the any of the alleged misrepresentations or omissions, it would still contain probable cause to search 3001 N. Madison Street. Id. at 383-84. As described in the affidavit, a shooting victim4 stated that the mother of his assailant lived at 3001 N. Madison Street, a location with a wheelchair ramp outside. Def. Ex. 1 ¶ 6. The victim also gave a description of the shooter and indicated that he had seen the shooter in front of this residence in the past. Id. Through his investigation, Detective Pigford discovered that only two people were listed as living at 3001 N. Madison Street ­ Renee Payne, a handicapped individual, and her son Stanley Lum, who generally fit the description of the shooter given by the victim. Id. Accordingly, with these facts in mind, there was at least a fair probability that the shooter was the defendant, and that his residence was 3001 N. Madison Street. Since it is reasonable to infer that an individual's personal effects would be kept at his residence, there is also a fair probability that the .40 caliber firearm, any ammunition thereto, and the defendant's identification would be located at that address. E.g., United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). In like manner, the final category of materials sought ­ any picture, identification, mail, papers, or other materials

(...continued) ¶¶ 6-7. Accordingly, the phone number itself has little, if any, relevance to the affidavit other than to connect the dots in Detective Pigford's investigation. In this context, whether or not that phone number was used after 2003 (by Lum, or for that matter, his mother), is not a fact that "any reasonable person" would want to know when determining whether there was probable cause to search the residence in question. Information given by identified informants, such as the victim, are afforded greater weight than that given by anonymous informants. See United States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000) (describing the rationale for affording a face-to-face informant more credibility than an anonymous informant); see also Gates,462 U.S. at 233-34 (indicating that "if an unquestionably honest citizen comes forward with a report of criminal activity which if fabricated would subject him to criminal liability we have found rigorous scrutiny of the basis of his knowledge unnecessary."). 5
4

3

Case 1:07-cr-00103-JJF

Document 31

Filed 05/02/2008

Page 6 of 6

related to the possible identity of the owner's children ­ are personal effects that an individual, in this case Ms. Payne, would likely keep in her home. In light of the foregoing reasons, the Government respectfully asserts that the defendant's Initial and Supplemental Motions should be denied.

Respectfully submitted, COLM F. CONNOLLY United States Attorney BY: /s/ Shawn A. Weede Shawn A. Weede Assistant United States Attorney

cc:

Edson A. Bostic, Esq.

6

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 1 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 2 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 3 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 4 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 5 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 6 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 7 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 8 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 9 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 10 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 11 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 12 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 13 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 14 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 15 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 16 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 17 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 18 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 19 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 20 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 21 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 22 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 23 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 24 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 25 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 26 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 27 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 28 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 29 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 30 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 31 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 32 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 33 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 34 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 35 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 36 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 37 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 38 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 39 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 40 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 41 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 42 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 43 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 44 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 45 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 46 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 47 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 48 of 49

Case 1:07-cr-00103-JJF

Document 31-2

Filed 05/02/2008

Page 49 of 49