US v. Baker

• Citation: 888 F. Supp. 1521
• Decision Date: 16 June 1995
• Docket Number: Crim. No. 95-00416-01 DAE.
• Parties: UNITED STATES of America, Plaintiff, v. Lamar Duran BAKER, Defendant.
• Court: U.S. District Court — District of Hawaii

888 F. Supp. 1521

UNITED STATES of America, Plaintiff, v. Lamar Duran BAKER, Defendant.

Crim. No. 95-00416-01 DAE.

United States District Court, D. Hawai`i.

June 16, 1995.

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Wayne H. Tashima, Honolulu, HI, for defendant.

Edward Kubo, Jr., U.S. Attys. Office, Honolulu, HI, Daniel C. Stark, U.S. Dept. of Justice, Crim. Div., Washington, DC, for U.S.

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

DAVID ALAN EZRA, District Judge.

The court heard Defendant's motions on June 13, 1995. Wayne H. Tashima, Esq., appeared on behalf of Defendant. Assistant United States Attorney Edward Kubo and Department of Justice Attorney Daniel C. Stark, appeared on behalf of Plaintiff. After reviewing the motions and the supporting and opposing memoranda, the court DENIES Defendant's Motion to Suppress Evidence and DENIES in part and GRANTS in part Defendant's Motion to Suppress Statements.

BACKGROUND

Defendant Lamar Duran Baker ("Baker") moves this court to suppress all evidence seized pursuant to four search warrants issued in the instant case, and to suppress statements made by Defendant after arrest but before arraignment. Defendant's Motion to Suppress Evidence rests on three separate grounds: (1) no probable cause supporting the issuance of the search warrants; (2) stale evidence in support of the search warrants; and (3) items were seized beyond the scope of the search warrants. Defendant's Motion to Suppress Statements is also based on three grounds: (1) failure to take Defendant promptly before a magistrate without unnecessary delay renders the statements inadmissible; (2) neither statement was made within six hours following Defendant's arrest as required by 18 U.S.C. § 3501(c) and are thus inadmissible; and (3) the statements were taken in violation of Defendant's Miranda rights.

On April 13, 1995, a grand jury indicted Baker and Tracy Freeman-Mueck ("Freeman-Mueck"), charging them with conspiring to transport, inducing to be transported, and knowingly transporting an alien under the age of 18 years from Vancouver, British Columbia, Canada to the States of Washington and Hawaii, with intent that the alien engage in prostitution in violation of 18 U.S.C. § 371 (conspiracy), 18 U.S.C. §§ 2421, 2422, and 2423(a) (prostitution), and 8 U.S.C. §§ 1324(a)(1)(B) and 1324(a)(1)(D) (alien).

The affidavit in support of the search warrants, submitted by Special Agent Robert A. Murphy of the United States Border Patrol Anti-Smuggling Unit, contained the following information.

Special Agent Murphy personally interviewed "K.M.," the 17-year-old female Canadian citizen allegedly brought to Hawaii by Baker and Freeman-Mueck. K.M. states she was a prostitute in Vancouver, British Columbia, Canada in August 1993 when she met Tracy Freeman-Mueck, who put K.M. into contact with Baker in Hawaii. After informing Baker she was 17, Baker told K.M. he wanted her to come "work" for him as a prostitute in Hawaii. K.M. soon moved in with Freeman-Mueck and began giving all her prostitution monies to Freeman-Mueck, who wired the money to Baker in Hawaii. On September 1, 1993, Freeman-Mueck instructed K.M. to go with another person and cross the international border into the State of Washington. On September 2, 1993, K.M. flew to Hawaii from Washington at Baker's instruction, using money wired by Baker in Honolulu to K.M. in Washington. Special Agent Murphy obtained Hawaiian Airlines records confirming K.M.'s flight, which indicate that the reservation was made in Honolulu, Hawaii.

K.M. claims that she worked as a prostitute for Baker in Waikiki during September and October 1993. K.M. admitted that while "working" in Hawaii she and another prostitute stole a Rolex watch from the hotel bathroom of a Japanese tourist at the Outrigger Prince Hotel in Waikiki, and that they gave the watch to Baker. She described the watch as having rubies and diamonds surrounding the face. A police theft report was filed on October 10, 1993, by a Tomio Sasaki which accurately corroborated K.M.'s account.

According to K.M., she left Hawaii on November 1, 1993, but left several items, mostly clothes and accessories, in the apartment she shared with another prostitute, allegedly rented by Baker.

Special Agent Murphy spoke to Detective Randy Peterson of the Vancouver Police Department, a police expert in courts of Canada in the area of prostitute/pimp relationships, cultures and customs. According to Detective Peterson, a group of prostitutes and their pimp is known as a "family." Items such as clothes and belongings are considered the pimp's property and are kept by the pimp to be shared among his prostitutes. In Detective Peterson's expert opinion, items left behind by K.M. in 1993 would still be used by Baker's family of prostitutes in 1995.

Detective Peterson personally met Baker around April, 1993 in the course of his intelligence-gathering vice duties in Vancouver, Canada. Detective Peterson alleges that Baker admitted to him that he was a pimp, and that he had a number of prostitutes working for him in Vancouver, one of whom he identified as Freeman-Mueck. Police intelligence in Honolulu also identifies Baker as a renown pimp, with anywhere from 3 to 6 prostitutes working for him in the Waikiki area since at least 1993.

K.M. stated that Baker lived at the Nauru Towers in Honolulu. Rental documents reviewed by Special Agent Murphy confirmed Baker has been renting an apartment at Nauru Towers since 1993.¹ Special Agent Murphy also reviewed rental documents for an apartment Baker has been renting on South Street² since September, 1994, allegedly for his prostitutes' use. A Jaguar (California License No. 3DJU760) owned by Baker was seen parked in front of both addresses several times during surveillance operations in April 1995, and Baker was taken into custody while in the vehicle.

Baker was arrested at approximately 4:15 p.m. on Friday, April 14, 1995, pursuant to a grand jury indictment issued on Thursday, April 13, 1995. He was then interviewed twice before his arraignment the following Monday. The government asserts that Baker was orally given his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at the time of his arrest and at the time of his first and second interviews. The government further asserts that Baker stated that he understood his rights, and that he made voluntary oral waivers of his rights each time they were read to him. No written, signed waivers exist. At the pre-trial hearing Baker admitted receiving and understanding his rights at the time of his arrest, but denied having been re-Mirandized.

The first interview commenced at about 12:05 a.m. on Saturday, April 15, 1995, approximately eight (8) hours after Baker's arrest. During this session Baker generally denied being a pimp and taking money from prostitutes, but made some factual admissions connecting him to certain alleged prostitutes.

After the first interview ended, Baker asked to speak privately with Detective Peterson, the Canadian officer assisting with the operation. Notes taken by Detective Peterson soon after they spoke reveal that at the end of their conversation Baker told Peterson "he wanted to speak with a lawyer and read his full indictment to see where he stood." See Peterson notes at 4. This request to Peterson was not relayed to United States Agents.

The second interview commenced at about 11:10 a.m. on Sunday, April 16, 1995, more than 42 hours after Baker's arrest. During this session Baker made several statements regarding his awareness of recent surveillance of him by law enforcement agents, his familiarity with the pimping community in Waikiki, his past bribery of law enforcement agents, his access to information about police activities, and his ability to buy large quantities of drugs and give information to agents regarding an "escort service" and "dirty" law enforcement officers.

Baker was arraigned on Monday, April 17, 1995.

DISCUSSION

I. Motion to Suppress Evidence

A. Probable Cause for Issuance of Search Warrants

In evaluating the sufficiency of an affidavit for a search warrant, a magistrate need only have a "substantial basis" for concluding that probable cause existed based on the totality of the circumstances. Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984); Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1308 (9th Cir.1994); United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). "The affidavit must be read as a whole and given a common sense and realistic interpretation." United States v. Traylor, 656 F.2d 1326, 1330 (9th Cir.1981). Finally, a magistrate's determination of probable cause supporting the issuance of a search warrant is to be accorded great deference, and should be reversed only where clearly erroneous. United States v. Schmidt, 947 F.2d 362, 371 (9th Cir.1991); United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990).

Applying these standards to the facts in the instant case, the court easily finds that there was sufficient evidence to provide a "substantial basis" for the magistrates' findings of probable cause supporting the issuance of the search warrants.

The affidavit contains details about how K.M. agreed to come to Hawaii to prostitute for Baker; how he arranged and paid for her transport to Hawaii; and how she prostituted for him while in Hawaii. Viewed in conjunction with statements by law enforcement agents that Baker's prostitution activities are notorious and ongoing, and in light of corroborating documentary evidence, a "substantial basis" for the magistrates' probable cause determinations is evident.

Moreover, the specificity of the items K.M. left behind, and Detective Peterson's expert opinion that such items would still be in use by the Baker's "family" of...