07911992870 This Is What Happens When Federal Employees Are Not Monitoried

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA Plaintiff, V.

CASE NUMBER: 07-20124

CARRIE and GUY NEIGHBORS Defendant. DEFENDANT’S JOINT MOTION TO SUPPRESS EVIDENCE COMES NOW, Carrie and Guy Neighbors, by and through counsel, John M. Duma and Cheryl Pilate and moves this court pursuant to Rule 12(b)(3) of the Federal Rules for Criminal Procedure for an order suppressing certain evidence seized to be used in the trial in chief against the defendants. In support of said motion the defendants would state as follows: FACTUAL STATEMENT WARRANTS EXECUTED DECEMBER 2, 2005 On November 30, 2005 an officer of the Lawrence Police Department applied for and received a search warrant for among other things “The residence located at 1104 Andover Street, Lawrence Douglas County, Kansas 66049 . . .”. The affidavit that was submitted in support of the search warrant contained 43 pages of information, single-spaced, outlining why the officer requesting the 1

search warrant believed the warrant should issue. The affidavit contained only minimal references to the residence located at 1104 Andover Street, Lawrence Kansas (hereinafter referred to as Andover). The remainder of the affidavit outlined information that supported the request for a search warrant on the commercial establishment known as “Yellow House” located at 1904 Massachusetts Street, Lawrence Kansas. The affidavit contained information regarding the Andover location based on items collected from bags of trash in front of the Andover address. The first trash pull occurred on November 16, 2005. The officer that recovered the trash did not observe who placed the bags of trash at that location, further there was no mention in the affidavit as to whether there were other bags of trash in the same vicinity as the bags recovered by the officer. After recovering the two trash bags the officer took the same to a secure location to “thoroughly search” the same. The search of the trash bags revealed the following information that was set out in the affidavit on page 20 to wit: “*

eBay document denoting “Hello yellowhair-bargains” and “send payment” to a sellers address “Polart, 5700 Sarah Ave., FL 34233

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2 each printed PayPal shipping labels (USPS) to Imad Matar, 12021 Downey AVE., Downey CA 90242 and the return address as yellow house store, 1904 Massachusetts St., Lawrence, KS 66044 dated 2

11/08/2005 *

1 each printed PayPal shipping labels (UPS) to Crystal Morris 800 E Diamond Blvd. Ste 3-131, PO Box 115 Anchorage, AK 99515 and the return address as yellow house store, 1904 Massachusetts St., Lawrence, KS 66044 dated 11/08/2005

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Pay Pal document denoting “Create your own shipping label” showing shipper’s address as yellow house store, 1904 Massachusetts St., Lawrence, KS 66044 and a print date of 01/21/2002 to Eduard Scott.

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eBay document showing a Compaq Presario Desktop PC 2.93 GHZ that had been paid for and payment was sent to [email protected] on Sept. 23 2005. Seller information shows yellowhair-bargains and the winning buyer as jnicole42375. These documents appear consistent with the selling and shipping of posted eBay merchandise on the yellowhair-bargains web store indicating transactions are being conducted at the Neighbor’ residence.” Affidavit dated November 30, 2005 page 20.

The second trash pull occurred on November 30, 2005 wherein the investigating officers collected a single bag of trash from the curb in front of the Andover residence. Again the trash was transported to a secure location to be 3

“thoroughly searched”. The affidavit indicates that the following items were recovered to wit: •

“An envelope addressed to Guy and Carrie Neighbors showing an address of 1104 Andover, Lawrence, Kansas.

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An envelope addressed to Carrie Neighbors Yellow House 1904 Massachusetts, Lawrence, Kansas. The document was from Ann Sutherland of Lake Oswego, Oregon. The document further demonstrates that business documents addressed to the Yellow House business are being taken to the owner’s residence located at 1104 Andover.” (Affidavit dated November 30, 2005 page31).

The discovery provided to counsel for the defendants in this case indicate that another trash pull was conducted by the Lawrence Police Department on October 26, 2005. The report on that trash pull concluded: “The paper sack that was collected had nothing of evidentiary value inside it.”

This information was not

provided in the affidavit to the issuing magistrate of the search warrant. Further, there was one trash pull listed in the affidavit, which recovered trash from the “Yellow House” business. There were no documents or other information to connect the Andover property with the “Yellow House” property recovered from the trash pull at “Yellow House”. 4

The affidavit sets out the great lengths the Lawrence Police Department went to investigate the transactions occurring at the “Yellow House” store. In the onemonth period of time leading up to the issuance of the search warrant it appears that the investigators were conducting an almost continuous investigation of “Yellow House”. There is no information provided in the affidavit that indicates that there was ever observed any property being transported from the “Yellow House” store to the Andover address. The affidavit does not even present a conclusory opinion by the affiant that ordinarily persons involved in the purchasing of stolen property keep records of the suspect transactions at their home residence. The affidavit concludes by stating. “Furthermore, to complete a more thorough investigation into the fencing of stolen property and attempted possession of stolen property AFFIANT requests that search warrants be issued for the before mentioned locations.” When the officers executed the search warrant they recovered various items that were placed in evidence that the government intends to use in the presentation of evidence in its case in chief. Further, while executing the first search warrant of December 2, 2005 the officers observed what appeared to be marijuana plants and assorted property which led to the issuance of a second search warrant and resulting charges being filed in case 07-20073. Also, the executing officers of the December 2, 2005 search warrants confiscated many items of property that 5

exceeded the scope of their authority under the issuing warrants. WARRANTS EXECUTED JULY 7, 2006 The investigation into the “Yellow House” business continued after the execution of the search warrants in December of 2005. On July 6, 2006, a postal inspector applied for and received a search warrant for the Andover residence. The affidavit contained a great deal of information discovered as the result of the previous search warrants having been issued in December of 2005. Without the information from the December 2005 search, the affidavit for the July 2006 warrant would not have contained enough information for the issuing magistrate to have found probable cause to issue a search warrant for the Andover property. Additionally, when the officers executed the July 7, 2006 warrant they allegedly observed evidence that caused them to apply for and receive yet another search warrant. During the execution of the second July warrant the officers discovered what was purportedly a marijuana growing operation at the Andover property. ARGUMENT AND AUTHORITY a. Lack of probable cause to issue warrant 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). The Fourth Amendment protects individuals from unreasonable 6

searches and seizures U.S. Const. amend. IV. In determining whether a search warrant is supported by probable cause, the appellate court review is "the sufficiency of the affidavit upon which a warrant [was] issued by looking at the totality of the circumstances [to ensure] 'that the [issuing judge] had a substantial basis for concluding that probable cause existed.'" United States v. Tisdale, 248 F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). The appellate courts afford the issuing judge's finding of probable cause great deference unless the affidavit fails to provide that substantial basis. See United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998). “Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). In the case before this court the defendants concede that the affidavit for the first search executed on December2, 2005 would satisfy the probable cause requirements and nexus for the search of the “Yellow House” store. However, the defendants would argue that the probable cause requirement and nexus was not produced in the affidavit provided to the issuing magistrate on the warrant issued and executed the same date on the Andover property. The only information listed in the affidavit relating to the Andover property is the information pulled from two trash pulls conducted by investigating officers 7

with the Lawrence Police Department. During the two trash pulls the officers found several pieces of mail along with shipping receipts that contained the address of the “Yellow House” business or otherwise connected with the “Yellow House” business.

At no time was any information provided to the issuing

magistrate that any documents or other information located at the Andover location were in any way connected to a specific suspected transaction of stolen property. There was insufficient information provided to the judge issuing the first search warrant on the Andover property to provide the necessary probable cause for the issuance of said warrant. The defense anticipates the government will argue that even if the affidavit supporting the warrant was insufficient, the Leon exception will still prevent the suppression of the evidence in question. United States v. Leon, 468 U.S. 897 (1984). “In Leon, the Supreme Court held that evidence seized under a search warrant later determined to be invalid may be admissible if the officers executing the warrant acted in good faith and with objectively reasonable reliance on the search warrant. See United States v. Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990). There are four situations, however, in which the good faith exception is not applicable: (1) if the issuing magistrate was “‘misled by information in an affidavit 8

that the affiant knew was false or would have known was false except for his reckless disregard for the truth;’” (2) if “‘the issuing magistrate wholly abandoned his judicial role;’” (3) if the affidavit was “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,’” or in other words, where “‘the warrant application was supported by [nothing] more than a “bare bones” affidavit;’” and (4) if the warrant was facially deficient. United States v. Van Shutters, II, 163 F.3d 331, 337 (6th Cir.1998) (quoting Leon, 468 U.S. at 914-15, 104 S.Ct. at 3416-17). The defendants would argue that the lack of any recitation of probable cause that the Andover residence would contain fruits, instrumentalities or other evidence of criminal activity rendered the affidavit so lacking in indicia of probable cause that the judicial officer either wholly abandoned his judicial role or any person acting in their official capacity could not reasonably believe the search warrant was supported by probable cause. For this reason alone the evidence found during the search on the first warrant issued on the Andover property and executed December 2, 2005 should be suppressed. b. Overbroad execution of warrant "The Fourth Amendment requires that a search warrant describe the things to 9

be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999). We look at the description of the items to be seized practically and the warrant's language in a common sense fashion. See Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). A warrant is sufficiently particular "when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982) Under the law of this circuit, "even evidence which is properly seized pursuant to a warrant must be suppressed if the officers executing the warrant exhibit `flagrant disregard" for its terms." United States v. Medlin, 842 F.2d 1194, at 1199 (10th Cir. 1988) (emphasis added). The basis for blanket suppression when a search warrant is executed with flagrant disregard for its terms "is found in our traditional repugnance to `general searches' which were conducted in the colonies pursuant to writs of assistance." Id. To protect against invasive and arbitrary general searches, the Fourth Amendment mandates that search warrants "particularly describ[e] the place to be searched and the persons or things to be seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United States, 275 U.S. 192, 196 (1927), [t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is 10

to be taken, nothing is left to the discretion of the officer executing the warrant. Id. Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant." 842 F.2d at 1199 (emphasis added). United States v. Foster, 100 F.3D 846 (10th Cir. 11/15/1996). In the case before the court the defendants would argue that both the evidence seized as a result of the second warrant issued on the Andover property and executed on December 2, 2005 and the search warrant issued on the “Yellow House” property also executed on December 2, 2005 should be suppressed as the result of the officers having grossly exceeded the scope of the property which was seized.

c. Fruit of the Poisonous Tree The ordinary remedy in a criminal case for violation of the Fourth Amendment is suppression of any evidence obtained during the illegal police conduct. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant may also suppress any other evidence deemed to be "fruit of the poisonous tree," (i.e., evidence discovered as a direct result of the unlawful activity), by showing 11

the requisite factual nexus between the illegality and the challenged evidence. Wong Sun v. United States, 371 U.S. 471, 485 (1963); United States v. NavaRamirez, 210 F.3d 1128, 1131 (10th Cir. 2000). In the instant case the second search warrant executed on December 2, 2005 for the Andover property was issued based on evidence discovered during the execution of the first search warrant on the same date. Accordingly, the evidence gained from the second search warrant on the Andover property executed December 2, 2005 should be suppressed. Likewise, the first search warrant executed on July 7, 2006 on the Andover property was issued based on information discovered during the execution of the first and second search warrants issued on December 2, 2005. Finally, the second search warrant issued on July 7, 2006 was issued based only on information gained during the execution of the first search warrant of July 7, 2006. Accordingly, all evidence seized on the first and second search warrants executed on July 7, 2006 on the Andover property should be suppressed. Therefore, all evidence seized as the result of search warrants executed on December 2, 2005 and July 7, 2006 should be suppressed.

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Respectfully submitted. /s/ John M. Duma JOHN M. DUMA KS No. 10760 303 E. Poplar Olathe, Kansas 66061 (913) 782-7072 Fax 782-1383 [email protected] ATTORNEY FOR CARRIE NEIGHBORS /s/ Cheryl A. Pilate CHERYL A. PILATE, KS No. 14601 MORGAN PILATE LLC 142 N. Cherry Olathe, KS 66061 Telephone: 913-829-6336 ATTORNEY FOR GUY NEIGHBORS CERTIFICATE OF SERVICE I hereby certify that on July 27, 2009, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to Marietta Parker, Assistant U.S. Attorney, 360 U.S. Courthouse, 500 State Avenue, Kansas City, Kansas 66101 and all other counsel of record. I further certify that I mailed the foregoing document and notice of electronic filing by first-class mail to the following non-CM/ECF participants: Carrie Neighbors. _/s/ John M. Duma_____ John M. Duma No.10760 /s/ Cheryl A. Pilate Cheryl A. Pilate, KS No. 14601

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