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United States of America v. John Underwood

June 16, 2011


The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

I. Introduction


The Court and parties are familiar with the broader facts of this criminal case, involving a conspiracy to distribute MDMA (ecstasy) and methamphetamine. Only facts relevant to the present Motion are recounted here. John Michael Underwood ("Underwood"), one of the alleged conspirators, has filed a Motion to Suppress evidence seized from his house on Mansa Drive on July 22, 2010. The evidence -- 33 kilograms of cocaine, $417,000 in cash, 104 ecstasy pills, packaging material, and a pay/owe sheet -- was seized pursuant to a state search warrant issued on July 22, 2010.

A. Facts

(1) Federal Warrants & Underwood's Arrest

On July 15, 2010, the Government obtained federal arrest and search warrants ("the federal warrants") for the arrest of Underwood and the search of what was believed to be his residence on Cantrece Lane ("the Cantrece Residence"). Underwood does not challenge the federal warrants.

The federal warrants were based on the affidavit of DEA Agent Johnson, who stated that he believed Underwood worked as a courier delivering cocaine and ecstasy. Agent Johnson disclosed that on April 14, 2010, DEA agents observed Barrera, a known conspirator,*fn1 meet with Underwood in a parking lot. Underwood gave Barrera two heavy crates. The crates were identified by Agent Johnson as similar to crates containing ecstasy that were seized on June 15, 2010 as part of the investigation. Agent Johnson's affidavit also disclosed incriminating wiretapped communications between Underwood and known conspirators.

Additionally, the vehicle Underwood used to deliver crates on April 14, 2010 was traced to the Cantrece Residence. On April 27, 2010, officers had conducted surveillance of the residence and observed two vehicles registered to Underwood parked in the driveway, including the vehicle used to transport the crates.

On July 22, 2010, a week after the federal warrants were issued, officers served the federal warrants at the Cantrece Residence, only to find that Underwood's mother, not Underwood, resided at the location. After a search, no evidence of drug trafficking was found. Underwood's mother gave the officers a different address for Underwood -- at a residence located on Mansa Drive (the "Mansa Residence").

Subsequently, officers went to the Mansa Residence to execute the federal arrest warrant. Officers knocked on the door, Underwood came outside, and he was arrested. Officers conducted a protective sweep of the residence. During the sweep, officers observed a personal-use amount of marijuana in a clear zip-lock bag in the living room.

After Underwood's arrest, Agent Johnson confirmed his belief that the Mansa Residence was Underwood's actual residence. Detective Kaiser, a local police officer, was directed by his superior to obtain a state search warrant for the Mansa Residence.

(2) State Affidavit & Search Warrant

The state search warrant, the warrant challenged in Underwood's Motion, was issued on July 22, 2010, a week after the federal warrants were issued. The state search warrant was supported by the affidavit of Detective Kaiser ("the state affidavit").

After describing Detective Kaiser's qualifications and his experience in drug investigations, the affidavit stated the following:


On 7-15-10, I, Detective Kaiser, learned the following from US Drug enforcement Agent Peter Johnson of the LA Office, Group 4: On July 15, 2010, United States Magistrate Judge Victor Kenton signed a federal arrest warrant for John Michael Underwood ("Underwood") and a federal search warrant for Underwood's suspected residence at 12338 Cantrece Lane, Cerritos, CA. Underwood is a courier for a multi-hundred thousand pill MDMA drug trafficking organization ("Luong DTO"). On April 14, 2010, Drug Enforcement Administration ("DEA") Special Agents and Beverly Hills Police Department ("BHPD") Detectives observed Underwood deliver two wooden crates to known co-conspirators Jimmy Luong ("Luong") and Tony Barrera ("Barrera").

Based on other seizures in this investigation, I believe the crates contained approximately 260,000 pills of MDMA.

According to Detective Kaiser, the above "narrative" section summarizes the information provided to Detective Kaiser by Agent Johnson and is written from Agent Johnson's perspective.*fn2 Kaiser Decl. ¶ 6.

After the "narrative" section quoted above, the affidavit continued to a new section, "Evidence of Crimes Will be Obtained on the Subject Premises." This section provided generalized opinions about the behavior of drug traffickers. The section stated that drug traffickers often maintain evidence of drug crimes at their residence. It also stated that traffickers commonly "front" or provide illegal controlled substances to their clients on consignment and therefore keep records of money owed and payments made. The section stated that based on intercepted conversations and surveillance observations, Agent Johnson believed that most of the higher level members of the Luong organization were given ecstasy through "fronting" arrangements.

Next, under the same "Evidence of Crimes Will be Obtained on the Subject Premises" heading, Detective Kaiser described his role in serving the federal warrants at the Cantrece Residence on July 22, 2010. Detective Kaiser stated that officers discovered that the residence actually belonged to Underwood's mother, who provided officers with Underwood's home address (the Mansa Residence). He then narrated his involvement in Underwood's arrest at the Mansa Residence:

I knocked on the front door and it was answered by John Underwood. I informed him of the federal arrest warrant and assisted DEA Agent Nickerson in placing him under arrest. For officer safety reasons, my squad conducted a protective sweep of the residence. During the sweep, Detective Davis saw an amount of what appeared to be marijuana in a zip loc baggie on a table in the living room. John Underwood has declined to consent to a search of his residence. I request that a warrant be searched at the location to recover evidence as described in the above "For the following."

The "For the following" section referenced by Detective Kaiser lists a broad array of evidence to be seized, including records of drug transactions, bank account records, supplier lists, phones, drugs such as Ecstasy, drug paraphernalia, currency over $500, personal records such as bills, photographs and videos involving drugs, and firearms. Based on Detective Kaiser's affidavit, a judge of the Los Angeles Superior Court issued a search warrant for the Mansa Residence. A search of the Mansa Residence resulted in a seizure of 33 kilograms of cocaine, $417,000 in cash, 104 ecstasy pills, packaging material, and a "pay/owe" sheet.

II. Legal Standard

Unreasonable government intrusion into the home is the chief evil against which the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Fourth Amendment prohibits a general warrant. Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). In issuing a search warrant, a neutral judge must determine that there is a "fair probability that ... evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)) (quotations omitted). "Probable cause is determined by looking at the totality of circumstances. . . ." United States v. Nielsen, 371 F.3d 574, 579 (9th Cir. 2004).

In determining whether probable cause was established for the search, the Court considers information provided to the judge issuing the warrant, including reasonable inferences drawn by the affiant. 2 LaFave, Search and Seizure, §3.2(d) (4th ed. 2008) at 49 [hereinafter "LaFave"]. However, "probable cause can[not] be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based." United States v. Ventresca, 380 U.S. 102, 108-09 (1965) (internal quotations omitted); see also Gates, 462 U.S. at 239 ("An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and . . . wholly conclusory statement[s] . . . fail[] to meet this requirement."); United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir. 1978) ("A search warrant may not rest upon mere affirmance or belief without disclosure of supporting facts or circumstances."). "The requirement that the affidavit recite the facts relied upon by the affiant to support the conclusion that probable cause exists is simply a part of the larger principle that the official charged with acting on the affidavit must be able to judge for himself the persuasiveness of those facts, as well as make an independent determination that they establish probable cause." United States ex rel. Grano v. Anderson, 446 F.2d 272, 275 (3d Cir. 1971).

"A magistrate judge's finding of probable cause is entitled to great deference. . . ." United States v. Clark, 31 F.3d 831, 834 (9th Cir.1994), cert. denied, 513 U.S. 1119, 115 S.Ct. 920, 130 L.Ed.2d 800 (1995); accord United States v. Krupa, 633 F.3d 1148, 1151 (9th Cir. 2011); Nielsen, 371 F.3d at 579 (noting a magistrate judge's finding of probable cause is reviewed for clear error). Furthermore, "[i]n borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it." United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990) (citation omitted). "[T]he duty of a reviewing court is simply to ...

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