United States v. Garcia

• Decision Date: 24 August 2011
• Docket Number: No. C 11–00172–1 SI.,C 11–00172–1 SI.
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Antonio GARCIA, Defendant.

809 F.Supp.2d 1165

UNITED STATES of America, Plaintiff,

v.Antonio GARCIA, Defendant.

No. C 11–00172–1 SI.

United States District Court, N.D. California.

Aug. 24, 2011.

Christine Wong, United States Attorney's Office, San Francisco, CA, for Plaintiff.

Lynn Marie Keslar, Law Offices of Lynn M. Keslar, Oakland, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS

SUSAN ILLSTON, District Judge.

On August 12, 2011, the Court heard argument on defendant's motion to suppress. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS IN PART and DENIES IN PART defendant's motion.

BACKGROUND

On January 23, 2009, defendant Antonio Garcia was detained and then arrested in San Francisco on Hyde Street between Ellis and Eddy for possession of cocaine in violation of California Health and Safety Code section 11350. ¹ On January 27, San Francisco Police Inspector Scott Lau submitted a statement of probable cause to the San Francisco Superior Court, in support of a request for a warrant to search defendant's house. See Statement of Probable Cause, Declaration of Lynn Keslar in Supp. of Mot. to Suppress (“Keslar Decl.”), Ex. A.

In addition to describing his training and qualifications as an affiant, Inspector Lau described the events of January 23 as follows. He, along with Sergeant Brown, Inspector Yu, Sergeant Ries, and Sergeant Chorley,

conducted a surveillance in the area of Eddy St. and Hyde St. We know this area is frequented by “11th St.” Sureno gang members. Insp. Yu is currently investigating a shooting involving an 11th St. gang member by the name of Dennis Hanrahan ... who was shot on 1/21/09 in this area.... During our investigations at Gang Task Force, we have also had information in the recent past that 11th St. gang members have firearms, are selling narcotics, and are extorting local drug dealers.

Sgt. Ries observed a number of 11th St. gang members mid-block on the east side of Hyde St. between Ellis St. and Eddy St. They appeared to be loitering beside a green Buick .... that was double-parked in the # 1 lane of Hyde St. traffic blocking a private driveway. We contacted this group which included the following subjects: Antonio “Capone” Garcia [and five others]. We knew all these subjects from prior contacts with the exception of [one]. Antonio Garcia is a 19th St. Sureno gang member, [and the other four known subjects are 11th St. gang members]. Antonio Garcia advised Sgt. Chorley that the double- parked green Buick belonged to him. As we were speaking to these subjects, Sgt. Chorley looked into the green Buick from outside the vehicle through the driver's side window which had been rolled down; using his flashlight to illuminate the interior of the vehicle, Sgt. Chorley observed a small plastic baggy containing suspected cocaine. Sgt. Chorley advised us of his observation, and we arrested Garcia. Sgt. Chorley seized the baggy of suspected cocaine from the vehicle. When Garcia asked why he was being handcuffed, Insp. Yu told him that a bag of cocaine had been found in his vehicle. Garcia spontaneously stated, “Come on, man, it's a little personal.” Garcia was clearly upset that he had been arrested for what he considered a small amount of drugs. The other subjects left the scene.

Garcia was transported to Co. J. Garcia's tattoos were photographed. We noted that he had the following Sureno gang-related tattoos: “13” and “calle ezinueve” on his back and on his left hand he had 3 dots.... The SFPD Crime Lab tested the suspected cocaine and found it tested positive for the presence of cocaine salt with a net weight of .42 grams.

Id. Inspector Lau also stated that he knows from his training and experience “that it is common for someone who consumes cocaine to possess paraphernalia for the ingestion of cocaine at his residence or in his vehicles” and “that it is common to find additional drugs and empty used packaging items at a drug user's residence or in his vehicles.” Id.

On the basis of Inspector Lau's affidavit, a San Francisco Superior Court Judge signed a search warrant authorizing the seizure of:

1. Cocaine

2. Paraphernalia for the ingestion of cocaine, including but not limited to straws, rolled papers, smooth-surfaced items such as glass, etc., razor blades.

3. Narcotics packaging including but not limited to small ziplock bags, small pieces of plastic, pieces of paper.

[And] 4. Evidence of street gang membership or affiliation including documents, photos, drawings, writings, gang paraphernalia (e.g., bandanas, jackets, t-shirts), information stored on electronic devices, and graffiti depicting gang members' names, initials, logos, monikers, and/or slogans.

See Search Warrant, Keslar Decl., Ex. B.

The police searched Garcia's home later that evening. Among other things, they found a rifle, bullets, four bags of suspected marijuana, scales, and drug packaging. See Jan. 27 Incident Report, Keslar Decl., Ex. E, at 9. The police also found what they call “gang-related items,” including blue bandanas. See id.

Defendant filed a motion to quash the search warrant in state court, which the San Francisco judge who had signed the search warrant denied after a hearing on October 23, 2009. See Transcript, Keslar Decl., Ex. D. At the hearing, defendant's attorney argued that under California law, neither possession of a user-amount of cocaine nor evidence of gang membership, without more, is sufficient to support a warrant to search a person's residence. The judge found that she “probably shouldn't have signed the warrant based on what's in the affidavit.” Id. at 12:15–12:17.

There's a background in this case that there was a gang shooting the week before, and I think that quite honestly that context probably had me as the magistrate concerned at the time that I got the warrant.... But you're right, it's not set forth in the affidavit.... [Q]uite honestly, I think I was considering factors that I know of ... that were not specifically set forth in the affidavit.

Id. at TR 3:19–3:20; 6:17–6:18; 9:14–9:17. Nonetheless, the judge found that the officers were acting in “good faith in seeking the warrant in the manner they did [and] in executing the warrant.” Id. at TR 10:16–10:19. ²

Defendant is charged in federal court with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Indictment (Doc. 1). Currently before the Court is a motion to suppress, in which defendant requests the suppression of all evidence seized from defendant's home, car, and person, as well as all statements made by defendant and three individuals who were in his home when it was searched.

LEGAL STANDARD

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. Evidence resulting from an unconstitutional search or seizure cannot be admitted as proof against the victim of the search, and therefore must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

“A search warrant, to be valid, must be supported by an affidavit establishing probable cause.” United States v. Stanert, 762 F.2d 775, 778 (9th Cir.1985). “[P]robable cause means a fair probability that contraband or evidence is located in a particular place. Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a commonsense, practical question. Neither certainty nor a preponderance of the evidence is required.” United States v. Kelley, 482 F.3d 1047, 1050–51 (9th Cir.2007) (internal quotation marks and citations omitted). In determining whether a search warrant was based upon probable cause, the district court is “limited to the information and circumstances contained within the four corners of the underlying affidavit.” United States v. Stanert, 762 F.2d 775, 778, amended on other grounds, 769 F.2d 1410 (9th Cir.1985).

Review of a judge's determination that probable cause existed for a warrant is deferential; “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... conclud[ing]’ that probable cause existed.” Gates, 462 U.S. at 238–39, 103 S.Ct. 2317; see also United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007) (“Normally, we do not ‘flyspeck’ the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination should be paid great deference.” (internal quotation marks omitted)).

Where officers conducting a search reasonably relied on a warrant that later turned out to be invalid, there is a good faith exception to the exclusionary rule. See Massachusetts v. Sheppard, 468 U.S. 981, 987–88, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In general, evidence will not be suppressed when the magistrate, not the officer, errs. United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993). However, information provided to the magistrate must be truthful “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Evidence should be suppressed only if: (1) the magistrate has abandoned his detached and neutral role, (2) the officers were dishonest or reckless in preparing their affidavit, or (3) the officers could not have “harbored an objectively reasonable belief that probable cause existed.” United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It is the government's burden to demonstrate that the officers' reliance on an invalid warrant was reasonable. See Center Art Galleries–Hawaii, Inc. v. United States, 875 F.2d 747, 752 (9th Cir.1989).

DISCUSSION

I. Facial validity of the warrant

Defendant argues that the search warrant was facially invalid, because evidence that an individual uses drugs, by itself, does not yield probable cause to believe that drugs will be found in...