S. AMANDA MARSHALL United States Attorney, SCOTT M. KERIN, STACIE F. BECKERMAN, Assistant United States Attorneys, Portland, OR, Attorneys for Plaintiff.
AMY M. BAGGIO, Portland, OR, Attorney for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant's Motion (#22) to Suppress Evidence Obtained from Search Warrant. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion. The Court also requires an additional evidentiary hearing in order to resolve the remaining issues as described herein.
In March 2011 the government began investigating multiple targets in an operation deemed "Operation Aguagiestas" related to a drug-trafficking organization known as the Pulido Drug Trafficking Organization (Pulido DTO). In September 2012 the government sought and obtained judicial authorization for wiretaps from United States District Court Judges Marco A. Hernandez and Michael W. Mosman that authorized wiretapping and interception of telephone calls and text messages from various targets of the Pulido DTO investigation. In the course of federal investigators intercepting such calls and text messages, Defendant Francisco Javier Rodriguez came to the investigators' attention on September 26, 2012, when he made two telephone calls to Alejandro Torres-Oceguera (Torres), who was one of the primary subjects of the wiretaps.
On February 13, 2013, a grand jury indicted eight Pulido DTO defendants, including Torres, with various drug-conspiracy charges in United States v. Doe, 3:13-CR-00059-MO. On February 14, 2013, the government obtained ten federal search warrants as part of its ongoing investigation. One of those warrants, authorized by Magistrate Judge Dennis James Hubel, permitted the search of Defendant's residence located at 13904 S.E. Woodward Street, Portland, Oregon. When they executed that search warrant on February 15, 2013, agents seized heroin, over 450 grams of marijuana, six small marijuana plants, handguns, ammunition, a scale with heroin residue, drug-packaging material, multiple cell phones, and $49, 745 in cash.
On February 28, 2013, a grand jury indicted Defendant with one count of Conspiracy to Distribute and Possess with Intent to Distribute Heroin in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846; one count of Possession with the Intent to Distribute Heroin in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); one count of Possession with the Intent to Distribute Marijuana in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(D), and 846; and criminal forfeiture.
On September 6, 2013, Defendant filed his Motion to Suppress Evidence Obtained from Search Warrant.
On October 28, 2013, the Court conducted a hearing on Defendant's Motion. At the hearing the parties agreed the only evidence on which they intended to rely was the Affidavit of Special Agent Carrie Hutchison filed in support of the February 2013 search-warrant application. Shortly after the hearing the Court requested the parties to file supplemental briefs no later than November 4, 2013, to address whether Hutchison's Affidavit provided probable cause to authorize a search for firearms in Defendant's residence. The Court took this matter under advisement on November 4, 2013.
Defendant moves to suppress all of the evidence obtained from the February 15, 2013, search of his residence on the grounds that the February 14, 2013, warrant that authorized the search was not supported by probable cause particular to him and there is not any applicable good-faith exception as set out in United States v. Leon, 468 U.S. 897 (1984), on which the searching officers may have relied under the circumstances of this case.
I. Probable cause to support a search-warrant standard
The Warrant Clause of the Fourth Amendment requires compliance with two related but distinct rules. First, [a search warrant] must describe the place to be searched or things to be seized with sufficient particularity, taking account of the circumstances of the case and the types of items involved. Second, it must be no broader than the probable cause on which it is based.
United States v. Gourde, 382 F.3d, 1003, 1008 (9th Cir. 2004). Id. (internal citations omitted).
The role of a judge in reviewing a search-warrant application is to determine whether, "given all the circumstances set forth in the affidavit, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Tan Duc Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "A magistrate judge's finding of probable cause is entitled to great deference.'" United States v. Rios, 434 F.Appx. 648, 650 (9th Cir. 2011) (quoting United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007)). A court "will not find a search warrant invalid if the magistrate judge had a substantial basis for concluding that the supporting affidavit established probable cause.'" In contrast, "[a] reviewing court should find that probable cause is not met when the issuing judge lacked a substantial basis [to]... conclude' that probable cause existed." United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2012) (quoting Gates, 462 U.S. at 238-39).
The Ninth Circuit explained in Underwood:
Conclusions of the affiant unsupported by underlying facts cannot be used to establish probable cause. See United States v. Cervantes, 703 F.3d 1135, 1139-40 (9th Cir. 2012) (affording little if any weight to detective's conclusory statement that, based on his training and experience, the box in defendant's possession came from a suspected narcotics stash house).... An affidavit must recite underlying facts so that the issuing judge can draw his or her own reasonable inferences and conclusions; it is these facts that form the central basis of the probable cause determination.
Id. (citations omitted).
II. The search-warrant application
As noted, Defendant contends the February 14, 2013, search warrant was not supported by probable cause particular to him. Defendant emphasizes the warrant application reflected as to Defendant only two telephone calls on September 26, 2012, five months before the warrant application; geolocation and surveillance data from the same date; an October 2012 claim by an unreliable and uncorroborated informant who said Defendant was a heroin dealer; and the opinion of the agent who sought the warrant regarding general practices of drug traffickers.
Specifically, the Affidavit of Special Agent Carrie Hutchison supporting the warrant notes the ...