Defendant Earnest Washington III is charged with one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); the indictment also includes a forfeiture allegation based on 21 U.S.C. § 853(a). (ECF 8.) On January 24, 2012, defendant filed a motion to suppress evidence seized during a search of two separate residences on June 9, 2011, as well as evidence seized during defendant's arrest and a search of his person on the same day. (ECF 29.) The government filed an opposition to the motion on March 21, 2012. (ECF 35.) Defendant filed a reply on May 15, 2012. (ECF 40.) On May 30, 2012, the court heard argument on defendant's motion to suppress. Defendant was present in custody at the hearing, with his counsel, Paul Irish. The government was represented by Assistant United States Attorney Todd Leras. Following oral argument the court took the matter under submission. For the following reasons, the motion to suppress is denied.
On June 6, 2011, four law enforcement officers searched a trash bin outside of 1048 Topsail Drive, Vallejo, California. The trash bin was up against the curb on the street directly in front of 1048 Topsail, and no other bins were nearby. ECF 29 at 26. The photo of the bin in the record on the pending motion is dark and difficult to make out; neither party has provided a better copy of the photo after the court provided time for doing so.
Inside the trash bin, the officers found eight clear plastic bags, seven sandwich-sized and one gallon-sized, containing white residue that tested positive for the presence of cocaine. Id. at 26-27. They found one bag that had been molded into the shape of a brick, consistent with packaging of kilogram quantities of cocaine, and a number of other plastic bags with missing corners, consistent with packaging of smaller amounts of cocaine base. Id. In addition, the officers found two pieces of mail addressed to "Earnest Washington" at 1048 Topsail. Id. at 27.
On June 7, 2011, Solano County Deputy Sheriff Eric Oberreuter observed a dark purple Honda Accord parked at 1048 Topsail. The Honda was registered to Earnest Washington III at an address of 207 Cypress Ave., Apt. A, Vallejo, California. Id. Oberreuter identified the man exiting the Honda as Earnest Washington, Jr., based on a photo in the California Department of Motor Vehicles (DMV) database. Id. Washington, Jr. was the registered property owner of 1048 Topsail, but his DMV record showed him residing at 921 Colusa St., Apt. C, Vallejo, California. Id.
On June 8, 2011, Oberreuter requested a search warrant for 1048 Topsail. His affidavit in support of the warrant request described the June 6 trash pull and his June 7 observation and investigation of 1048 Topsail, and opined that Earnest Washington, Jr. lived at 1048 Topsail where he possessed cocaine suitable for sale. Id. at 26-27, 29. At 4:59 p.m. on June 8, a Solano County Superior Court Judge issued the warrant requested for 1048 Topsail. The warrant authorized a search of the residence, as well as Earnest Washington Jr. (with a birth date of November 12, 1948) and a 1996 Acura registered to Earnest Washington Jr. The warrant also authorized seizure of items including cocaine, paraphernalia associated with the use and sale of cocaine, and any property identifying either the persons in control of the property or the existence of a conspiracy to sell illegal drugs, in addition to other items. Id. at 21-22.
B. 207 Cypress Ave, Apartment A
In May 2010,*fn1 a person dubbed a Confidential Reliable Informant (CRI) told
Oberreuter that someone known as "Big Earn," who lived in an apartment at 207 Cypress Ave, Vallejo, California, was selling cocaine. ECF 29 at 38. According to Oberreuter, the CRI had expertise in cocaine identification and had assisted in more than five prior investigations of illegal drug sales that led to arrests. Id. at 37-38. The CRI positively identified "Big Earn" as Earnest Washington III. The CRI had known Washington III for over one year, had bought cocaine base from Washington III at least ten times, and had seen Washington III with several rocks of cocaine base multiple times during May 2010. Id. at 38.
Also in May 2010, Oberreuter took part in an investigation of Washington III. During the investigation, the CRI conducted a controlled purchase of cocaine at 207 Cypress from the person the CRI identified as Washington III. Id. at 39-40. Officers saw Washington III and a white Chevrolet Tahoe registered to Washington III multiple times, at both 207 Cypress and 1048 Topsail, and one time saw Washington III doing yard work at 1048 Topsail. Id. at 39-41.
Oberreuter knew Earnest Washington III based on his own contact with Washington III, patrols of the area around 207 Cypress and word of mouth from citizens and law enforcement suggesting that Washington III was involved in the sale of controlled substances. Id. at 38-39.
On June 8, 2011, Oberreuter also requested a search warrant for 207 Cypress, Apartment A. Oberreuter's affidavit in support of this warrant indicated that a signed search warrant existed for 1048 Topsail based on probable cause established by the June 6, 2011 trash pull; the affidavit did not attach or incorporate by reference the Topsail warrant but referenced it more than once and also referenced the Topsail Drive address several times. Id. at 37, 39-42. In the Cypress affidavit, Oberreuter outlined the investigation of Washington III, but did not separately provide any details of the trash pull. See id. at 37-42. He noted that he had seen Washington III at Cypress Avenue on June 6, 2011, two days before seeking the warrant, and that he had seen the purple Honda Accord parked at the Topsail address one day before. Id. at 40-41. Based on his investigation, Oberreuter opined that at the time the warrant was requested Washington III was living at both 207 Cypress and 1048 Topsail and possessed cocaine for sale. Id. at 44.
At 5:08 P.M. on June 8, 2011, nine minutes after signing the Topsail warrant, the same Superior Court judge who signed the Topsail warrant signed the Cypress warrant. Id. at 23, 34. The warrant authorized a search of the apartment at 207 Cypress, Apartment A, Earnest James Washington III (with a date of birth of March 7, 1975) and two vehicles registered to Earnest James Washington III (a 2002 Chevrolet Tahoe and a 1999 Honda Accord), and the seizure of property including cocaine, paraphernalia associated with the use and sale of cocaine, and any property identifying either the persons in control of the property or the existence of a conspiracy to sell illegal drugs, in addition to other items. Id. at 32-33.
C. Execution of the Warrants*fn2
Both search warrants were executed on June 9, 2011. At about 7:00 a.m., law grams of what they suspected to be crack cocaine in thirty-one separate plastic bags. Id. The officers then searched the residence at 1048 Topsail and discovered a baby blue size XXL "RocaWear" brand jacket, a digital scale, packaging and cocaine residue, two pistols, $12,632.00, and multiple indicia bearing Washington III's name. Id. After being given Miranda ...