Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States of America v. $28

March 29, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
$28,000.00 IN U.S. CURRENCY,
DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER:

1) GRANTING DEFENDANT'S MOTIONS TO SUPPRESS AND FOR SUMMARY JUDGMENT; AND

2) DENYING PLAINTIFF'S MOTION FOR SUMMARY CLAIM JUDGMENT AND TO STRIKE

Before the Court are dueling Motions for Summary Judgment, Defendant-Claimant's Motion to Suppress Evidence, and the Government's Motion to Strike Defendant-Claimant's claim. As explained below, the Court finds that the Motion to Suppress is dispositive of the litigation, and accordingly grants that motion and the Defendant-Claimant's Motion for Summary Judgment.

FACTUAL BACKGROUND

The salient facts are undisputed. With a warrant for his arrest, federal agents arrested Robert Moser on June 25, 2010 in the garage of his home in Encinitas, California. Before transporting Moser to jail, the agents escorted him into his home so he could retrieve medications he was currently taking. While inside the house, the agents asked Moser whether he had any weapons. Moser revealed that there was a loaded handgun under his mattress, and the agents seized it.

The federal agents summoned Brian Bloomberg, a local San Diego County Deputy Sheriff, to take custody of the gun. When Deputy Bloomberg arrived in the garage, he smelled marijuana. Deputy Bloomberg asked Moser, who was sitting handcuffed in a chair, if there was marijuana in the garage. Moser initially said "no," but after the deputy pressed the point Moser nodded toward a large plastic trash bag. Deputy Bloomberg opened the bag and discovered remnants of marijuana plants inside.

After finding the plant remnants, Deputy Bloomberg took a closer look around the garage. He noticed modified air ducts and a recirculating water pump, which he recognized as equipment used for cultivating marijuana indoors. Through an open door leading from the garage into the house, he also spotted a number of CO2 canisters, which are also used in indoor marijuana cultivation. Deputy Bloomberg then turned back to Moser and asked him "Are you growing weed in this house?" Moser didn't respond initially, but when Bloomberg repeated the question Moser said he was.

At that point, Deputy Bloomberg and one of the federal agents entered the house to look around. In addition to other marijuana cultivating equipment, they discovered a large number of live marijuana plants in a downstairs bedroom.

Upon discovering the marijuana, Deputy Bloomberg called for assistance from Narcotics Task Force Officer Steve Reed. When Reed arrived at the residence, he entered and conducted his own inspection of the marijuana and the equipment. Reed then asked Moser, who remained handcuffed in the garage, for consent to search the house. After initially balking, Moser consented to the search when Reed informed him he would obtain a search warrant, which could take up to 3 hours. Reed then reentered the house and discovered additional marijuana and $28,000 in currency.

It is uncontested that Moser was not given Miranda warnings before he responded to Deputy Bloomberg's question whether there was marijuana in the garage. It is likewise uncontested that neither Deputy Bloomberg nor Narcotics Task Force Officer Reed obtained either a search warrant or Moser's consent before they initially entered the residence to look around.

LEGAL ANALYSIS AND CONCLUSIONS

In all but exceptional circumstances, police must obtain a search warrant before entering and searching a person's home. No search warrant was obtained in this case

The search warrant requirement may be excused when a person with authority to consent voluntarily permits the police to search without a warrant. But if that consent is given after an initial illegal search, evidence obtained is tainted by the illegality and is inadmissible, unless subsequent events have purged or attenuated the taint. United States v. Bautista, 362 F.3d 584, 592 (9th Cir. 2004); United States v. Chavez-Valenzuela, 269 F.3d 719, 727 9th Cir. 2001, amended by 279 F.3d 1062 (2002); United State s v. Hotal, 143 F.3d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.