which is similar--but not synonymous--to describe the requisite relationship an illegal alien must establish to avail himself of the protection of the Fourth Amendment. Compare Verdugo-Urquidez, 494 U.S. at 265 (referring to a "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered a part of that community.") (emphasis added), with id. at 271 (discussing "substantial connections with this country" and "significant voluntary connection with the United States") (emphasis added). Perhaps even more significantly, the plurality opinion fails to articulate the nature and extent of the "connection" entitling this category of persons to the protection of the Fourth Amendment.
It is against this backdrop of uncertainty that the Government urges the Court to distill a rule from Verdugo-Urquidez and Barona which is tantamount to a presumption that this class of individuals is not entitled to the protections guaranteed by the Fourth Amendment. The Court declines to do so. Given the lack of any clear appellate guidance which alters the applicable standard or otherwise sets forth a definitive analysis in making these vital determinations, the Court is disinclined to impose a greater burden on this category of criminal defendants as a prerequisite to seeking the shelter of the Fourth Amendment. To adopt the Government's position that illegal aliens presumptively enjoy no Fourth Amendment protection would require federal courts, without any consistent or clear standard, "to jump into a quagmire of weighing relative 'societal obligations' in determining the applicability of the Fourth Amendment to illegal aliens within the United States." R.K. Miller, The Limits of U.S. International Law Enforcement After Verdugo-Urquidez: Resurrecting Rochin, 58 U. Pitt. L. Rev. 867 (1997); c.f., Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1990) ("when governing decisions are unworkable or badly reasoned 'this Court has never felt constrained to follow precedent.'") (quoting in part Smith v. Allwright, 321 U.S. 649, 665, 88 L. Ed. 987, 64 S. Ct. 757 (1944)).
Gauging the precise impact of the above concerns is difficult, at best. Nevertheless, it is readily apparent that existing Fourth Amendment jurisprudence would suffer by allowing law enforcement officers and reviewing courts to exercise unfettered discretion in deciding to whom and under what circumstances the Fourth Amendment should be applied. Indeed, the lack of clear and objective standards is certain to add to the confusion and is likely to deprive law enforcement officers of the facility to discharge their duties within the confines of the Constitution. Such a result could have a pernicious impact on the administration of justice.
Not only would the resulting confusion prove arduous for law enforcement officers and the courts, it is antithetical to the purpose and intent of the Fourth Amendment. As noted, the Fourth Amendment's central function is to protect against arbitrary government action. See Verdugo-Urquidez, 494 U.S. at 266. In furtherance of this goal, the exclusionary rule serves as a prophylactic measure intended, in part, to remove the incentive on the part of law enforcement officers to disregard an individual's rights under the Fourth Amendment. See Nix, 467 U.S. 431 at 446, 104 S. Ct. 2501, 81 L. Ed. 2d 377; see also J. Ricchezza, Are Undocumented Aliens "People" Persons Within the Context of the Fourth Amendment?, 5 Geo. Immigr. L.J. 475, 483-84 (1991). Without clear and consistent judicial guidance, however, the inviolable protections traditionally afforded to persons accused of criminal conduct, including resident aliens and those who "appear" to be aliens, will undoubtedly be undermined.
Given the significance of the issues, the paucity of authority and the expansive implications, the Court declines to fashion such a dramatic modification to the Fourth Amendment analysis which has not been clearly sanctioned by the Supreme Court. The Court therefore finds that the defendant has standing to assert a violation of the Fourth Amendment, and hence, now turns to the merits of his motion to suppress.
B. MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE MITCHELL WAY RESIDENCE
1. Applicable Law
Defendant moves to suppress evidence seized from the Mitchell Way residence pursuant to the search warrant, statements made during the search, and all post-arrest statements. "The validity of the search warrant depends on the sufficiency of what is found within the four corners of the underlying affidavit." United States v. Taylor, 716 F.2d 701, 705 (9th Cir. 1983) (citations omitted). The affidavit is sufficient if it establishes probable cause. See id.
"A magistrate judge may issue a search warrant if, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular location." See United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994), cert. denied, 513 U.S. 1119, 130 L. Ed. 2d 800, 115 S. Ct. 920 (1995); accord United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir. 1991). Direct evidence that contraband or evidence will be found at the place to be searched is not necessary to establish probable cause. See United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (citations omitted). The magistrate is entitled to "draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of the offense." Id. With respect to drug dealers, the Ninth Circuit has recognized that "evidence is likely to be found where the dealers live." United States v. Gil, 58 F.3d 1414, 1418-19 (9th Cir.), cert. denied, 516 U.S. 969, 116 S. Ct. 430, 133 L. Ed. 2d 345 (1995) (citation and quotations omitted).
Notwithstanding the above, the facts set forth in a search warrant affidavit must establish a "reasonable nexus" between the allegedly criminal activity and the place to be searched. See United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993); United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) (finding search of the defendant's residence improper where "the affidavit [did] not link this location to the defendant and . . . [did] not offer an explanation of why the police believed they may find incriminating evidence there"). "Probable cause to believe that a suspect has committed a crime is not by itself adequate to secure a search warrant for the suspect's home." Ramos, 923 F.2d at 1351.
Defendant contends that, assuming arguendo that he was involved in a drug transaction at the Birrieria Jalisco Restaurant, none of the information presented in Agent Rodriguez' search warrant affidavit is sufficient to establish probable cause that contraband or evidence would be found at 1091 Mitchell Way. (Def.'s Mot. at 5-8.) Alternatively, defendant contends that even if the affiant presented facts sufficient to demonstrate a nexus between the defendant and 1091 Mitchell Way, such information was "stale" when the warrant was issued on May 2, 1996 and executed on May 9, 1996.
Although the Government does not dispute that there is no evidence of any criminal activity having occurred at 1091 Mitchell Way, the Government asserts that the search was proper because "there was probable cause to believe that Guitterez lived there." (Gov't Mem. at 12.) In support of this proposition, the Government cites the fact that (1) defendant informed CHP Officer Verduzco that he lived in El Sobrante and then later drove there with Ruvalcaba and their child and (2) defendant used a garage door opener to open the garage door which "clearly suggested that was his home." (Id.) The Government further contends that Judge Sing properly inferred, based on Agent Rodriguez's expert opinion, that since defendant was involved in drug trafficking, evidence and/or contraband would be found at 1091 Mitchell Way, his alleged residence. (Id.)
3. Nexus to 1091 Mitchell Way
The Ninth Circuit has held that in determining whether an affidavit establishes probable cause, a magistrate may consider an expert's opinion. See United States v. Seybold, 726 F.2d 502, 504-505 (9th Cir. 1984). Thus, Judge Sing could properly rely upon Agent Rodriguez's opinion that narcotics dealers often store narcotics and narcotics-related equipment and paraphernalia at their residences. See id. However, the affidavit in this case contains insufficient information to establish a "fair probability" that the defendant actually lived at the residence at 1091 Mitchell Way.
As a threshold matter, the fact that the defendant informed CHP Officers Verduzco and Lebell during the traffic stop that he lived "in El Sobrante" and, one hour and one stopover
later, drove to a house located in El Sobrante does not establish that the defendant actually resided at that particular address. Indeed, based on the representations made to the CHP officers, the defendant might have lived in any one of the multitude of residences located in El Sobrante.
Equally unpersuasive is the Government's assertion that "Guitterez's use of a garage door opener at Mitchell Way clearly suggested that was his home." (Gov't Mem. at 12.)
The Government ignores that the record is unclear whether defendant actually operated a garage door opener at 1091 Mitchell Way. As discussed above, the affidavit submitted to Judge Sing by Agent Rodriguez is internally inconsistent concerning who operated the garage opener. (Compare Aff. at 13 ("Burns observed GUITTEREZ operate a remote control garage opener"), with id. at 23 ("Javier GUITTEREZ and Delia RUVALCABA were observed opening the garage door with a remote garage door opener") (emphasis added).)
Aside from the above inconsistencies, even if defendant did activate a remote control garage door opener, the Government has cited no legal authority for the proposition that the single operation of a garage door opener is sufficient to establish probable cause that the operator resides there. Although it is axiomatic that an owner of property or one who resides there will exercise possession and control over instruments necessary to facilitate entry, (e.g., keys, garage door openers, etc.), the Court is not convinced that the converse is always true. Clearly, not every person who has access to a residence resides there or possesses a "proprietary interest" therein--as in the case of relatives, neighbors, housekeepers, housesitters, or other service persons. Nor is the Court convinced that the law enforcement officers' alleged observation of defendant's use of a remote control device on a single occasion sufficiently establishes a probability that defendant resided at 1091 Mitchell Way.
The Court also notes that the affidavit is devoid of information regarding any further surveillance of 1091 Mitchell Way. There were, ostensibly, no additional observations, and thus, there is no additional evidence which might establish that the defendant lived at 1091 Mitchell Way. To the contrary, the information presented is directly at odds with this conclusion. First, the information obtained by the affiant and set forth in the search warrant affidavit disclosed to the magistrate that the defendant resided at 1128 D Street in Hayward. Notably, there is no information in the affidavit regarding any investigation of the Hayward address. Second, the utilities for 1091 Mitchell Way were registered in the names of persons other than the defendant or his wife.
The affidavit also states that the brown Mercury Cougar driven by the defendant and later parked in the Mitchell Way garage was not his own. Rather, this vehicle was registered to Miguel Angel Martinez, 1401 Emeric Avenue, San Pablo, California. (Aff. at 17.) Nor did Guitterez own the 1988 Hyundai which, according to the affiant, was parked in the Mitchell Way driveway when the defendant arrived. (Id. at 13.) This vehicle was registered to Gerardo Lizade with the address of 2208 Emeric Avenue # C in the city of San Pablo. (Id. at 16.)
Given the absence of evidence establishing a probability that the defendant lived at 1091 Mitchell Way--or that he possessed a "significant proprietary interest" in the property--the Court finds that the affidavit relied upon by Judge Sing failed to establish a reasonable nexus between the defendant's alleged illegal activity and the place to be searched.
Defendant next argues that even if the affidavit was sufficient to establish the requisite nexus between the defendant and 1091 Mitchell Way, such information was "stale" when the search warrant was issued 15 days later on May 2, 1996, and 22 days later when it was executed on May 9, 1996. The timeliness of a warrant depends on whether it is reasonable to believe that items to be seized are still on the property. See United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034, 83 L. Ed. 2d 397, 105 S. Ct. 505 (1984). The mere lapse of time is not controlling. See Pitts, 6 F.3d at 1369.
The Government does not dispute Agent Rodriguez's failure to present information to Judge Sing to support his belief that "pay money" from a narcotics transaction which transpired over two weeks earlier would still be in the place to be searched. (Aff. at 26-27.) Instead, the Government contends that the information contained in the search warrant affidavit was not stale because the agents were continuing their investigation after the controlled purchase at the Birrieria Jalisco Restaurant on April 17, 1996. However, none of the information gleaned as a result of that investigation supported the conclusion that defendant resided at 1091 Mitchell Way nor reinforced the supposition that evidence would be discovered at that location. See United States v. Vaandering, 50 F.3d 696, 700 (9th Cir. 1995) (noting that stale information may provide a basis for probable cause if it is coupled with recent corroborating information).
The Government also asserts that the defendant was involved in an ongoing drug business. Although "staleness arguments lose much of their force" where the affidavit indicates "a widespread, firmly entrenched, and ongoing narcotics operation", United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927, 102 L. Ed. 2d 331, 109 S. Ct. 312 (1988), the evidence cited by the Government for this proposition pertains to Torres, not to the defendant. The Court therefore finds that the delay in obtaining and executing the search warrant negated any showing of probable cause to search 1091 Mitchell Way because the information was stale.
5. Good Faith Exception
The Government contends that even if Judge Sing lacked probable cause to issue the warrant, the search should be upheld under the "good faith" exception to the warrant requirement, pursuant to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). In Leon, the Supreme Court held that evidence obtained under a facially valid warrant, which is later found invalid, is admissible if the executing officers acted in good faith and had an "objectively reasonable belief in the existence of probable cause." See id. at 926.
However, "an officer does not manifest objective good faith in relying on a warrant based on an affidavit that is so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable." See United States v. Fowlie, 24 F.3d 1059, 1067 (9th Cir. 1994) (citing Leon, 468 U.S. at 923).
An officer's reliance will be deemed reasonable if the affidavit supporting the warrant could "create disagreement among thoughtful and competent judges as to the existence of probable cause." Leon, 468 U.S. at 926. "The government bears the burden of proving that reliance upon the warrant was objectively reasonable." United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995) (citation omitted).
The Ninth Circuit has consistently held that Leon's good faith exception is inapplicable where the search warrant affidavit fails to demonstrate a nexus between the defendant and the place to be searched. For example, in Hove, the court observed that:
The affidavit does not link [the location to be searched] to the defendant and it does not offer an explanation as to why the police believed they may find incriminating evidence there; the affidavit simply lists the DeAnza address as a location to be searched. It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched. [citation] No such facts were stated in this affidavit. Thus, any official belief in the existence of probable cause must be considered unreasonable.
848 F.2d at 140 (emphasis added). The court concluded that "where the officers have not presented a colorable showing [of probable cause], and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply." Id.
Similarly, in United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989), the search warrant affidavit noted that a financial advisor's business card had been found on the defendant's person and from this the affiant concluded that the items likely to be found at the place to be searched included "jewelry, bonds and notes obtained through [a] fraud scheme." Id. at 1511. The court reviewed the affidavit and found that "if there was a nexus between the presence of an investment advisor business card and the existence of bonds and notes, that nexus was so tenuous and speculative that it could not have operated as a substantial basis for believing that bonds would be found." Id. In addition, the court held that "the evidence purported to justify the search was so tenuous that no reasonable police officer could have believed that portion of the warrant was supported by probable cause. Therefore, the 'good faith' exception to the valid warrant requirement . . . cannot be applied to overcome the warrant's deficiency as to the bonds." Id. at 1511 n.4.
As in Hove and Holzman, the evidence proffered to justify the search of 1091 Mitchell Way is both tenuous and speculative. The only information ostensibly linking the defendant to 1091 Mitchell Way was his statement to CHP officers that he resided in El Sobrante and the agent's controverted observation that the defendant appeared to have opened the garage door. No reasonable law enforcement officer could manifest an objective belief that this information, standing alone, was sufficient to establish probable cause to search 1091 Mitchell Way, particularly given the fact that the only objectively verifiable evidence in the affidavit regarding defendant's address indicated that he resided in the city of Hayward. And while an affiant may properly opine, based on his knowledge and experience, that narcotics suppliers secrete evidence of illegal activity at their residences, to conclude on these meager facts that defendant lived at 1091 Mitchell Way is entirely speculative. See Leon, 468 U.S. at 923; Hove, 848 F.2d at 139.
Further, the Court finds that the good faith exception is inapplicable, as Agent Rodriguez was both the affiant and the law enforcement officer leading the execution of the search. See United States v. Baxter, 889 F.2d 731, 734 (6th Cir. 1989) (declining to apply Leon where the officer executing the warrant also provided the deficient information in the search warrant affidavit). Given the serious deficiencies in the affidavit, it is apparent that a reasonably well-trained officer would have known that the search warrant was deficient, notwithstanding Judge Sing's authorization. The Government has failed in its burden of proving that reliance upon the warrant was in good faith and objectively reasonable.
Based on the above, the Court finds that the exclusionary rule requires that all evidence seized from 1091 Mitchell Way be suppressed from introduction against defendant Guitterez. Since all statements and admissions purportedly made by defendant Guitterez on May 9, 1996, during and/or after the search of 1091 Mitchell Way are tainted by this illegal search, they must be suppressed as well.
Defendant's motion to suppress evidence seized at 1091 Mitchell Way on May 9, 1996 and statements and admissions which he made on and after that date is GRANTED.
C. MOTION TO SUPPRESS OBSERVATIONS MADE AND STATEMENTS OBTAINED DURING THE WARRANTLESS TRAFFIC STOP ON APRIL 17, 1996
Defendant next moves to suppress statements obtained and observations made by the CHP officers during the traffic stop of the Mercury Cougar on April 17, 1996, on the ground that the officers lacked probable cause to effect a lawful traffic stop. The Government responds that the stop was proper because the officers had reasonable suspicion to stop the vehicle based on a traffic violation, to wit, Ruvalcaba's failure to wear her seatbelt. (Gov't Mem. at 23-26.)
It is well settled that law enforcement officers may conduct a traffic stop where they have "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations" relating to the operation of motor vehicles. See Delaware v. Prouse, 440 U.S. 648, 655-56, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979); accord United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir. 1992) (noting that a traffic violation "in itself provided founded suspicion for a brief investigatory stop."), cert. denied, 507 U.S. 932, 122 L. Ed. 2d 702, 113 S. Ct. 1315 (1993). When conducting a lawful traffic stop, the officer may, as a reasonable safety measure, require the passenger or passengers to leave the car. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977); see also United States v. Cannon, 29 F.3d 472, 476-477 (9th Cir. 1994) ("Once [the defendant] was validly stopped, [the officer] properly asked [the defendant] to exit his car."). The officer may also conduct a limited pat search to ensure his or her safety. See Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
The Government argues that the traffic stop was proper because Ruvalcaba, the only adult female passenger in the Cougar, was not wearing her seatbelt. See Cal. Veh. Code § 27315 (requiring driver and passengers to wear seatbelts). The Court agrees. The record indicates that Agent Van Dorn, who had surveilled the activities at the Birrieria Jalisco Restaurant, informed Officer Verduzco, one of the officers who effected the traffic stop, that surveillance personnel had advised that a passenger riding in the vehicle was not wearing a seatbelt.
(See Narrative/Supplemental Report.) After stopping the vehicle, Officer Verduzco personally observed the female adult passenger in the right rear seat not wearing a seatbelt. (Id.)
Defendant contends that there is a factual dispute concerning this issue and that an evidentiary hearing is necessary to resolve the matter. An evidentiary hearing in connection with a motion to suppress is appropriate "if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue." See United States v. Wilson, 7 F.3d 828, 834 (9th Cir. 1993), cert. denied, 511 U.S. 1134, 128 L. Ed. 2d 877, 114 S. Ct. 2151 (1994) (citation and quotations omitted).
In support of his request for an evidentiary hearing, defendant points to his third declaration in which he states that "at the time of the stop I was wearing my seat belt and just prior to the stop my passenger was wearing her seat belt . . . ." (Third Guitterez Decl. P 3.)
However, defendant's declaration is insufficient to establish a factual dispute requiring an evidentiary hearing. As an initial matter, the Court notes that defendant provides no factual foundation for his conclusion that Ruvalcaba was wearing her seatbelt "just prior to the stop". It is uncontroverted that Ruvalcaba was seated in the right rear seat. Yet, defendant, who was driving the vehicle, fails to provide any facts demonstrating his ability to observe--or that he, in fact, observed--the seatbelt status of a passenger located behind him.
Aside from the lack of foundation to support defendant's conclusions, the information set forth in defendant's declaration is insufficient to justify an evidentiary hearing. As discussed above, Officer Verduzco was advised that one of the passengers in the vehicle driven by the defendant was not wearing her seatbelt. Defendant provides no controverting factual information. His assertion that Ruvalcaba was wearing her seatbelt "just before the traffic stop", (Third Guitterez Decl. P 3 (emphasis added)), is simply too vague to create a material factual dispute requiring an evidentiary hearing. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.) (holding that an evidentiary hearing is not necessary where the defendant's allegations are "vague and conclusory."), cert. denied, 493 U.S. 869, 107 L. Ed. 2d 149, 110 S. Ct. 195 (1989).
Defendant next argues that even if the stop were proper, Officer Verduzco had no right to conduct a pat search for identification. However, defendant ignores that Officer Verduzco conducted the pat search for safety reasons, not for identification.
In any event, since the defendant was unable to produce a driver's license or vehicle registration, it was permissible for the officers effecting the stop to request the defendant to exit the vehicle and to conduct a pat search. See United States v. Thompson, 597 F.2d 187, 190 (9th Cir. 1979) (upholding a protective pat search of a driver who was pulled over for traffic infractions and who was unable to produce a driver's license).
The Court concludes that the traffic stop was proper and that statements obtained and observations made as a result of the stop need not be suppressed.
Therefore, defendant's motion to suppress observations made and statements obtained during the warrantless traffic stop on April 17, 1996 is DENIED.
For the reasons stated above,
IT IS HEREBY ORDERED THAT the Court's Order of October 16, 1997 is VACATED. Defendant's Motion to Suppress is GRANTED, in part, and DENIED, in part, as set forth above. The parties shall appear before the Court on February 24, 1998 at 9:30 a.m. for status.
IT IS SO ORDERED.
DATED: January 23, 1998
SAUNDRA BROWN ARMSTRONG
United States District Judge