U.S. v. GUZMAN, (D.Kan. 2001)

RICHARD D. ROGERS, United States District Judge.

On June 22, 2001, the court held a hearing on the pretrial motions filed by the defendant. The court is now prepared to issue a ruling on the pending motions.

On January 17, 2001, the grand jury returned a nine-count indictment against defendants Adam Grabel Guzman, Francisco Banda and Michael Thomas Albers. In Count 1, the defendants are charged with conspiracy to possess with the intent to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 846. In Counts 2 through 9, the defendants are charged with possession with intent to distribute various quantities of specific controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendants Banda and Albers have entered guilty pleas.

Defendant Guzman filed the following pretrial motions: (1) for production and discovery; (2) for bill of particulars; (3) for disclosure of 404(b) evidence and relevant conduct evidence; (4) to suppress evidence based on material omission; and (5) to suppress (supplemental).

At the hearing, the defendant indicated that he was no longer pursuing his motions for production (motion for production and discovery and motion for disclosure of 404(b) evidence and relevant conduct evidence) because the government had produced everything requested. As a result, the court shall not address these motions and shall consider them withdrawn.

The defendant seeks an order directing the government to produce a bill of particulars concerning Count 1 of the indictment, the conspiracy charge. The defendant contends that the charge does not sufficiently inform him of the offense charged. He argues that the insufficiency of the charge (1) may mislead him in preparing a defense; and (2) may make it difficult for him to plead an acquittal or conviction in a subsequent prosecution. The defendant requests that the government provide him with (1) the identities of undisclosed and unidentified co-conspirators, aiders and abettors and other individuals involved; and (2) the particular quantity of controlled substances that he allegedly conspired to distribute. The government contends that the defendant has not made a sufficient showing for a bill of particulars. Specifically, the government argues that the defendant has not adequately demonstrated prejudice. The government notes that this is an open file case and considerable materials have been supplied to the defendant.

"The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense." United States v. Levine, 983 F.2d 165, 166-67 (10th Cir. 1992) (citations and internal quotation marks omitted). "A bill of particulars is not necessary if the indictment sets forth the elements of the offense charged and sufficiently apprised the defendant of the charges to enable him to prepare for trial." Id. at 167 (citations and internal quotation marks omitted).

The court does not find that the defendant has sufficiently demonstrated the need for a bill of particulars. This is an open file case and, as a result, the defendant has access to the information that the government intends to use at trial. Accordingly, the court shall deny the defendant's motion.

The defendant filed two motions to suppress. The court heard evidence on these motions during the hearing on June 22, 2001. The court shall now issue the following findings of fact and conclusions of law.

1. In 2000, James E. Norton, a lieutenant with the Salina Police Department, was working on a broad drug investigation in Salina, Kansas. He had developed a working relationship with Tim Howse, a confidential informant. Howse had been arrested on March 15, 2000 on drug charges and had agreed to cooperate with law enforcement authorities.

2. On April 15, 2000, Howse told Lt. Norton that he could make a large purchase of methamphetamine from Adam Guzman. Howse was searched, wired with a transmitting device, and sent to Guzman's home located at 1931 Marc Street in Salina, Kansas. At the house, Howse saw a large amount of methamphetamine. Howse told Guzman that he needed to get the money to purchase the methamphetamine. Howse returned to meet with Lt. Norton. Howse was again searched and rewired with the transmitting device. Lt. Norton gave Howse $12,000 in cash to make the purchase of the methamphetamine.

3. After Howse's departure from Guzman's house, Guzman also left the house and drove to 517 Otto, a residence occupied by Francisco Banda. Guzman eventually returned to his house carrying a small, dark colored bag. He then left a second time.

4. After meeting with Lt. Norton, Howse went back to the Guzman house. He was told that Guzman had left, but that he would return shortly. Guzman returned and it appeared to Lt. Norton, who was listening to the transmission from the transmitter planted on Howse, that the drug transaction had been completed. Lt. Norton was one of several officers who had the Guzman residence under surveillance. Joseph L. Garman, a lieutenant with the Salina Police Department and supervisor of a local drug task force, was part of the surveillance team.

5. Howse left the residence and went to a designated place to meet Lt. Norton. Lt. Norton received information from Howse about what had occurred in the Guzman residence. Howse told him that Guzman had sold him a pound of methamphetamine for the $12,000. Howse provided Lt. Norton with the methamphetamine.

6. Lt. Norton took the methamphetamine to the police department and secured it. He called Lt. Garman. He told Lt. Garman that he had the methamphetamine. Lt. Garman told him that the residence had been secured. Lt. Garman also told him that Guzman had stated that Howse had possessed both the methamphetamine and the money. Lt. Norton prepared an affidavit for search warrants for the Guzman residence at 1931 Marc Street and the Banda residence at 517 Otto.

7. After Howse left the Guzman residence, Lt. Garman made the decision to arrest Guzman and secure the house. His immediate concern was the potential loss of the $12,000. He believed, based upon the circumstances that occurred earlier in the day, that the methamphetamine had been fronted to Guzman and that he would quickly leave to pay for the fronted drugs. Despite his concern that Guzman might take the money and leave the residence, Lt. Garman had no information that Guzman intended to leave the house or was making plans to leave the house. He and three other officers approached the Guzman house. The door to the house was open, but a glass storm door was closed. He knocked on the door, but received no answer. He then stepped into the house with his gun drawn and called out for Guzman. He then saw Guzman down the entry hallway. He directed Guzman to the living room. A woman came out of a bedroom and she was directed to the living room. The other officers conducted a protective sweep of the house. The purpose of the protective sweep was for officer safety to determine if any other individuals were in the house. Nothing was found during the protective sweep.

8. Guzman was given the Miranda warning. Lt. Garman asked Guzman about the location of the $12,000. Guzman said that Howse had the money and the methamphetamine.

9. Lt. Norton submitted his affidavit in support of the search warrants for the residences to a local judge. In the affidavit, Lt. Norton failed to include the following: (1) Lt. Garman and his officers did not see any contraband or money during the protective sweep of the Guzman residence; and (2) Guzman's statement that Howse had the money and methamphetamine in his possession. Lt. Norton did not believe that the aforementioned information was relevant to the application for search warrant. Lt. Norton received search warrants for both residences.

10. Upon receipt of the search warrant, the officers executed a search of the Guzman residence. They found the $12,000 that had been given to Howse earlier in the day.

1. The defendant seeks to suppress all items that were seized from the residence at 1931 Marc Street in Salina, Kansas on April 15, 2000 pursuant to the search warrant. He argues that the affidavit in support of the request for the search warrant was deficient because material information was omitted from it. The defendant also asserts that the evidence seized from his residence and the statements made after he was arrested must be suppressed because law enforcement officers illegally entered his home prior to the execution of the search warrant.

2. It is a violation of the Fourth Amendment to "knowingly and intentionally, or with reckless disregard for the truth," include false statements in an affidavit filed in support of a search warrant. Franks v. Delaware, 438 U.S. 154, 155 (1978). Moreover, "[t]he standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). The false statement or omission must, however, be "necessary to the finding of probable cause" in order for the fruits of the search to be suppressed. Franks, 438 U.S. at 155; see Stewart v. Donges, 915 F.2d 572, 583 n. 13 (10th Cir. 1990) ("[N]ot every omission of relevant information will be regarded as `material.' The omitted information must be so probative as to negate probable cause."). Thus, "a court may look behind a search warrant when the affiant intentionally or recklessly misleads the magistrate judge by making an affirmatively false statement or omits material information that would alter the magistrate judge's probable cause determination." United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997). The defendant bears the burden to demonstrate the affidavit's falsity or reckless disregard for the truth by a preponderance of the evidence. Id.; United States v. Knapp, 1 F.3d 1026, 1028 (10th Cir. 1993); United States v. Sullivan, 919 F.2d 1403, 1424 (10th Cir. 1990).

3. The court does not find that the omitted information was material to the application for search warrant. The failure of Lt. Norton to note that the officers who conducted a protective sweep of the Guzman house failed to see any contraband or money is immaterial. The purpose of the protective sweep was for officer safety, not to detect the presence of inculpatory evidence. Moreover, the failure of Lt. Norton to note the statements of the defendant in the affidavit also appears immaterial since his reliability under these circumstances would be questionable. Nevertheless, even if these omissions were viewed as material, the court does not find that they would have altered the judge's finding of probable cause. Even with the addition of this material, there was probable cause for the issuance of the search warrant. As a result, the court need not reach the issue whether the affiant was reckless in withholding the information from the judge. Accordingly, the court shall deny this motion to suppress.

4. The court shall next turn to the defendant's argument that the evidence seized pursuant to the search warrant must be suppressed because the officers illegally entered his residence prior to receiving the search warrant. The government contends there was an exigency that allowed entry into the defendant's residence to arrest him. The exigency is described as follows: "officers feared that Guzman would leave the residence and return to his source of methamphetamine to pay for the `fronted' dope."

5. The Tenth Circuit has summarized the law concerning warrantless entry into an individual's home as follows:

"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Therefore, absent consent or exigent circumstances, police may not enter a citizen's residence without a warrant. Id. at 590, 100 S.Ct. at 1382. When the police do seek to enter a home without a warrant, the government bears the burden of proving that sufficient exigency exists. United States v. Parra, 2 F.3d 1058, 1064 (10th Cir.), cert. denied, 510 U.S. 1026, 114 S.Ct. 639, 126 L.Ed.2d 597 (1993); [United States v.] Wicks, 995 F.2d [964] at 970 [(10th Cir.), cert. denied, 510 U.S. 982 (1993)].

"[T]here is no absolute test for the presence of exigent circumstances because such a determination depends on the unique facts of each controversy." Wicks, 995 F.2d at 970 (internal quotations omitted). However, in United States v. Aquino, 836 F.2d 1268, 1270 (10th Cir. 1988), we articulated four requirements for a permissible warrantless entry when the police fear the imminent destruction of evidence:

An exception to the warrant requirement that allows police fearing the destruction of evidence to enter the home of [a] suspect should be (1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of evidence is likely, (3) limited in scope to the minimum intrusion necessary, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse.

"In assessing whether this burden has been met, we evaluate the circumstances as they would have appeared to prudent, cautious and trained officers." Parra, 2 F.3d at 1064 (internal quotations omitted). "Our determination ultimately depends on the unique facts of each controversy." Id. United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996).

6. The court is not persuaded that an exigency existed that allowed the officers to enter the house. Lt. Garman testified that he entered the house because he feared the money might disappear. He so testified even though he had no indication that the defendant was leaving the house or planning to leave the house. Moreover, the officers were unable to provide the court with a reasonable explanation why the defendant could not have been arrested if he tried to leave the house. Lt. Garman speculated that the entry into the house avoided a high speed car chase. Again, the court sees no basis for this explanation. Four officers were at the Guzman residence conducting surveillance. The court is convinced that Lt. Garman's concern for the money could have been addressed without entry into the residence. The court finds that the officers' warrantless entry into the Guzman residence violated the Fourth Amendment.

7. The court, however, does not find that the evidence seized from the residence needs to be suppressed as a result of the Fourth Amendment violation. "`Under the "fruit of the poisonous tree" doctrine, the exclusionary rule bars the admission of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of police illegality.'" United States v. Griffin, 48 F.3d 1147, 1150 (10th Cir. 1995) (quoting Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir. 1987)). The court may nevertheless admit evidence following police illegality if the government shows that (1) the evidence was obtained from a source that was wholly independent of the illegal conduct, see Segura v. United States, 468 U.S. 796, 805 (1984); (2) that the evidence inevitably would have been discovered despite the illegal activity, see Nix v. Williams, 467 U.S. 431, 444 (1984); or (3) that the link between the illegality and the evidence has "become so attenuated as to dissipate the taint," Nardone v. United States, 308 U.S. 338, 341, (1939). The government must make its showing by a preponderance of the evidence. See Nix, 467 U.S. at 444 n. 5.

8. In Segura, the Supreme Court addressed the issue of whether "an earlier illegal entry . . . requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence." 468 U.S. at 797-98. The Court held that where an independent source is present for a search warrant under which evidence is seized, the legality or illegality of an initial warrantless entry has no bearing on the admissibility of the evidence. The Court rejected the notion that "but for" the illegal entry, the suspects could have destroyed evidence used against them: "The essence of [defendant's argument] is that there is some `constitutional right' to destroy evidence. This concept defies both logic and common sense." Id. at 816.

9. Segura controls the resolution of the defendant's supplemental motion to suppress concerning the evidence that was seized from the residence. The issuance of the search warrant and discovery of the money within the residence were wholly unrelated to the initial warrantless entry. The evidence was uncovered only as a result of the search conducted pursuant to the warrant. Moreover, none of the information on which the warrant was secured related to the initial warrantless entry. Because the evidence in this case, like in Segura, was the product of the search pursuant to the warrant, not the initial warrantless entry, the legality of the warrantless entry is immaterial. See id. at 814.

10. The court does find it necessary to suppress the statements that were made by the defendant following his arrest. The statements were the result of the illegal entry into the residence by the officers. The court does not find that the Miranda warning purged the taint of the defendant's illegal seizure. See Brown v. Illinois, 422 U.S. 590, 603 (1975). Accordingly, pursuant to the fruit of the poisonous tree doctrine, these statements must be suppressed.

11. Therefore, the court shall grant in part and deny in part the defendant's supplemental motion to suppress.

IT IS THEREFORE ORDERED that defendant's motions for production and discovery and for disclosure of 404(b) evidence and relevant conduct evidence (Doc. ## 62 and 64) are withdrawn at the request of the defendant.

IT IS FURTHER ORDERED that defendant's motion for bill of particulars (Doc. # 63) be hereby denied.

IT IS FURTHER ORDERED that defendant's motion to suppress evidence based on material omission (Doc. # 61) be hereby denied.

IT IS FURTHER ORDERED that defendant's supplemental motion to suppress (Doc. # 79) be hereby granted in part and denied in part.

IT IS SO ORDERED.