U.S. v. Delgado
| Decision Date | 17 November 2000 |
| Docket Number | No. 99-CR-20082.,99-CR-20082. |
| Citation | 121 F.Supp.2d 631 |
| Parties | UNITED STATES of America, Plaintiff, v. Ricardo DELGADO, II, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Rodney J. O'Farrell, O'Farrell, Smith, Saginaw, MI, for defendant.
The Court in this case is called upon to assess the validity of a search of a home and seizure of property made pursuant to a search warrant issued on the basis of an affidavit which contained erroneous information as to the address of the residence to be searched, the defendant's criminal record and the owner of the premises, and false information that an informant had seen controlled substances at the premises.
The defendant, Ricardo Delgado, II, is charged in six counts of a thirteen-count superseding indictment with various controlled substance and weapons offenses. The charges arose from an investigation that began in the Fall of 1999 by FBI agents and officers with the Bay Area Narcotics Enforcement Team (BAYANET) into the alleged drug trafficking activities of the defendant and others. As part of the investigation, Saginaw County Sheriff Deputy Gerald Fish interviewed a confidential informant identified as FBI-2. The interview took place in a police vehicle in October, 1999. During the interview, Deputy Fish inquired about the drug trafficking activity of Delgado and one Aristeo Robelin. The interview was tape-recorded. According to the transcript of the interview, FBI-2 (identified as "CS") told Deputy Fish:
Fish: Who else was there? What about the man from the, on Lapeer? What was the name, uh?
CS: Delgado.
Fish: Delgado, yeah.
CS: Thats [sic] the, I know they (unintelligible) I know they bring a lot of keys in.
Fish: Okay.
CS: And they get `em from Texas. I know that, you know, `cause when I was dealing with them (unintelligible) about this time last year, I bet when he storin' (unintelligible) Up until like April. It happened about April when I got (unintelligible) You know, they got mad if I knew how much (unintelligible)
Fish: Yeah.
Fish: The, ah, when, where was you at when you saw the dope? At their house or ...
CS: At their house.
Fish: Okay.
CS: On Ruckle.
Fish: Okay. Now, but, you, have you ever been on Lapeer Street?
CS: No, no, no.
Fish: Okay.
CS: No, I ain't never been over there.
Gov't Ex. 102, Hr'g on Mot. to Suppress.
Deputy Fish did not make a report of the interview. However, he took contemporaneous notes, and while FBI-2 was speaking Fish wrote, "Delgado's ... mid 20's Lapeer St ... saw 10 Kilos April 99" (Gov't Ex. 103). Deputy Fish interviewed FBI-2 on other occasions but took no notes of those interviews, nor did he make any written reports.
During the interview of FBI-2, the police drove with the informant by a house on Lapeer Street in the City of Saginaw which FBI-2 identified as Delgado's. Deputy Fish observed the address as "1502" Lapeer Street. Thereafter, Deputy Fish asked City Detective Bickle to obtain utility records for that address. However, instead Detective Bickle obtained tax assessment records, which listed the owner as Isabel Delgado.
Also as part of the investigation, FBI Agent Robert Howard obtained a criminal history report on the defendant from the Law Enforcement Information Network (LEIN), which disclosed that the defendant had pleaded guilty to possession of cocaine in 1995, and that he had been charged with other offenses which were dismissed.
After the October, 1999 interview of FBI-2, Deputy Fish contacted Agent Howard and told him that FBI-2 reported that he had seen ten kilograms of cocaine at 1502 Lapeer Street in April, 1999. Deputy Fish also relayed to Agent Howard that the utility records from 1502 Lapeer Street were in the name of "Delgado."
On December 16, 1999, Agent Howard sought a search warrant for 1502 Lapeer Street, which he described in an affidavit as a "two-story single family residence with gray aluminum siding" with "[t]he numerals '1502' ... located near the front door in black numbers...." According to the affidavit, Agent Howard believed he would find "[u]nknown quantities of controlled substances" and other, related items located there.
In support of the affidavit, Agent Howard made the following statements:
10. FBI-2 stated that he/she has been told by Robelin on several occasions over the time that FBI-2 has known Robelin that Delgado is Robelin's supplier of cocaine. In April 1999, FBI-2 was at Delgado's residence located at 1502 Lapeer Street, Saginaw and personally observed 10 kilo's of cocaine there. Robelin and Delgado were also present at the residence at that time.
. . . . .
13. A review of Ricado Delgado II's criminal history shows one felony conviction for distribution of crack cocaine in 1994, a two count felony conviction for carrying concealed weapons in 1994, and one felony conviction for telecommunications-counterfeit device in 1998.
14. Affiant caused a utilities (water) check to be made on the above two locations to be searched. Service for 3216 Ruckle Street is listed to Robelin. Service for 1502 Lapeer Street is listed to Delgado.
. . . . .
As it turned out, 1502 Lapeer Street is a vacant lot. There is a house located at 1506 Lapeer Street, and it is owned by Cruz and Manual Guerra, the defendant's grandparents.
On December 17, 1999, agents of the FBI and BAYANET executed the search warrant and searched the house located at 1506 Lapeer Street. No drugs were found; however the agents did find and seize firearms, ammunition, several pieces of body armor, a large amount of cash, and an electronic scale, among other items. The defendant was not on the premises at the time of the search, although he was under surveillance. When the weapons and body armor were located, the information was relayed to surveilling officers and the defendant was stopped and arrested. During the search incident to the arrest, Saginaw Township police officers found a firearm and ammunition on the defendant's person.
The indictment followed.
The defendant filed two motions to suppress evidence. The first motion [dkt. # 17] challenges the search warrant as improper because it was based on an affidavit that contains information that was deliberately or recklessly false. Therein, the defendant points out that the street address for the Guerra house was wrong, that the defendant's prior criminal record is over-stated, and that no utility (water) records state that the house belongs to Delgado. The defendant argues that if the water records for 1502 Lapeer Street were in fact examined, as the search warrant affidavit avers, they would have disclosed the police officers' mistake because no utility service was ever provided for that address, which is a vacant lot. Finally, the defendant contends that paragraph ten of the affidavit is false because no government informant ever stated that he saw ten kilograms of cocaine at the Lapeer Street house.
In the second motion [dkt. # 19], the defendant contends that his arrest on December 17, 1999 was illegal because it was made absent probable cause, and the ensuing seizure of the weapon incident to the arrest was improper.
The government responded that the motion challenging the search warrant should be denied because the defendant lacked "standing" to contest the search of his grandparents' residence because he did not live there. Further, although the government concedes that the information in the search warrant affidavit was inaccurate, the government argues that the inaccuracies were the result of mere negligence or innocent mistakes that did not rise to the level of deliberate falsehoods or reckless disregard for the truth.
In response to the defendant's second motion, the government argues that once Detective Winter, the arresting officer, learned that the results of the search of the Lapeer Street residence yielded large amounts of cash, assault weapons, bullet-proof vests and a scale, he had probable cause that the defendant's automobile contained evidence of a crime and therefore could stop it without a warrant to search it.
The defendant responded to the government's argument that he lacked standing to challenge the search of the Lapeer Street home by filing an affidavit in which he avers:
2. That he is 27 years old and is the Grandson of Cruz and Manuel Guerra, who live at 1506 Lapeer Street, Saginaw, Michigan, a home which they have occupied since prior to Affiant's birth.
3. That Affiant is one of many grandchildren of Cruz and Manuel Guerra.
4. That Affiant's parents have been undergoing marital difficulties for several years with the family home on Arvin Drive being occupied by either Affiant's father or mother or both at various times.
5. That Affiant has always been close to his grandparents and has sought their advise [sic] and emotional support during his...
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