United States v. Calzada
| Decision Date | 18 March 2013 |
| Docket Number | SA-12-CR-642-XR |
| Parties | UNITED STATES OF AMERICA v. OMAR JOSE CALZADA |
| Court | U.S. District Court — Western District of Texas |
On this day came on to be considered Defendant's motion to suppress (docket no. 35).
The Defendant is charged in an indictment with conspiracy to manufacture more than 100 marijuana plants and aiding and abetting the manufacture of more than 100 marijuana plants.
On June 28, 2012, Detective Chad Culp signed and swore to an affidavit in support of a search warrant. The affidavit stated, in relevant part, that he has been employed as a police officer for twelve years and he has been assigned to the Narcotics Unit performing narcotics investigations for three years; that marijuana was being unlawfully grown at 10211 Dancing Brook, and the premises were under the control of Frank Ybarra III and Omar Jose Calzada. He stated that he talked to neighbors and they informed him that they rarely saw anyone at the house and they never saw furniture moved into the residence.
Det. Culp stated that in mid-March 2012, he received information that the residence "was being used for a marijuana grow." He established surveillance at the residence and observed Ybarra and Calzada arrive at the location. He had earlier performed "computer research" to identify Ybarra and Calzada. He saw Calzada open the garage door and enter the house. He was aware that the utilities for the house were under Ybarra's name.
While conducting his surveillance he "observed bright fluorescent lights coming from the upstairs windows on the south side of the house."
The affidavit further stated that on June 8, 2012, a Detective Schneider established surveillance at the house and observed Ybarra and Calzada leave the house through the front door and lock it with a key. They drove off in Ybarra's Audi. The vehicle was subsequently stopped for a traffic violation. Ybarra and Calzada both gave addresses other than Dancing Brook as their residence.
On June 27, surveillance was once again established at the house. Det. Culp saw Calzada arrive at the location, stay for about an hour, and then leave. After Calzada left the house, Det. Culp went into the next door neighbor's backyard. Det. Culp stated in the affidavit that he could smell marijuana coming from 10211 Dancing Brook. He also stated that with binoculars he was "able to see a growing marijuana plant through the exposed crack in the window, that was not covered by the shade and emitting fluorescent light."
Finally, in the affidavit, Det. Culp stated that
On June 28, the search warrant was issued at approximately 5:00 p.m. At approximately 7:30 p.m., law enforcement officers saw Calzada enter the house using a key. Calzada stayed at the house for approximately 15 minutes and then left. Calzada's vehicle was subsequently stopped by a police officer. Inside Calzada's vehicle a mason jar containing high grade hydroponic marijuana was found in a bag. The Defendant was returned to 10211 Dancing Brook, where the search warrant was executed. When law enforcement officers entered thehouse, they noticed a strong odor of marijuana. They found and seized 751 marijuana plants, as well as other evidence located throughout the house, showing a large scale marijuana growing operation. In addition, in the kitchen, officers found numerous receipts in the Defendant's name, showing that he had purchased components used in the growing operation on eBay. The Defendant denied any knowledge of the marijuana growing operation.
Defendant's motion to suppress
Calzada seeks suppression of the marijuana plants and other evidence located in the house, the records obtained regarding electricity usage, the jar containing high grade hydroponic marijuana found in the vehicle, and the key to the house found on his person. He argues that the affidavit signed by Det. Culp was "bare bones"; Det. Culp failed to establish the veracity of the informant; his statement that the house was vacant was unfounded; he failed to demonstrate to the magistrate where he obtained the kw electricity consumption numbers1 ; he failed to establish any causal connection between the kw numbers he cited and marijuana growth; his statement was "specious" that when he was next door in the neighbor's yard he smelled marijuana; Det. Culp misled the magistrate by incorrectly citing one of the kw electricity consumption numbers; Det. Culp failed to disclose to the magistrate that there were similar consumption numbers for nearby houses; Det. Culp engaged in a warrantless search of the house by climbing on the neighbor's roof and using binoculars to peer into the residence; Det. Culp failed to disclose to the magistrate that he climbed a neighbor's roof to utilize his binoculars; and Det. Culp engaged in a warrantless search by accessing the electricity consumption numbers for the residence. With regard to the vehicle, Defendant argues that the stop of his vehicle took place 4.4 miles from the house and violates the recent holding by the Supreme Court in United States v. Bailey.
The Government argues that Calzada lacks standing to challenge the search warrant.
On March 12, 2013, the Court held an evidentiary hearing regarding the motion to suppress. The Defendant testified during this hearing pursuant to Simmons v. U.S., 390 U.S. 377 (1968). The Defendant testified as follows: He possesses an associate's degree in horticulture and characterized himself as being an expert regarding greenhouses. He and his childhood friend, Frank Ybarra, leased the premises at 10211 Dancing Brook with the intention of growing marijuana there. He and Ybarra had exclusive control over the premises. Although he did not sign the lease, he had an agreement with Ybarra to pay half the rent. The lease began on or about March 1, 2012. Utilities for the house were under Ybarra's name. Calzada had a key to the house. Calzada covered each of the windows to prevent anyone from looking into the premises. Calzada kept a sleeping bag inside the house. He also had a couch, entertainment center and table inside the house. From the beginning of March until his arrest on June 28, he slept at the house on ten to fifteen occasions. His residence was his mother's home. Calzada works as a fishing guide, so for a few months he kept a boat at the premises (until the homeowner's association notified him that he could no longer do so). Calzada also kept some fishing gear inside the house. He testified that he stayed overnight on some occasions to tend to the marijuana growing operations and sometimes he stayed at the premises to avoid the extra drive to his mother's home.
At the hearing the Government stipulated that Calzada had a subjective expectation of privacy in the premises.2
The Government called Det. Chad Culp to testify at the hearing. He testified that he has been a San Antonio Police Officer for over 13 years and has been assigned to the narcotics unit since 2008. Det. Culp stated that he formerly owned a home on the cul-de-sac where 10211 Dancing Brook is located. He testified that the neighbors on that cul-de-sac are extremely close and that one of his former neighbors called him in March, informing him that he suspected 10211 Dancing Brook was being used to grow marijuana. The neighbor saw fluorescent lights at the house and heard sawing and hammering noises in the newly renovated house. After receiving this phone call, Det. Culp personally investigated. Standing on the street of the cul-de-sac, Det. Culp personally observed fluorescent lights emanating from a window on the premise's second floor. He set up surveillance at the house and a number of neighbors provided the license plates of the vehicles visiting the house. Det. Culp ran the license plates, obtained photographs, showed the neighbors the photographs, and the neighbors confirmed the identities as the persons they had seen at the house. On one occasion Det. Culp personally observed Calzada at the house.
On June 8, Det. Schneider performed surveillance at the house. When he saw Calzada and Ybarra there and later drive away, Det. Schneider called police officers to stop the vehicle to confirm their identities. When stopped by the police officer, both Calzada and Ybarra gave addresses other than 10211 Dancing Brook as their residences.
On June 26 or 27, Det. Culp called the police department's regional intelligence center (SARIC) and requested the electric company's consumption figures for the house. He was verbally supplied with assorted information.3
On June 27, Det. Culp saw Calzada arrive at the premises and then leave. Shortly thereafter, with the permission of the neighbor, Det. Culp entered into the neighbor's backyard. Upon walking between the houses, Det. Culp testified that he began to smell hydroponic marijuana and that the smell was coming from 10211 Dancing Brook. The neighbor suggested to Det. Culp that he use his ladder and climb his roof to see if he could better see the window displaying cracks and emanating fluorescent light. Det. Culp did so and with the use of binoculars he saw marijuana plants.
On June 28, Det. Culp swore an affidavit. He explained to the magistrate his knowledge of the location, his climbing the ladder to look at the window and the neighbors' involvement. He chose not to include those details in the affidavit in order to protect the identities of the various neighbors/private citizen informants.
On that same day the search warrant was executed. The warrant team decided to wait for Calzada to leave the premises and detain him once he left. The patrol car, however, was unable to pull Calzada's vehicle over until some...
To continue reading
Request your trial