US v. Fox

• Decision Date: 24 March 1992
• Docket Number: No. CR-S-91-102-PMP (LRL).,CR-S-91-102-PMP (LRL).
• Citation: 790 F. Supp. 1487
• Parties: UNITED STATES of America, Plaintiff, v. Danielle FOX, et al., Defendants.
• Court: U.S. District Court — District of Nevada

790 F. Supp. 1487

UNITED STATES of America, Plaintiff, v. Danielle FOX, et al., Defendants.

No. CR-S-91-102-PMP (LRL).

United States District Court, D. Nevada.

March 24, 1992.

Thomas R. Green, Asst. U.S. Atty., Las Vegas, Nev., for the U.S.

Oscar Goodman, Las Vegas, Nev., for defendant Austin.

Kristine K. Smith, Asst. Federal Public Defender, Las Vegas, Nev., for defendant Fox.

Geraldine K. Hughes, Las Vegas, Nev., for defendant Murdock.

ORDER

PRO, District Judge.

On July 5, 1991, Defendants filed a Motion to Suppress (# 34), a Supplement (# 46) and Amended Supplement thereto on August 20 and 21, 1991, respectively. The Government filed a Response to Defendants' Motion (# 42) on July 5, 1991. On December 31, 1991, Magistrate Judge Leavitt entered a Report and Recommendation (# 68) recommending the denial of Defendants' above-referenced Motion. After a Stipulation to Continue the Deadline for filing Objections was approved by the Court, Defendants filed a Joint Objection (# 71) on February 28, 1992, in accordance with Local Rule 510.2 of the Rules of Practice of the United States District Court for the District of Nevada, to which the Government Responded (# 75) on March 20, 1992. On March 23, 1992, the Clerk of Court referred Defendants' Motion to the undersigned for consideration.

The Court has conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Local Rule 510.2 and finds that the evidence supports the factual findings set forth in Judge Leavitt's Report and Recommendation entered December 31, 1991.

IT IS THEREFORE ORDERED that the Report and Recommendation of Magistrate Judge Leavitt entered December 31, 1991 (# 68) is affirmed and Defendants' Motion to Suppress (# 34) is denied.

United States of America, Plaintiff,

v.

Curtis Austin, Danielle Fox and Crystal Murdock, Defendants.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

(Motion to Suppress — # 34)

Received and Filed Dec. 31, 1991

LEAVITT, United States Magistrate Judge.

The defendants have been charged in a five-count indictment with conspiracy to distribute cocaine; possession with the intent to distribute cocaine, heroin and marijuana; and using and carrying a firearm during and in relation to a drug trafficking crime; in violation of 21 U.S.C. §§ 846 and 841(a)(1), and 18 U.S.C. § 924(c)(1), respectively. They have filed a Joint Motion to Suppress (# 34, filed July 5, 1991), in which they seek an order suppressing as evidence all the items seized by the police from Murdock's apartment on April 3, 1991, pursuant to a search warrant issued by a local justice of the peace.

The defendants contend that (1) the affidavit on which the search warrant was based does not support a finding of probable cause because it contains false or misleading statements and material omissions which were made either deliberately or with reckless disregard for the truth; and (2) the manner in which the police executed the warrant, namely, by breaking into the apartment without first knocking and announcing their identity and purpose, was unlawful.

1. The Evidence

On April 3, 1991, at approximately 11:00 p.m., a search warrant was issued by Justice of the Peace William Jansen directing the police to search an apartment at 6800 E. Lake Mead Boulevard in Las Vegas for cocaine, drug paraphernalia and documents identifying the possessor of the premises. The affidavit in support of the warrant was sworn to by Detective Ray Sheffer of the Las Vegas Metropolitan Police Department (Metro).¹ Shortly thereafter the warrant was executed by Metro police officers. Initial entry was made unannounced and forcibly by officers of the SWAT unit. The defendants Fox and Murdock were inside the apartment and were arrested. Seized, among other things, were a large quantity of drugs and several firearms.

The April 3 raid and ensuing arrests of the defendants brought to a close an investigation which had begun two and a half weeks earlier into the alleged drug trafficking activities of defendant Curtis Austin. On March 15, 1991, Det. Sheffer was informed that a woman by the name of Sharon Bishop wished to talk to the police about Austin's drug distribution organization. Sheffer responded to the emergency room at Valley Hospital, where Bishop was being treated for head wounds which she claimed were the result of a pistol whipping by Austin. Bishop told Sheffer she was giving this information to the police to get even with Austin for beating her and to protect herself against being arrested for her own admitted involvement in Austin's drug trafficking activities.

During the interview with Sheffer at the hospital, and during another interview later that day in the DEA office with Sheffer and Special Agent Patrick Dawson, Bishop said that she had been Austin's girlfriend for the past eight months, during which time she had been working as an accountant in Austin's drug distributing organization. She said that Austin was regularly transporting between two and nine kilograms of cocaine and heroin per week from Southern California into Clark County, Nevada. According to Bishop, the drugs were then being distributed locally for Austin by Danielle Fox, who was a "gang banger" (i.e., a member of a street gang) and who at one time had been arrested for murder. She admitted that she had been a heroin user herself, though she did not appear to be a user at the time of the interviews. A records check through SCOPE and NCIC revealed a pending local embezzlement charge against her. Although the subject of paying her money for her cooperation "might have come up," no agreement was made with her either to pay her money, to assist her with the pending embezzlement charge or to immunize her from prosecution for her illegal activities in Austin's organization. Sheffer did tell her, however, that her assistance to law enforcement would be kept confidential.

Following up on Bishop's statements that Fox was a "gang banger" who had been arrested for murder, Sheffer ran Fox's name in SCOPE and found that Fox had indeed been arrested for murder. The record further reflected that the charge had been dismissed. SCOPE also contained an entry which indicated possible gang affiliation. Sheffer called Metro's Gang Unit, and was advised that Fox was "a self-admitted member of the Gerson Park Kingsmen," which Sheffer believed was affiliated with a gang known as the "Crips."²

In response to his inquiry concerning the murder charge, Sheffer was provided with the District Attorney's case file. The only document in the file which he read was the affidavit of W.R. Vanlandschoot, an officer with the North Las Vegas Police Department (NLVPD). This affidavit had been submitted to the District Attorney in support of Vanlandschoot's application for an arrest warrant, and was Sheffer's sole source of information concerning the details of the murder case against Fox.³ The Vanlandschoot affidavit essentially describes the circumstances surrounding a drug-related murder. The identification of Fox as the perpetrator was based on information provided by a convicted murderer named Alfred Adams. The Vanlandschoot affidavit reflected that although Adams had originally told the police he had seen nothing and did not know who the killer was, three weeks later, when he was in jail on loitering and drug charges, Adams changed his story and identified Fox as the killer.⁴

During the two and a half weeks following their initial contact, Bishop regularly provided Sheffer with up-to-date information on Austin's activities and associates. On April 3, Bishop advised Sheffer that she and Austin would be delivering a large quantity of drugs that night from Southern California to Murdock's apartment at 6800 E. Lake Mead Boulevard. Bishop provided a description of the cars that would be used, and the route that would be taken from California. She also informed Sheffer that in Murdock's apartment there were a number of weapons, including an AK-47, an Uzi, and some shotguns, one of which was usually propped up against the wall just inside the front door. Sheffer assured her that the police would not make their move until after she had gotten away from the premises.

Sheffer and Deputy District Attorney Thomas Leen then sat down to draft an affidavit in support of a search warrant. Concerned for Bishop's safety and her viability as a continuing source of information, they were confronted with the question of how to keep her identity confidential. Leen testified that because there was no provision under state law for the sealing of search warrant affidavits, it did not occur to him to request a sealing order.⁵ They did not simply refer to Bishop as a confidential informant because presumably the information was so individualized that Bishop's identity would be apparent to anyone in Austin's organization who read the affidavit. Instead they disguised Bishop's identity by creating a fictitious informant and attributing to that informant the information Bishop provided about Austin and herself.⁶ As to the so-called informant's reliability, the affidavit states, at page 2: "To my knowledge, the C/I has not been previously been (sic) proven to be reliable in the capacity of a police informant, however, as will be detailed in this affidavit, every piece of information given to myself (sic) by the C/I in this case has been checked out by myself (sic) and/or other police officials and has proven to be accurate including the particulars as set forth herein."⁷

When the affidavit was completed, and included the last-minute, handwritten surveillance information, Leen and Sheffer went to Judge Jansen's home. What happened after Jansen read the affidavit and was about to administer the oath to Sheffer is the subject of conflicting testimony. Both Sheffer and Leen testified that before the oath was administered, Leen told Jansen that the informant was in fact Sharon Bishop.⁸ Indeed, Leen...