case no. 07-20124-01/02-cm response to evidence suppression
TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, ))Plaintiff, )
)vs. ) Case No. 07-20124-01/02-CM
)
CARRIE MARIE NEIGHBORS )and )
GUY MADISON NEIGHBORS, ))
Defendants. )
)
RESPONSE TO DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE
The United States of America, by and through undersigned counsel, responds in
opposition to the defendants Joint Motion to Suppress Evidence filed July 27, 2009. In
their motion, the defendants seek an order of the Court suppressing evidence seized
pursuant to search warrants issued on November 30, 2005, and executed on December
2, 2005, and evidence seized pursuant to search warrants issued on July 5 and July 6,
2006, for a residence located at 1104 Andover Street, and a business located at 1904
Massachusetts Street, both in Lawrence, Douglas County, Kansas. Specifically the
defendants raise three claims: first that there was insufficient probable cause for issuance
of the first search warrant on November 30, 2005, for the Andover residence (Document
[Doc.] 190 at pp. 1-6); second that the seizure of evidence during the execution of the
warrants for the Andover residence on December 2, 2005, exceeded the scope of the
warrants (Doc. 190 at pp. 6-9); and last, that the warrants issued on July 6 and July 7,
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The defendants make no claim that the information was stale, false or provided1
in reckless disregard of the truth.
2
2006, were based upon on evidence that was the fruit of the poisonous tree because it was
based on evidence illegally seized from the first warrants executed on December 2, 2009.
(Doc. 190 at pp 9-11). The defendants request that all evidence seized during each of the
searches be suppressed. As the following discussion will establish, none of these claims1
are meritorious and the motion to suppress should be denied in its entirety.
I. First Search Warrant for 1104 Andover
In the search warrant affidavit, Officer Mickey Rantz of the Lawrence, Kansas,
Police Department, provided certain information that established probable cause to search
the residence at 1104 Andover Street, Lawrence, Kansas, for evidence relating to the state
crime of receiving stolen property in violation of KSA 21-3701 (A)(4) and to the federal
offenses of conspiracy in violation of 18 U.S.C. 371 and wire fraud in violation of 18
U.S.C. 1343. The defendants do not challenge the sufficiency of the evidence of criminal
conduct by the defendant, Carrie Neighbors, that formed the basis for the searches of the
defendants residence on Andover Street and of their business establishment, the Yellow
House store at 1904 Massachusetts Street, Lawrence, Kansas. (In the case before this
court the defendants concede that the affidavit for the first search executed on December
2, 2005, would satisfy the probable cause requirements and nexus for the search of the
Yellow House store.) (Doc. 190 at p. 7) The same information was provided to the district
judge with respect to the search of the residence on Andover Street. Instead, their motion
to suppress is premised on their claim that the information obtained from two trash pulls
conducted on November 16 and November 30, 2005, did not establish probable cause to
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believe that evidence of the crimes described in the affidavit would be found at the Andover
residence.
A. Probable Cause Existed to Issue the Search Warrant.
In this case, probable cause clearly existed to justify the issuance of the search
warrant for the first search warrant issued on December 2, 2005, for the residence at 1104
Andover. A copy of that affidavit and the warrant for the search of the residence are
attached hereto as Exhibit 1.
Courts in this District have stated on several occasions that a determination of
probable cause by a neutral judge or magistrate is to be accorded great deference. See
United States v. Reno, 196 F.Supp.2d 1150, 1157 (D.Kan. 2002) (citing United States v.
Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997)); see also, United States v. Downes, 2001
WL 121951, *3 (D.Kan., decided Jan. 12, 2001). They have also stated that:
In deciding a suppression motion based upon the asserted failure ofthe affidavits to provide probable cause for the warrant, the reviewing courtmust remember that the magistrate is permitted to draw reasonable
inferences from the affidavits. . . See United States v. Edmonson, 962 F.2d1535, 1540 (10th Cir. 1992); United States v. Peveto, 881 F.2d 844, 850(10th Cir. 1989), cert. denied, 493 U.S. 943 (1989). When reviewing amagistrate's issuance of a search warrant the court must determine whetherthe magistrate had a substantial basis for concluding that probable causeexisted. Illinois v. Gates, 462 U .S. 213, 236 (1983).
United States v. Pierce, 2000 WL 821386, *1 (D.Kan. 2000).
According to Gates, supra, the test to be employed by a reviewing court is the
totality of the circumstances, because [p]robable cause is a fluid concept turning on the
assessment of probabilities in particular factual contexts not readily, or even usefully,
reduced to a neat set of legal rules. Gates, 462 U.S. at 232. The Tenth Circuit Court of
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Appeals has stated that [t]he affidavit should be considered in a common sense,
nontechnical manner. Edmonson, 962 F.3d at 1540 (quoting United States v. Massey,
687 F.2d 1348, 1355 (10th Cir. 1982)).
After a practical, common-sense review of the facts asserted in the Application for
a warrant to search the residence on Andover Street, Judge Steven Six of the District Court
of Douglas County found probable cause for the issuance of the warrant. That
determination of probable cause must be given great deference, and should be overturned
only if lacking a "substantial basis."Illinois v. Gates, 462 U.S. at 236. The Supreme Court
instructs that close calls regarding probable cause determinations should be resolved in
favor of the issuing magistrate judge. Massachusetts v. Upton, 466 U.S. 727, 734
(1984)(per curiam). Furthermore, when reviewing the denial of a motion to suppress, [the
circuit] court considers the totality of the circumstances and views the evidence in the light
most favorable to the government. United States v. Colonna, 360 F.3d 1169, 1173 (10th
Cir. 2004) (quoting United States v. Higgins, 282 F.3d 1261, 1269 (10 Cir. 2002))th
According to the United States Constitution, a valid search must be based on a
warrant which was issued on the basis of probable cause. U.S. Const. Amend. IV. The
proponent of the motion to suppress bears the burden of demonstrating that sufficient
probable cause to issue the warrant was not shown. SeeUnited States v. Madrid, 30 F.3d
1269, 1274 (10th Cir. 1994) (citing United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.
1991), cert. denied, 513 U.S. 1007 (1994); United States v. Moore, 22 F.3d 241, 243 (10th
Cir.), cert. denied, 513 U.S. 891 (1994).
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Probable cause requires a nexus between suspected criminal activity and the place
to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th Cir. 1998).
Probable cause to issue a search warrant exists when the supporting affidavit sets forth
sufficient facts that would lead a prudent person to believe that a search of the described
premises would uncover contraband or evidence of a crime. Id. (citing United States v.
Burns, 624 F.2d 95, 99 (10th Cir. 1980). To establish the required nexus, the affidavit
supporting the search warrant need not contain direct evidence or personal knowledge that
the items sought are located at the place to be searched. Rather, the issuing magistrate
judge may draw reasonable inferences from the material provided in the warrant
application. United States v. Rosand, 145 F.3d at 1205.
The Government respectfully submits that the information contained in the affidavit,
when considered in combination with the reasonable inferences Judge Six was allowed to
draw from that information, provided the judge with probable cause to believe that items
sought might be found at the residence. In addition, the trash pull on November 16, 2005,
produced numerous documents, many of which bore the business address of the Yellow
House Store at 1904 Massachusetts St., Lawrence, Kansas, relating to the sale and
shipping of items. (Exhibit 1 at p. 20.) The evidence from that trash pull alone was
sufficient to establish probable cause to believe that books, record sheets, receipts,
check/check ledgers, eBay documents and other documentation recording the sale, deliver
and possession of items be sold or purchased by or through the business located at 1904
Massachusetts, including computers and various types of computer equipment and
[p]ersonal property tending to establish identities of persons(s) in control of the business
. . . and the residence. . . would be found at the Andover residence. Exhibit 1 at p. 34.
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A subsequent trash pull on November 30, 2005, confirmed that at least one
additional document pertaining to the sale and/or shipment of items by the Yellow House
Store on Massachusetts had been transferred to the Andover residence. (Exhibit 1 at p.
31). That fact, considered together with the evidence recovered from the November 16
trash pull, gave rise to the reasonable inference that the Yellow House owners transferred
documents relating to the Yellow House business to the residence on Andover and would
be found at that location. SeeUnited States v. Berrocal, 232 F.3d 902, 2000 WL 1629437
*2 (10th Cir. 2000) (Probable cause established even though court relied only on
information from a citizen informant and evidence obtained from a single trash cover.)
Viewing the evidence contained in the affidavit for the first search warrant for the
residence at 1104 Andover Street in the light most favorable to the government, it is clear
that, under the totality of the circumstances, there was a substantial basis for Judge Sixs
conclusion that probable cause existed and that conclusion is to be accorded great
deference. According Judge Sixs determination the deference it deserves, under the facts
presented here, defendants challenges to the probable cause contained in the first
affidavit for 1104 Andover Street should be overruled and denied.
B. Good Faith
Even if the affidavit fails to establish probable cause, the court should apply the
good faith exception to the exclusionary rule as set forth in United States v. Leon, 468 U.S.
897, reh'g denied, 468 U.S. 1250 (1984). In Leon, the Court reasoned that when an officer
relies in good faith on a neutral magistrate's judgment that probable cause justifies the
issuance of a warrant, excluding evidence acquired pursuant to the warrant does not
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further the deterrent function of the exclusionary rule. "As the court made clear in Leon,
the exclusionary rule is designed to deter police misconduct rather than to punish the
errors of judges and magistrates." United States v. Cook, 854 F.2d 371, 374 (10th Cir.
1988).
There is no suggestion that the Douglas County district court judge issued the
warrant in reliance on a deliberately or recklessly false affidavit, or that he abandoned his
judicial role and failed to perform in a neutral and detached manner, or that the warrant
itself was so facially deficient that an officer could not reasonably have believed it to be
valid. The only issue is whether the warrant was based on an affidavit "so lacking in indicia
of probable cause as to render official belief in its existence entirely unreasonable." United
States v. Leon, 468 U.S. at 923. Absent such a finding the defendants motion must fail.
The search team reasonably relied on the validity of the search warrant was
executed at 1104 Andover. In United States v. Ross, 456 U.S. 798, 823 (1982), the
Supreme Court held that a warrant issued by a magistrate normally suffices to establish
that a law enforcement officer has acted in good faith in conducting the search. Officer
Rantz, the affiant, will testify at the motion hearing of his belief that the issuing magistrate
had made an appropriate determination of existing probable cause. Clearly good faith was
objectively and reasonably present in the execution of the search warrant in question.
II. All Warrants were Properly Executed on December 2, 2005
Defendants next allege that the warrant must be suppressed because the evidence
seized as a result of the second warrant, the piggy back warrant, executed on the
Andover property on December 2, 2005, and the first search warrant executed on the same
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Here, the defendants do not challenge the probable cause determination made2
with respect to the warrant for the store or for the piggy back warrant for the residencewhich issued on December 2, 2005, or claim that the information in either of theaffidavits was stale, false or provided in reckless disregard of the truth
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day at the Yellow House business property grossly exceeded the scope of the property
which was seized. This claim is without merit.2
The proponent of a motion to suppress bears the burden of proof. United States
v. Moore, 22 F.3d 241, 243 (10th Cir. 1994). The defendants fail to articulate in their
Motion to Suppress which evidence they contend was improperly seized by an over-broad
application of the terms of these warrants. Consequently, they have not sustained their
burden of proof on this issue. Furthermore, the government respectfully submits that a
review of the information in the affidavit and the return establishes that they cannot sustain
that burden.
A. Piggy back warrant of December 2, 2005 for Andover property
Defendants next argue that the executions of the second search warrants for the
residence and the business executed December 2, 2005, were over-broad and require
suppression of all evidence seized at that time. (Doc. 190 at pp. 9-11). These claims are
without merit.
1. Warrant was sufficiently particularized
While inside the residence executing the first search warrant for the Andover
property on December 2, 2005, the agents discovered a hidden room next to the
defendants bedroom that contained a marijuana grow operation. It was immediately
apparent to the experienced searching officers that the plants were marijuana, establishing
probable cause to seize them as contraband. Because the marijuana plants were
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unrelated to the crimes listed in the affidavit in support of the first warrant for the residence,
in an abundance of caution the officers applied for and obtained the second, piggy back
warrant which authorized them to seize various items of evidence relating to the marijuana
grow operation. (Exhibit 2, Affidavit and Piggy Back Search Warrant for 1104 Andover,
attached)
The items that the piggy back search warrant for 1104 Andover Street authorized
the agents to seize included:
1. Marijuana, marijuana plants, and marijuana seeds.
2. Plastic baggies, scales, and other drug paraphernalia used in thecultivation, processing, use and possession of the above mentioneddrug(s).
3. Any books, record sheets, ledgers and other documentation recordingthe sale, delivery and possession of the above mentioned drug(s).
4. Physical property to include but not limited to, items that appear new,items that are in their original packaging, and items with their origianlsale tag(s) attached.
5. New and discarded packaging material used to ship and receiveitems.
(Exhibit 2, at p. 6.) Because the agents had unexpectedly observed new, labeled or boxed
items of merchandise and packaging materials at the residence that matched items known
to have been stolen, they included a request to search for and seize new physical property
as described in the warrant. Thereafter, with few exceptions, only items covered by the
first warrant and this piggy back warrant were seized at the residence on December 2,
2005.
Items seized during the execution of both search warrants at the residence which
arguably were not authorized by either warrant were: several bicycles (Exhibit 3, Evidence
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Hereafter, all references to item numbers will refer to the Evidence Custody3
Sheet for the date and place relating to the search in question. Here, Ex. 3 relates tothe search on December 2, 2005 or the Andover residence.
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Custody Sheet for search of Andover residence on December 2, 2005, Item Nos. 44, 45,
48, 49, 50, 51 and 52) , 11 firearms and ammunition (Item Nos. 56, 57, 58, 59, 60, 61, 62,3
63, 64, 65, 66), and a prescription pill bottle with drugs dispensed in the name of Anthony
Reyes. (Item No. 67). These items were seized because the officers had probable cause
to believe that they were contraband or were evidence of a crime.
When determining the admissibility of evidence seized in plain view, "[t]he courts
have required the government to satisfy a three-prong test: (1) the officer was lawfully in
a position from which to view the object seized in plain view; (2) the object's incriminating
character was immediately apparent -- i.e. the officer had probable cause to believe the
object was contraband or evidence of a crime; and (3) the officer had a lawful right of
access to the object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994),
quoting Horton v. California, 496 U.S. 128, 136-37 (1990);see also United States v. Evans,
966 F.2d 398, 400 (8th Cir.), cert. denied ___ U.S. ___, 113 S. Ct. 502 (1992). The
defendants do not claim that the officers were not lawfully in a position to view the objects
or that they did not have a lawful right of access to the object itself.
The "immediately apparent" standard does not require that a "police officer 'know'
that certain items are contraband or evidence of a crime." Texas v. Brown, 460 U.S. 730,
741 (1983). Rather, it requires "probable cause to associate the property with criminal
activity." Id., 460 U.S. at 741-42 (emphasis deleted) (citations omitted). Probable cause
demands not that an officer be "sure" or "certain" but only that the facts available to a
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reasonably cautious man would warrant a belief "that certain items may be contraband or
stolen property or useful as evidence of a crime." Id., at 742.
Furthermore, [I]tems named in an impermissibly broad portion of a warrant may
nevertheless be seized pursuant to the plain view doctrine so long as the governments
plain view seizure scrupulously adheres to the three-prong Horton test. United States v.
Soussi, 29 F.3d at 572.
During the investigation, the officers had been informed that on several occasions
stolen bicycles had been recovered at the Yellow House Store. (See Exhibit 1 at pp. 8 &
10.) The officers also knew that the officers searching the store on December 2 had
verified that a bicycle found at the Yellow House Store had been stolen and that they had
seized it as evidence and as contraband. That information gave rise to the reasonable
inference on the part of the officers searching the residence that the used bicycles were
being kept in the basement of the residence rather than in the store where most second-
hand merchandise could be found, because the defendants knew that they were stolen
and did not want them in a place open to the public where they could be located by police
officers and confiscated for return to the rightful owners. Under these circumstances,
"probable cause to associate the property with criminal activity was immediately apparent
to the searching officers and they acted reasonably when they determined that the bicycles
were contraband and evidence of the crime of receiving stolen property.
The firearms were clearly contraband because they were found in close proximity
to the marijuana plants and to a large bag of dried marijuana and marijuana pipes, giving
rise to the reasonable conclusion that the guns were contraband and evidence because
they were in the possession of drug manufacturers and/or drug users, who are prohibited
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under both state and federal criminal statutes from possessing firearms. (See K.S.A. 21-
4204(1) and 18 U.S.C. 922(g)(3)). Finally, the drugs in the pill bottle dispensed in the
name of Anthony Reyes were possessed in violation of state and federal criminal statutes
prohibiting the possession of medications without a proper medical prescription.
Clearly, the warrants were sufficiently particularized to provide the necessary
guidance to the seizing agent about what items could properly be seized. The seizure of
items arguably not covered by the warrant was done because they were in plain view and
there was probable cause to believe that the items were contraband or evidence because
they were similar in kind to stolen property referenced in the affidavit. Given these facts,
it is clear that the second search warrant was not overly broad and that the agents properly
executed the search of the residence on Andover on December 2, 2005, because the
agents were clearly able to determine which items the warrant authorized them to seize.
The other items seized constituted contraband or evidence of a crime found in plain view.
Consequently, defendants claims that the search of the residence on December 2, 2005,
pursuant to the warrants was overly broad is without merit and the motion to suppress the
items seized from that location on that date should be denied.
2. Severability
Assuming, arguendo, that the Court determines that the provision of the piggy back
warrant that authorized the agents to seize [p]hysical property to include but not limited
to, items that appear new, items that are in their original packaging, and items with their
original sale tag(s) attached was overly broad, suppression is not required where the valid
portions of a warrant are
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sufficiently particularized, distinguishable from the invalid portions and makeup the greater part of the warrant,(citation omitted) we agree with the districtcourt that severance was appropriate in this case. Under the severancedoctrine, evidence seized pursuant to the invalid portions of the warrant mustbe suppressed, but evidence seized pursuant to the valid portions of the
warrant or lawfully seized during the execution of the valid portions isadmissible.
United States v. Sells, 463 F.3d 1148, 1161 (10th Cir. 2006) (quoting United States v.
Naugle, 997 F.2d 819, 822-23 (10th Cir. 1993) (Doctrine of severability applies if valid
portions of the warrant are sufficiently particularized, distinguishable from the invalid
portions, and make up the greater part of the warrant). The holding in Naugle has been
more generously characterized to prohibit severability only when the valid portions of the
warrant is not substantial,
expressed not in terms of what was seized but rather in terms of what searchand seizure would have been permissible if the warrant had only namedthose items as to which probable cause was established. (footnotesomitted). Accordingly, we reject the proposition that the extent of the actualsearch or the number of items seized is the relevant criteria to determinewhether the valid portions of the warrant make up the greater part of thewarrant.
United States v. Sells, 463 F.3d at 1159. The greater part of the warrant analysis
focuses on the warrant itself rather than upon an analysis of the items actually seized
during the search. Id.
In this case, the valid parts of both warrants for the Andover residence executed on
December 2, 2005 are clearly distinguishable from the one provision in the piggy back
warrant that could arguably be invalid and the valid portions make up the greater part of
the warrants. Consequently, if the Court determines that the provision allowing for the
search and seizure of physical property to include but not limited to, items that appear new,
items that are in their original packaging, and items with their original sale tag(s) was overly
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broad, only evidence seized pursuant to that provision should be suppressed. That
evidence is easily distinguishable from that evidence that was seized under the valid
portions of the warrants and included seizure of documents listed in the first search warrant
and for marijuana and drug-related items and packaging .
B. Search of Yellow House business on December 2, 2005.
1. Items seized pursuant to the search warrant.
The defendants next claim that the evidence seized at the Yellow House Store on
December 2, 2005, should be suppressed because the officers grossly exceeded the
scope of the property that was to be seized. As before, they do not identify which items
they claim were improperly seized or how the scope of the warrant was exceeded.
Consequently, the United States again asserts that failure to do so causes this claim to fail
because the defendants have not satisfied their burden. In an abundance of caution,
however, the United States will address what it believes are the issues raised by the
defendants motion to suppress the search of the business in December, 2005.
A review of the warrant in question reveals that the warrant authorizing the entry
on to the Yellow House property was drawn with particularity. The items that the search
warrant authorized the agents to seize included:
Any book, record sheets, receipts, checks/check ledgers, eBay documents,and other documentation recording the sale, delivery and possession ofitems being sold or purchased by or through the business located at 1904Massachusetts, including any: CPUs, floppy disks, hard disks, or any other
means of storing electronic date. The data stored on any computer, orremovable media located at the above listed business. Personal propertytending to establish the identities of person(s) in control or employed at thebusiness to be searched including, but not limited to, employmentapplications, tax information and personnel files. Physical property to include
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Items that were purchased by Carrie Neighbors during the three dates4
mentioned in the affidavit were listed with particularity in the search warrant.
See Exhibit No. 4 relating to items seized pursuant to the warrant which5
included: documents, Item Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 15, 16 17, 18, 25, 26, 32, 99,101,102 amd 1-3; items capable of storing electronic data, Item Nos. 11, 12, and 14;computers, Item Nos. 13, 19, 24 and 110; items purchased by C. Neighbors fromundercover officer between 11/07 and 11/30/2005, 80, 82, 84, 85 and 95
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(Items from sale on 11/07/2005)... Items from sale of 11/18/2005) ... (itemsfrom sale on 11/29/2005).4
(Exhibit 1 at p. 35.) The specificity of the items authorized to be seized clearly establishes
that the warrant itself was not overly broad and it legally justified the seizure of all of the
items that fall within the scope of the warrant. Those items include all of the documents
seized at the business on December 2, 2005, the devices capable of storing data, and any
items of merchandise that were purchased by Carrie Neighbors from the affiant on
11/07/2005, 11/18/2005 and 11/29/2005, dates on which Carrie Neighbors had actual
knowledge that the seller claimed the property had been swiped or nabbed. (Exhibit5
1 at pp. 17, 24.)
2. Items in plain view seized pursuant to probable cause
The defendants argue that the number of items seized by the officers that were not
specifically authorized to be seized under the warrant converted what may have been a
valid search into a general search requiring suppression of all of the evidence seized at the
business on December 2, 2005. This claim is without merit because the warrant was
narrowly drawn and the additional items not covered by the warrant consisting of new
personal property were seized because the agents found them in plain view and had
probable cause to believe each was contraband or evidence of a crime. The agents
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scrupulously followed the Horton requirements: (1) the officer was lawfully in a position
from which to view the object seized in plain view; (2) the object's incriminating character
was immediately apparent -- i.e. the officer had probable cause to believe the object was
contraband or evidence of a crime; and (3) the officer had a lawful right of access to the
object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994), quoting Horton
v. California, 496 U.S. 128, 136-37 (1990). The officers were lawfully in the Yellow House
Store pursuant to the search warrant and authorized to search areas, like closets, where
documents could be stored.
If the interest in privacy has been invaded, the violation must have occurredbefore the object came into plain view and there is no need for aninadvertence limitation on seizures to condemn it .... reliance on privacyconcerns that support [the prohibition on general searches and generalwarrants] is misplaced when the inquiry concerns the scope of an exceptionthat merely authorizes an officer with a lawful right of access to an item toseize it without a warrant.
Horton v. California, 110 S.Ct. at 2310.
Because that warrant authorized the agents to search for and seize documents, they
were authorized to be in any place in the store and look in any place where it was
reasonable to believe documents may be found, including closets, the officers presence
in the place where they could view the items seized did not violate any privacy concerns.
[Officers may properly seize articles of incriminating character that they come across while
performing a search in a given area pursuant to a valid search warrant. United States v.
Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) citing Horton v. California, 496 U.S. at 135.
Consequently, the only issue in controversy is whether the agents had reasonable grounds
to believe that the items seized under the plain view doctrine were contraband or evidence
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It is important to note that the Yellow House Store is in the business of selling6
second hand/used merchandise.
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of a crime, and as the following discussion will establish, those grounds existed and
justified the seizure of the items of merchandise.
As stated previously, probable cause demands not that an officer be "sure" or
"certain" but only that the facts available to a reasonably cautious man would warrant a
belief "that certain items may be contraband or stolen property or useful as evidence of a
crime." Texas v. Brown, 460 U.S. at 742, 103 S. Ct. at 1543; see alsoUnited States v.
Giannetta, 909 F.2d 571, 578-79 (1st Cir. 1990) (agent need not be convinced beyond a
reasonable doubt, but merely have probable cause to believe evidence was incriminatory.)
A review of the information in the possession of the officers searching the Yellow House
Store on December 2, 2005 and the types of evidence seized as contraband or evidence
or a crime will establish that their decision to seize the items of merchandise was
supported by probable cause.
The Evidence Custody Sheet for the search of the store on December 2, 2005,
(attached as Exhibit 4), reveals that the evidence seized as contraband or evidence of a
crime fell within several specific categories which included: cameras, electronic equipment,
clothing, tools, musical instruments, and a few miscellaneous new items including
perfume/cologne and earring sets. All of the items seized appeared to be new, unused
merchandise - the vast majority of the items still had the store tags attached or were in
original packaging - and were similar in nature to the types of new stolen items that the
officers knew had been recently purchased by the Yellow House. The merchandise was6
seized from one limited area, a storage closet located in the back room of the store where
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The search warrant authorized the officers to seize all items that had been sold7
by the undercover officer to Carrie Neighbors on 11/07, 11/18 and 11/29/2005.
See Exhibit 4, Item Nos. 21A-N, 23A-D, ,29, 30, 34 A-D, 40, 43, 44, 45, 49, 51,8
52, 53, 58, 62, 65, 68, 69, 72, 73, 80, 82, 83, 84, 85, 87, 89, 95, 96, 97, 98, 105, 106,107, 109, 111, and 113.
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it had been comingled with other items that the officers knew had been represented to
Carrie Neighbors as stolen property before she purchased them.
. Electronics: The officers seized numerous electronic items that were similar to
items sold to Carrie Neighbors by the undercover officer in November, 2005, on three
occasions. Carrie Neighbors had purchased numerous new items from the affiant even7
after he had told her that the items he was selling had been swiped or nabbed off the
back of a truck. Those items consisted of various types of electronic equipment including8
I-Pod Nanos (Ex. 1 at p. 16), Apple I-Pod Shuffles (Ex. 1 at 29, an Apple i-Pod U2 Special
Edition (Ex. 1 at p. 29), a Sonicare toothbrush (Ex. 1 at p. 16), i-Pod stations (Ex. 1 at p.
16,), a Kitchen Aid mixer (Ex. 1 at p. 23), DVD players (Ex. 1 at 16, 29), a digital telephone
(Ex. 1 at p. 29), and a DVD system. (Ex. 1 at 29).
In addition to the various types of electronics sold to Carrie Neighbors on the above-
referenced dates, the officers also knew that other types of stolen new electronics had
been sold to Carrie Neighbors. They knew that an e-Bay vendor identifying itself as
yellowhair-bargains contained a greeting from a person named Carrie Neighbors and that
a Super Target investigator had viewed the web site and found postings for the sales of
electronic merchandise that was similar to types of merchandise that were missing from
the Lawrence, Kansas, Super Target such as Kitchen Aid mixers, vacuum cleaners and
other electronic items. (Ex. 1 at p. 5) Nicolle Beach had admitted to stealing and selling
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See Exhibit 4, Item Nos. 20A-Z & AA, 46, 47, 48 54, 55, 56, 57, 59A-J, 74, 75,9
76, 86 A-E and 92.
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to Carrie Neighbors vacuum cleaners from the Lawrence, Kansas, Super Target, and to
stealing and selling a computer and a Kitchen Aid mixer to Carrie Neighbors (Ex. 1 at pp.
4, 6-7) Beach also told the officers that Carrie Neighbors paid more money for items in
unopened boxes, that Carrie Neighbors told her, in sum or substance, that Carrie
Neighbors had been required to return two of the stolen vacuums sold at Yellow House by
Beach because they had been sitting out when the police came to inquire about them and
that she had not returned the Kitchen Aid mixer because it had not been in the store when
the officer came to investigate. (Ex. 1 a p.7).
The officers also knew that a stolen computer had been recovered at the Yellow
House Store on November14, 2003 (Ex. 1 at p. 8), and that on October 27, 2005, a Sony
microsystem stereo similar to one stolen from a Super Target that day had been posted
for sale on the yellowhair-bargains eBay site. (Ex. 1 at pp. 9 -10). All of this information
clearly provided probable cause for the officers to believe that the new electronic items
seized on December 2, 2005, were either stolen or were evidence of the aforementioned
crimes.
Clothing
Many of the items in plain view were pieces of clothing that still had the store tags
on them. These items were seized because the officers knew that an employee of the9
store had been interviewed on November 16, 2005, and had said, in sum or substance that
the whole business looked like a theft ring (Ex. 1 at p. 21), that he believed that there was
lots of stolen property in the business (Ex. 1 at p. 21), and that two persons, Averitt and
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See Exhibit No. 4, Item Nos. 11, 36, 37, 38, 39, 63, 64, 65, 108, 112.10
Exhibit 4, Item Nos. 20H, 35, 66, 67, 70 71, 93 and 94.11
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Lately, were coming into the Yellow House all day selling brand new clothes, mostly pants.
(Ex. 1 at p. 21). Averitt and Lately were well known to the Lawrence Police Department as
prolific shop lifters. Numerous items of new clothing consisting of twenty (20) pairs of
jeans, numerous shirts, gloves and hats, still bearing the merchants store tags were
discovered in the Yellow House when the officers executed the warrant. Clearly, the
officers had probable cause to believe that the new clothes were contraband and evidence
of the crimes under investigation and seizure of those items was lawful.
Cameras:
The officers seized nine new cameras during the search of the Yellow House
Store, seven of which were Sony Cybershot brand cameras and two were Kodak Easy10
Share cameras. The sheer number of new Sony Cybershot cameras constituted a fact
sufficient to cause a reasonably cautious man to believe that those items may be
contraband or stolen property or useful as evidence of a crime." Texas v. Brown, 460 U.S.
at 742, 103 S. Ct. at 1543. Additionally, the officers knew that the undercover officer had
sold two Fuji cameras to Carrie Neighbors on November 18, 2005, after telling her that the
items he was selling her that day had been swiped from an overstock bin. (Ex. 1 at p. 23)
Clearly, the seizure of the new cameras was based on probable cause and was proper.
Tools
Eight new tool sets were seized during the search which included four (4) sets of11
DeWalt tools and two sets of Husky tools. The officers knew that the employee
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Exhibit 4, Item No. 77.12
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interviewed on November 16, 2005, had said that two guys were constantly bringing in
new tools like DeWalt brand tools. (Ex. 1 at p. 21). Carrie Neighbors confirmed that
information on November 29, 2005, during a discussion with the undercover officer about
his desire to purchase a Husky brand tool set that he saw in the store that day. Ms.
Neighbors said that the tool sets that were out had already been sold but that her guy
brought her tools every week or two. She went on to say that he is a truck driver who was
able to get DeWalt and Husky tools. C. Neighbors further stated that the guy is able to get
the tools, depending on what is available, off of his truck shipments and that He gets to
buy the overstock. (Ex. 1 at p. 30) Clearly, the information provided by the employee and
confirmed by Carrie Neighbors was sufficient to establish probable for the seizure of the
new tools as evidence of the crimes under investigation and contraband.
Musical Instruments
The officers seized a Dean electric guitar because the officers knew that in August,12
2005, the Lawrence Police Department had determined that stolen credit cards had been
used to purchase musical instruments including flutes, trumpets and clarinets, at two music
stores in Lawrence, Kansas. The person who picked up the instruments was identified by
employees of the stores as Stacy Barnes Catlett. (Ex. 1 at p. 9). The Yellow House
employee reported during his interview on November 16, 2005, that Stacey Barnes Catlett
had come in to the Yellow House Store a few weeks earlier selling lots of brand new
instruments such as flutes and clarinets. He stated that Carrie Neighbors had purchased
new instruments from Barnes Catlett until information about the thefts was published in the
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Exhibit 4, Item Nos. 20 E, F, I, 23, 23 E and 23 F (new perfume and cologne);13
20 U, (blood pressure cuff), 22, ((3) VHF tapes); 60 (OBDZ card reader), 79 ((3) PCIsound cards), 81 (Microsoft software), 88 (Microsoft software) and 91 ((4) DVDs)
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newspaper and then she stopped buying from Barnes Catlett. (Ex. 1 at p. 22) This
information provided sufficient probable cause to justify the seizure of the new Dean
electric guitar on December 2, 2005.
Miscellaneous items
The officer seized a few items that had not been previously identified as the types
of stolen items purchased by Carrie Neighbors. Because these items were new and13
were comingled in the back closet with other new items, including items purchased by
Carrie Neighbors from the undercover officer believing them to have been stolen, the
incriminatory nature of those miscellaneous items was immediately apparent. See United
States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999) (once agent came across false licenses
and credit cards, incriminatory nature of any other items in those names became
immediately apparent to the agent.) Consequently, seizure of these items was warranted.
Here, the search and seizures were reasonable because the officers seized only
items that were covered by the warrant or which they reasonably believed were contraband
or evidence based upon information they possessed when they entered the business to
execute the warrant. With few exceptions, all of the seized items that were not
enumerated in the search warrant were new, as evidenced either by in-tact sales tags or
by original packaging, and all were found in a closet in the back of the store where items
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The one used item that was seized was a bicycle. Police officers had
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recovered stolen bicycles from the Yellow House Store in the recent past. Knowingthat, the officers compared the serial number of a used bicycle found on the premiseswith information in the police records and determined that the item had been reportedstolen, clearly establishing the bicycle as an item of contraband. The vast majority ofitems in the Yellow House Store on December 2, 3005, were used, and except for theone stolen bicycle recovered that day, no other used merchandise was seized.
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purchased from the affiant by Carrie Neighbors, which she believed had been swiped,
had been co-mingled with the other new merchandise. 14
Based on the foregoing, the United States respectfully submits that all of the
evidence collected either at the Yellow House Store or at the residence was properly
seized, either because it was seized pursuant to the terms of three valid search warrants
or because it was contraband or evidence of the crimes under investigation and was in
plain view when discovered.
3. Severability
A search is not invalidated in its entirety merely because some seized itemswere not identified in the warrant. See United States v. Hargus, 128 F.3d1358, 1363 (10th Cir. 1997). Rather, invalidation of an entire search basedon a seizure of items not named in the warrant is an extraordinary remedythat should be used only when the violations of the warrants requirementsare so extreme that the search is essentially transformed into animpermissible general search. United State v. Chen, 979 F.2d 714, 717 (9thCir. 1992). Put another way, searching officers may be said to haveflagrantly disregarded the terms of a warrant when they engage inindiscriminate fishing for evidence. Id.
United States v. Robinson, 275 F.3d 371, 381-82 (9 Cir. 2001). In this case, the
th
searching officers did not engage in an indiscriminate fishing expedition. Rather, they
seized only items from among many pieces of merchandise that reasonably appeared to
be new and of the type that they knew from their earlier investigation were often purchased
by Carrie Neighbors from persons who had stolen them. The vast majority of items in the
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Yellow House on December 2, 2005, were not seized. The officers cannot be said to have
turned their search in to a general one by flagrantly disregarding the terms of the warrant
for the search of the Yellow House store. Consequently, the extraordinary remedy of total
suppression is not warranted.
Here, should the court determine that there was insufficient probable cause to seize
the items of merchandise, it should exercise its discretion and order the suppression of
only those items of merchandise that were not authorized to be seized in the warrant. See
United States v. Naugle, 997 F.2d at 822-23 (10th Cir.1993) (Doctrine of severability
applies if valid portions of the warrant are sufficiently particularized, distinguishable from
the invalid portions, and make up the greater part of the warrant). The entire warrant for
the search of the Yellow House Store on December 2, 2005 was valid so if any evidence
is suppressed, the United States respectfully submits that it should include only the items
of new merchandise recovered on December 2, 2005.
C. Warrants for Searches on July 7, 2005 were Valid
Finally, the defendants claim that the two federal search warrants in Case Nos. 06-
M-8075-01-JPO and 06-M-8075-02-JPO and the piggy back state search warrant (Exhibit
5, attached) that issued on July 7, 2006, were based on evidence that was the fruit of the
poisonous tree because it was obtained during allegedly illegal searches on December 2,
2005. As the foregoing discussion establishes, the searches and seizures of evidence at
the Yellow House Store and at the Andover residence in December, 2005, were legal and
appropriate, thus causing this argument to fail.
Assuming, for the sake of argument only, that the Court determines that the
evidence seized during the searches in December 2005, should be suppressed, such
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The applications for the warrants that issued on November 30, 2005 were15
attached to each of the affidavits for the federal search warrants, but the information in
those documents was obtained prior to and independently of the searches onDecember 5, 2005, so cannot be characterized as tainted. Further, none of theinformation in 9 - 12 of the July, 2006 affidavits was included in the applicationsubmitted to the Douglas County district court judge on July 7, 2006, but it wasdisclosed to him that the piggy back warrant was based upon evidence found in plainview of the officers when they went into the Andover residence that day to execute thefederal search warrant.
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finding does not require suppression of the evidence seized during the July, 2006
searches.
An affidavit containing erroneous or unconstitutionally obtained information
invalidates a warrant if that information was crucial to establishing probablecause. United States v. Karo, 468 U.S. 705, 179 104 S.Ct. 3296, 82 L.Ed.2d530 (1984). If however, the affidavit contained sufficient accurate oruntainted information, the warrant is nevertheless valid. Id.
United States v. Morgan, 106 Fed.Appx 694, 2005 WL 3475864 *3 (C.A.10(Kan)).
With respect to the affidavits submitted for the three warrants issued on July 7,
2006, each contained sufficient untainted information to establish probable cause that
evidence of a crime or contraband would be found at the Yellow House Store or at the
Andover residence. The evidence that the defendants contest was found in the
applications for the federal warrants at paragraphs 9 - 12 which referred to several items
of stolen property that were recovered during the December searches of the store and the
residence and the results of law enforcement review of certain documents recovered
during the December searches. However, even if all information obtained from the15
December searches, is excised from the July 6 affidavits, the remaining untainted
information overwhelming supports the probable cause finding for all three of the July
warrants. Id.
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All of the information contained in paragraphs 13 - 44 of the July 7, 2006, search
warrant described evidence pertaining to the execution of a wire fraud/ mail fraud scheme
in violation of 18 U.S.C. 2343 and 1341. That information was obtained from
investigative procedures unrelated to information or items seized in December, 2005 and
included trash pulls, witness interviews concerning the sale of stolen vacuum cleaners to
Carrie Neighbors, undercover sales to and recorded conversations with Ms. Neighbors.
The additional evidence collected independently of any evidence or information seized
during the December searches clearly established probable cause for the issuance of the
federal warrants in July, 2006. Consequently, the defendants claims that all of the
evidence collected during the executions of the July warrants must be suppressed because
it is fruit of the poisonous tree is not supported by the untainted facts available to the
magistrate judge on July 6, 2006, and their motion to suppress should be denied.
IV. Conclusion
For the reasons enumerated herein, the United States respectfully submits that
defendants motion to suppress the evidence seized on December 2, 2005 and that seized
on July 7, 2006, should be denied in its entirety.
Respectfully submitted,LANNY D. WELCHUnited States Attorney
s/Marietta ParkerMARIETTA PARKER KS Dist. Ct. # 77807
Assistant United States Attorney500 State Avenue, Suite 360Kansas City, Kansas 66101(913) 551-6730 (telephone)(913) 551-6541 (facsimile)E-mail: [email protected]
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s/Terra D. MoreheadTERRA D. MOREHEAD KS S.Ct # #12759
Assistant United States Attorney
500 State Avenue, Suite 360Kansas City, Kansas 66101(913) 551-6730 (telephone)(913) 551-6541 (facsimile)E-mail: [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of August, 2009, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system which will send a notice of
electronic filing to the following:John Duma303 E. PoplarOlathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
Cheryl A. PilateMorgan Pilate LLC142 N. CherryOlathe, KS 66061
Attorney for Defendant Guy Madison Neighbors
I further certify that on this date the foregoing document and the notice of electronic
filing were mailed by first-class mail to the following non-CM/ECF participants:
None
s/Marietta ParkerAssistant United States Attorney