U.S. v. Guadarrama

• Decision Date: 12 January 2001
• Docket Number: No. 00-CR-124.,00-CR-124.
• Citation: 128 F.Supp.2d 1202
• Parties: UNITED STATES of America, Plaintiff, v. Manuel GUADARRAMA a.k.a. Juan Sotelo, and Rey Garcia, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

128 F.Supp.2d 1202

UNITED STATES of America, Plaintiff, v. Manuel GUADARRAMA a.k.a. Juan Sotelo, and Rey Garcia, Defendants.

No. 00-CR-124.

United States District Court, E.D. Wisconsin.

January 12, 2001.

COPYRIGHT MATERIAL OMITTED

Michael Schnake, Miller & Stansberry, Milwaukee, WI, for Manuel Guadarrama.

John Miller Carroll, John Miller Carroll Law Office, Wind Lake, WI, for Rey Garcia.

Brian Resler, U.S. Dept. of Justice (EDWI), Office of the U.S. Atty., Milwaukee, WI, for U.S.

DECISION AND ORDER

ADELMAN, District Judge.

This case raises several questions involving the Fourth Amendment, including the constitutional status of "all persons" search warrants.

I. PROCEDURAL HISTORY AND STANDARD OF REVIEW

Acting pursuant to a search warrant authorizing the search of all persons on the premises of the Guadalajara Tavern, law enforcement officers searched defendant Manuel Guadarrama, also known as Juan Sotelo, on June 28, 2000, and found cocaine and other incriminating evidence in his pocket. Guadarrama and his co-defendant, Rey Garcia, are each charged with one count of possession with intent to distribute more than 500 grams but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Guadarrama filed a motion to suppress the evidence found on his person, and Garcia has requested permission to adopt the motion. U.S. Magistrate Judge Aaron E. Goodstein conducted an evidentiary hearing on August 15, 2000.

Judge Goodstein recommended that I find the search warrant unconstitutional, but nonetheless recommended that I find the evidence admissible, either as supported by independent probable cause, or under the "good faith" exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The government did not file an objection to the portion of the recommendation regarding the constitutionality of the search warrant, and so I review that portion only for clear error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir.1999). Guadarrama filed an objection to the ultimate recommendation to deny his motion to suppress. My review of that portion of the recommendation is therefore de novo. 28 U.S.C. § 636(b)(1)(A) & (C); United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Nonetheless, Guadarrama's objection provides no specific reasons that he takes exception to certain portions of the analysis. A party objecting to a magistrate judge's recommendation must provide a written objection which "specifically identif[ies] the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objection." E.D. Wis. Local Rule § 13.03(c) (emphasis added). Failure to specify the legal or factual basis for an objection relieves this court of the obligation to conduct a de novo review of that legal or factual issue. Johnson, 170 F.3d at 742.

II. FACTUAL BACKGROUND

Search Warrants and Supporting Affidavit

After a five-month investigation, the High Intensity Drug Trafficking Area ("HIDTA") Task Force sought two drug search warrants on June 27, 2000, the first for the Tavern — located on the south side of Milwaukee — and the second for the upstairs residence over the Tavern. The supporting affidavit described three controlled buys of cocaine made at the Tavern by a confidential informant. (Gov't Ex. 1, Evid. Hr'g [hereinafter "Aff."] at 1.) At the first controlled buy, in late January 2000, the informant reported that he bought cocaine from a Hispanic male patron who told him that he could come back to buy more cocaine. At the second controlled buy, six weeks before officers sought the search warrants, the informant sought to buy cocaine from the bartender, and the bartender spoke with a patron, who told the informant that he "would be right down" with the cocaine. The patron then left the Tavern through a side door and returned in about two minutes with cocaine. At the third controlled buy, three days before officers sought the search warrants, the informant sought to buy cocaine from someone in the Tavern named Jaime Molina-Carrillo; Molina-Carrillo spoke with a Hispanic male associate, who exited the side door and returned within five minutes with cocaine. (According to vehicle registration records, Molina-Carrillo lived in the upstairs residence.) Milwaukee Police Department Detective Carlos Negron, assigned to the HIDTA Task Force, was conducting surveillance outside the Tavern during this third controlled buy, and saw the associate leave the Tavern and enter the upper flat. Negron stated in his affidavit that the person he saw matched the informant's description of the Hispanic male associate, and later testified that he recognized this associate as defendant Garcia. (Evid. Hr'g Tr. [R. 34] [hereinafter "Tr."] at 46.)

Both the Tavern and Residence warrants are on forms with notations at the bottom indicating that they were printed from a computer file. The relevant form language is as follows:

[Affiant,] Showing probable cause that on ____, 1999, in the County of Milwaukee, there is now located and concealed in and upon certain premises, located within the ____ of ____ in said County, occupied by ____, and more particularly described as follows: DESCRIBE PREMISES: __________________________ ____________________________________ ____________________________________, search to include all storage areas accessible to ____ and all persons present on premises, certain goods, chattels and property, to-wit: DESCRIBE OBJECTS OF SEARCH:

....

Now, THEREFORE, in the name of the State of Wisconsin, you are commanded forthwith to search the said premises and/or the said person(s) for said things, and take possession thereof, if found.

(Gov't Ex. 1, Evid. Hr'g) (emphasis added). The language directing officials to search "all persons present on premises" is thus part of the HIDTA Task Force standard cocaine search warrant form.¹

B. Execution of the Search Warrants

Police executed the two warrants early the next afternoon, Wednesday, June 28 2000, at about 12:45 p.m. Six or eight West Allis Police Department officers executed the Tavern warrant, while six or eight Milwaukee Police officers simultaneously executed the Residence warrant.

When West Allis police entered, they seized, handcuffed, put face-down on the floor with their hands behind them, patted down, and searched the pockets of all of the eight or nine Tavern patrons present. Firearms were trained on each patron throughout this process, which lasted some ten to fifteen minutes. (Tr. at 94-95.)

West Allis officers followed what they described as "basic search warrant protocol" and "standard operating procedure," (Tr. at 56, 71), which involved handcuffing all persons found at the place to be searched and patting them down for weapons. One officer searched Guadarrama and found and removed a set of keys from his pocket; the keys were then apparently returned to Guadarrama. After the premises were secured and officers considered the Tavern safe — a period of about five minutes from the beginning of the execution of the search warrant — West Allis Detective Sergeant Charles Unger entered the Tavern. (Id. at 53, 54, 56.) All patrons were kept lying on their faces, handcuffed, and with weapons pointed at them. (Id. at 94-95.)

After another five minutes, Detective Negron directed Detective Unger to arrest Guadarrama and Garcia. Detective Unger then re-searched Guadarrama, and found not only the keys but also eight small packets, or bindles, of cocaine in Guadarrama's right front pocket. Detective Unger later tried the keys in the lock of the door to the upstairs residence, and found that one key fit.

Detective Negron based his decision to have Guadarrama and Garcia arrested upon two factors. First, he had seen both Guadarrama and Garcia — in the span of a half hour earlier that same day — each twice exit the Tavern, go to the upstairs residence, use a key to enter, and then return to the Tavern within minutes. (Id. at 24-25.) Second, during their search of the upstairs residence, officers found cocaine and other drug paraphernalia. (Id. at 29).

III. ANALYSIS

Defendant Guadarrama seeks to suppress the cocaine and the incriminating key found in his pocket as the product of unconstitutional searches. The government has proffered a variety of theories to support its position that the search and seizure were legal. Because this is a federal prosecution, I apply federal standards regardless of how a state court might rule, even though the search was made by state officers executing a state search warrant. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Singer, 943 F.2d 758, 761 (7th Cir.1991).

A. "All Persons Present" Search Warrant

The government first contends that its search of Guadarrama was justified because the Tavern search warrant required officers to search "all persons present on premises." The magistrate judge recommended that I find this portion of the warrant invalid. Although I review this portion of the recommendation only for clear error (because the government did not file an objection), I address the issue in detail because of its importance.

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Neither the Supreme Court nor the Seventh Circuit has addressed the constitutionality of "all persons" warrants under the Fourth Amendment.²

1. Treatment of "All Persons" Warrants in Other Jurisdictions

The question of such warrants' constitutionality has been raised in some forty-four jurisdictions. Of these, only Wisconsin authorizes an "all persons" warrant to be issued on less than probable cause as to a defendant.

a. Facially Unconstitutional

Among the other forty-three jurisdictions, the...