United States v. Torres

• Decision Date: 19 November 1980
• Docket Number: No. Crim. S-79-123.,Crim. S-79-123.
• Citation: 504 F. Supp. 864
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Rudolph Marques TORRES, Ernesto Lopez Salsedo, Richard Steven Montes, Jose Luis Buenrostro, Defendants.

504 F. Supp. 864

UNITED STATES of America, Plaintiff, v. Rudolph Marques TORRES, Ernesto Lopez Salsedo, Richard Steven Montes, Jose Luis Buenrostro, Defendants.

No. Crim. S-79-123.

United States District Court, E. D. California.

November 19, 1980.

Herman Sillas, U. S. Atty. by Julian Macias, Asst. U. S. Atty., Sacramento, Cal., for the Government.

Steven Bauer, Sacramento, Cal., for defendant Torres.

Robert E. Hodge, Sacramento, Cal., for defendant Buenrostro.

E. Richard Walker, Federal Public Defender by Robert Holley, Deputy Public Defender, Sacramento, Cal., for defendant Montes.

Jerome S. Stanley, and Christopher H. Wing, Sacramento, Cal., for defendant Salsedo.

OPINION AND ORDER

KARLTON, District Judge.

I BACKGROUND

This is the second opinion written by me relative to the defendants' efforts to suppress certain evidence obtained by law enforcement in connection with defendants' alleged violations of 18 U.S.C. §§ 471, 472 (Counterfeiting). Initially the hearing on the motion to suppress was interrupted when I ordered that certain surveillance logs kept by Secret Service agents in connection with their investigation, be delivered to the defendants so that they could meaningfully cross-examine the Government witness. At the time of the order, the Government believed it had no duty to deliver the logs and desired appellate review. To facilitate that review I suppressed all of the evidence. United States v. Salsedo, 477 F.Supp. 1235 (E.D.Cal.1979).

During the course of the appeal the Government's position shifted. At oral argument the Government apparently stipulated to delivery of the logs for Court review to determine whether they constituted information helpful to the defendants' cross-examination. Given that stipulation, the Court of Appeals determined that the appeal was moot and remanded the matter to this Court. United States v. Torres, 622 F.2d 465 (9th Cir. 1980).

Upon remand the logs were then delivered to me. I determined that they contained relevant evidence and ordered them delivered to the defendants. Thereafter the evidentiary hearing was resumed and I am now able to reach the issue of the propriety of the seizure of the evidence in question.¹

II HEARSAY EVIDENCE IN SUPPRESSION HEARINGS

The Government presented but one witness at the suppression hearing, Agent Hamilton, the agent in charge of the investigation. Through Agent Hamilton, but over objection, I received both hearsay, and hearsay on hearsay. In United States v. Salsedo, supra, I wrestled with the difficult problems arising out of the fact that the Federal Rules of Evidence are not applicable to suppression hearings (see also United States v. Smith, 87 F.R.D. 693, (E.D.Cal. 1980)). Since, as I observed there, the nonapplicability of those rules could not mean that no rules applied, I determined that "in the absence of definitive guidance, it is this Court's intention to apply the common law of evidence interpreted `in the light of reason and experience' citations omitted." United States v. Salsedo, 477 F.Supp. at 1240. I further observed that "this creates no problem in the admissibility of hearsay since as I note in several places in the opinion, a suppression hearing deals with what the Government knew, whatever its source. In effect, in a `probable cause' hearing the hearsay evidence is admitted not for its truth, but for the purpose of establishing what was known. The Court must then weigh the knowledge in light of its reliability to determine if a reasonable officer would believe a crime had been committed and defendant was the culprit." Id. at n.8. Defendants argue, however, that in evaluating the reasonableness of the assessments of the Government's witness, there must be some limit to the kinds of hearsay that a reasonable officer could rely on, and thus some limits to what this Court should admit for purpose of testing the reasonableness of the officer's belief. The common law of evidence interpreted "in light of reason and experience" suggests, however, that the rulings on objections to hearsay in a suppression hearing are not issues of admissibility since hearsay in this context is a matter of the weight to be given such evidence.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Court addressed the same issue. In Matlock the defendant's cohabitant had consented to the search of a bedroom she shared with the defendant. The defendant moved to suppress the evidence seized pursuant to her consent, arguing she was without power to consent. The Government relied on her description of her relationship given to the investigating officers at the time of the search to prove both her consent and her right to consent. The Supreme Court observed that two issues were presented; one, whether or not the law enforcement officer's belief that she could give consent was reasonable and, two, as an objective fact was she able to provide consent?²

The Court first observed that as to the officer's subjective belief, hearsay was clearly admissible. This appears to be for the same reasons I found such evidence admissible in the first Salsedo decision. The second question, however, raises somewhat different problems. Ordinarily, of course, hearsay is simply not admissible for the purpose of proving a fact in issue (i. e., did the person giving consent in fact have authority to do so) as contrasted with the officer's state of mind. Nonetheless, the Court held that strict rules of hearsay need not be applied to preliminary questions of fact such as the admissibility of seized evidence. The Court's rationale for relaxing hearsay standards was based upon the ability of judges to appreciate that hearsay evidence may not be entitled to the same weight as other evidence. The Court first observed that the hearsay rule arose in the context of jury trials and was premised on the fear that a jury would not be able to properly assess the weight which should be given to hearsay. This problem, the Court felt, would not extend to judges. See United States v. Matlock, supra at 175, 94 S.Ct. at 995. Accordingly, the Court held that the trial court's exclusion of the hearsay evidence relating to the ability of the defendant's female companion to give consent was improper. Nonetheless, the trial court was not ordered to admit the seized evidence. On the contrary, the matter was remanded to the district court so that "the district court first reconsider the sufficiency of the evidence in the light of this decision and opinion." Id. at 177-78, 94 S.Ct. at 996. Inasmuch as the rule excluding hearsay is bottomed on the inability of a jury to properly evaluate the weight to be accorded hearsay, and given the fact that upon remand the district court was ordered to determine the sufficiency of the evidence, it appears that the proper role of hearsay in suppression hearings may be reasonably inferred. In a suppression hearing evidence is not to be excluded solely because it is hearsay. The hearsay nature of evidence goes to the weight to be accorded it rather than the admissibility of the evidence. Nonetheless it appears relatively clear that hearsay, because it does not permit of meaningful cross examination ("the greatest legal engine ever invented for the discovery of truth," 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)), it cannot be given the full weight that percipient testimony is accorded.³

Given the Matlock standards, I am now prepared to make the following findings. These findings of fact are based upon either the percipient witness testimony of Agent Hamilton or hearsay which for the purposes of this case I find admissible for probable cause determinations, or reliable. I do not, because I cannot, make a determination of declarant unavailability.⁴

III FINDINGS OF FACT

The local Secret Service maintains a relationship with those businesses that sell anything connected with printing. They request that they be informed of any customer seeking "high rag content" paper. Such paper is required for quality counterfeiting.

On June 15, 1979, a certain Mr. Diehop, the manager of the A. B. Dick Company in Stockton, California, informed Agent Hamilton of certain activities connected with defendant Rudolph Torres. He related that up until January of 1979, Torres had been in the printing business and A. B. Dick was one of his suppliers. Among the items sold to Torres was an A. B. Dick 360 printing press. Diehop reported that he had not seen Torres for approximately six months. On June 7, Torres and defendant Montes came into the store. Torres stated that he was helping a friend set up a print shop in Stockton. Torres purchased off-set printing plates and the supplies necessary to develop those plates. Diehop then related that on the 14th, Torres, Montes and a female returned to the A. B. Dick Company. At that time Torres borrowed a light table which was returned shortly thereafter. Torres signed a receipt using an address of 1433 S. Stanislaus, Stockton. On the same day he purchased various inks, the colors of which were appropriate to counterfeiting. By virtue of this tip the Secret Service began an investigation.

Over the next few days they learned that Torres had also sought parchment finish off-white high rag content paper from several other suppliers. Several days later on June 19, the Secret Service contacted the J. C. Paper Store and learned that they had sold Torres film negatives, chemicals to develop film and white ink. That day Marilyn Bradshore (who had previously been identified as connected with Torres) had sought high rag content paper. She asserted that the paper was needed to print stationery for a new attorney in town. On the same day agents followed Torres to San Jose, a city several hours away from Stockton. While there Torres visited a paper supplier. After he departed an agent entered the shop identifying himself. The shop clerk said "I know why you are here." The agent asked "what did that guy...