The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING MOTION TO SUPPRESS [Motion filed on January 16, 2009]
Defendant Ross Hack ("Hack") is charged in a one-count indictment with knowingly and willfully making a false statement on a passport application with the intent to induce its issuance in violation of 18 U.S.C. § 1542. Hack moves to suppress the passport applications that form the basis of this indictment. Hack argues that his replacement passport was illegally seized on February 7, 2008, and that federal officers only discovered the 1998 passport application documents as a result of that illegal seizure. Accordingly, Hack argues, the 1998 passport application documents are the tainted fruit of an illegal seizure, and must be suppressed. After reviewing the arguments and evidence submitted by the parties and holding an evidentiary hearing, the Court denies Hack's Motion.
A. Indictment and Allegations in This Case
On July 30, 1998, police investigating Hack's involvement in a double-homicide executed a warrant on Hack's Las Vegas, Nevada home; in connection with that search, police seized Hack's passport. On or about August 5, 1998, Hack went in person to the U.S. Passport Office in Los Angeles, California and executed a "Will Call" application for a passport (also known as a DSP-11 form). The Will Call process allows an applicant who reports in person to the U.S. Passport Office to obtain a passport on the same day that he submits his application. Hack also submitted a DSP-64, Statement Regarding Lost or Stolen Passport, dated August 5, 1998. In the DSP-64, Hack stated that he did not know how his passport was lost or stolen, but that he had last seen his passport about one week prior and discovered the loss on July 30, 1998. Hack was issued a Will Call passport, and traveled to Europe soon thereafter.
On March 12, 2008, the United States filed a criminal complaint against Hack, charging him with one count of making a false statement in an application for a passport, 18 U.S.C. § 1542. Complaint, Docket Entry No. 1 (March 12, 2008). The grand jury indicted Hack on March 21, 2008. Indictment, Docket Entry No. 11 (March 21, 2008).
B. Facts Underlying This Motion
Hack's argument for suppression fundamentally depends on the sequence of events in the federal investigation of the charges at issue here. There are two critical factual issues: (1) whether Hack's passport seized during the February 7, 2008 parole search for Melissa Hack and (2) whether the government discovered the 1998 passport application documents prior to the parole search. The Court discusses the evidence on each of these issues below.*fn1
1. February 7, 2008 Parole Search of Melissa Hack
On or about February 7, 2008, Melissa Hack, Defendant's sister, was detained by the Las Vegas Metropolitan Police Department officer and transported to the Investigative Services Division for an interview. Kelly Decl. ¶ 4. Melissa Hack was on parole. Deuel Decl. ¶ 4. Among the conditions of her parole were prohibitions on drinking alcohol, entering any bar or lounge for any purpose except employment, contact or association with gang members, and possession of gang paraphernalia. Opp., Ex. B; Merrick Decl. ¶ 4. Law enforcement officers interrogated her regarding a bar fight that allegedly occurred on January 26, 2008 at a white supremacist concert dubbed "Unity Fest." Law enforcement believed that concert was coordinated by Ross and Melissa Hack. Kelly Decl. ¶ 6. After Melissa Hack's interrogation, officers conducted a parole search of the Las Vegas residence. Merrick Decl. ¶ 4.*fn2
Hack testified that, when officers arrived at the Hack residence on February 7, 2008, Hack answered the door. Although the officers did not identify themselves, Hack saw his sister in handcuffs and understood that they were there to conduct a parole search because his sister had violated her parole. Two officers accompanied Hack upstairs to his bedroom to retrieve his shoes and a shirt, and spoke to him outside the house during the search. Hack testified that those officers stood at the edge of the room, but did not enter it. See also Merrick Decl. ¶ 7; Sanford Decl. ¶¶ 5, 7.
There is some dispute as to how the search proceeded. According to Jane Hack, Defendant's mother, search team members entered and exited Ross Hack's bedroom "multiple times." J. Hack Decl. ¶ 6. According to the Defendant, who was not inside the residence while the search was being conducted, his replacement passport was in his bedroom prior to the search and was not there afterward. R. Hack Decl. ¶ 4. The Defendant did not testify to the location of the passport in his declaration, except to say that it was in his bedroom. Id. In the sworn statement he gave on March 12, 2008, Hack stated that he kept his passport either on his desk or in the drawer of his night stand next to his bed, where he kept "all of [his] important identification as well as [his] wallet, car keys, and telephone." Hack Statement at 1. The record contains different indications as to when Hack discovered that his passport was missing. In his declaration, Hack testified that he discovered that his passport was missing on February 7, 2008, "[a]fter the search was completed and the officer/agents had left." Hack Decl. ¶ 4. According to his March 12 statement, Hack indicated that he first discovered his passport was missing on that day. Hack Statement at 1. In his live testimony, Hack stated that he had formed the belief that the police took his passport prior to March 12, 2008.
The officers present at the search deny that they searched Defendant's room for his passport. David Deuel, Melissa Hack's parole officer, did not observe anyone search any room besides Melissa Hack's room and the adjacent bathroom. Deuel Decl. ¶ 5. LVMPD Detective James Fink and Parole and Probation Sergeant Doug Manookian did not physically enter Hack's room and did not observe anyone else enter his room. Fink Decl. ¶ 8; Manookian Decl. ¶ 4. LVMPD Detective Fred Merrick escorted Hack to his room to obtain his sandals and ensure he did not retrieve a weapon before accompanying him outside while other officers performed the search. Merrick Decl. ¶ 7; see Sanford Decl. ¶¶ 5, 7. According to Merrick, he neither searched Defendant's room nor observed a passport in Defendant's room. Merrick Decl. ¶ 7; see Sanford Decl. ¶ 5, 7. FBI Agent Kelly and DSS Agent Young asserted in ...