The pending motions were motivated by a search warrant and affidavit that serve as a prime negative example of documentation presented in seeking a court order to invade that most protected of spaces, a personal residence. The warrant affidavit, submitted to a state Superior Court magistrate, is rambling and difficult to comprehend in its totality, which has burdened this reviewer with the teeth-gnashing task of determining whether the requirement of particularity was satisfied so as to support the challenged searches that occurred in 2009. The government, which accepted prosecution of the case, complicated matters and stoked suspicions of a Franks violation by realizing, only after the defense filed its motions and an evidentiary hearing had begun, that the discovery it had produced was at best incomplete, at worst misleading. The court ultimately concludes, after a careful and searching review of the record and considered reading of the applicable law, that the defense motions for the most part must be denied. The court's conclusion, however, should not be read as condoning in any respect the quality of the workmanship represented by the search warrant and affidavit, or the delayed manner in which the government ultimately provided full discovery of relevant information. The failure of the government -- including state law enforcement officials with whom federal law enforcement has cooperated -- to meet the highest standards in this matter has resulted in the expenditure of innumerable hours in court time and judicial resources, by a court that has many other litigants vying for its attention. The court makes a point of articulating the problems here in order to deter their recurrence and increase the chances that future litigation of this sort either can be avoided or better focused only on the disputes that ultimately require the court's resolution.
Defendant Wqas Khan is charged with violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1). Some of the evidence in this case was gathered during searches of 127 E. Noble Street and 3371 Penelope Street, both in Stockton, undertaken as part of the investigation of the murder of Ryan Flores. These searches were authorized by a warrant issued by Magistrate McFadden of the Stanislaus County Superior Court on December 2, 2009, based on an affidavit prepared by Kirk Bunch, an investigator with the Stanislaus County District Attorney's Office.
Defendant has filed two motions challenging the searches in this case. The first, a motion to quash the search warrant, alleges the warrant lacks the particularity required by the Fourth Amendment. The second, a motion to traverse the warrant under Franks v. Delaware, 438 U.S. 154 (1978), alleges that affiant Bunch intentionally or recklessly omitted information or included incorrect information in the affidavit supporting the search warrant. Defendant does not challenge probable cause to search for evidence relating to the murder of Ryan Flores and, as noted below, has waived his argument that the warrant was overbroad.
The court granted defendant's request for an evidentiary hearing on his motion to traverse the warrant on the following topics: (1) differences between reports of surveillance of Miranda Espinoza and the stop report generated by the GPS tracking equipment; (2) the differences, if any, between the affidavit's account of contacts with "Rabbit" and the reports of interviews with that source; (3) whether Bunch was present at the initial in-person interview of Espinoza; (4) the circumstances surrounding Espinoza's mentioning defendant to law enforcement; (5) the circumstances surrounding Espinoza's advising law enforcement that defendant hit Flores on Halloween 2009; (6) Bunch's handling of the warrant and supporting affidavit after Magistrate McFadden signed it on December 2, 2009; and (7) Bunch's presence during the execution of the warrant at 127 E. Noble Street. ECF No. 143. The court took evidence over the course of three days: May 15, May 21, and June 19, 2012.
The parties submitted closing briefs and then supplemental briefs addressing the court's questions about the warrant. After considering the evidence and the parties' arguments, the court GRANTS the motion to quash in part and DENIES it in part and DENIES the motion to quash the warrant.
II. THE WARRANT AND ITS EXECUTION
The warrant in this case authorized seizure of the following categories of evdence; within each category, the warrant identifies many more items sought: --any items tending to establish the identity of those with dominion and control over the premises; --any and all narcotics, dangerous drugs and paraphernalia related to the use and sale of such drugs, including large sums of cash and firearms; --any and all cocaine or cocaine base and paraphernalia commonly associated with the possession, packaging and/or sale of cocaine including large sums of cash and firearms; --any and all marijuana and paraphernalia commonly associated with the possession, packaging and/or sale of marijuana; --any property or items used for the cultivation of marijuana, including firearms and large sums of cash; --any and all firearms, including all ammunition for such weapons; --any and all property, clothing, or items belonging to the victim and any trace evidence, such as blood, body fluids, hair and human tissue; --any cleaning chemicals or cleaning devices that could be used to remove evidence of injury; --all clothing material with possible blood stains. Any medical or dental records, hospital records and/or billings. Instrumentalities, trace evidence, or any other evidence of crimes as yet unknown. -any and all clothing, including black gloves and black ski masks; --any and all shoes along with shoe impressions located inside vehicles with any possible blood stain evidence; --DNA swabs from Wqas Khan; --any evidence of street gang membership, such as any paraphernalia making any reference to the "Norteno" street gang and "photographs . . . depicting persons, vehicles, weapons, and/or locations to be relevant on the question of gang membership or association, which depict items sought in this Search Warrant, and/or which depict evidence of any criminal activity"; *fn1 --any newspaper clippings referring to crimes of violence; --address books; --all telephones; --all electronic data processing and storage devices, computers and computer systems; --all of the above records, "whether stored on paper, on magnetic media. . . or on memory storage devices. . . or any other storage media"; --computer or data processing software, stored on any type of medium;
--"examination and search of all of the above components. . . for evidence."
Joint Exhibits (JEX),*fn2 Ex. A at 4-7. The warrant also ordered several telecommunications companies to turn over records relating to several telephone numbers. Id. at 7-9. The issuing magistrate directed that the "Search Warrant Affidavit/Statement of Probable Cause" (the Affidavit) be sealed and "kept in the custody of the Affiant's law enforcement agency and not be made part of the public record until further order of the court . . . ." Id. at 11. The warrant itself does not identify the crime being investigated; the boxes checked at the beginning of the form identify the objects of the search as property or things related to the commission of a felony. Id. at 3. The warrant does include the following language: "proof by affidavit, having been this day made before me by Peace Office Kirk B. Bunch . . ." JEX A at 1. And it concludes: "This Search Warrant and Affidavit and attached and incorporated Statement of Probable Cause were sworn to as true . . ." JEX A at 9.
The Affidavit is a forty-seven-page stream-of-consciousness narrative about a homicide investigation, that indicates a belief that California Penal Code § 187(a), felony murder, has been violated. JEX, Ex. B. The affidavit describes the early morning shooting of Ryan Flores on Boothe Road in Ceres*fn3 on November 22, 2009. Id. at 3. Police who responded to the scene learned that witnesses heard gunshots and saw two Hispanic males carrying duffel bags and running to a Mitsubishi Lancer after the shooting. Id. at 5. They recovered 9 mm shells from inside 2021 Boothe Road, where Flores had collapsed on the porch. Id. at 5-6. In addition, police found a key in the front door of 2026 Boothe Road, other keys in the street, and foot impressions in the wet grass leading to 2021 Boothe. Id. at 4. The resident of 2021 Boothe reported hearing a cell phone ringing as Flores lay dying; police found a cell phone near Flores's body. Id. at 5.
Police learned that the rental contract on 2026 Boothe Road was in Miranda Espinoza's name. Id. at 8. During the execution of a warrant at 2026 Boothe Road, Bunch answered a ringing cell phone police found in the house. Id. at 9. After some hesitation, the caller identified herself as Espinoza, said that her boyfriend and his friend stayed at the house, but that she did not, even though her name was on the lease. Id. Espinoza was reluctant to identify her boyfriend even though Bunch told her he was investigating a serious crime. Id. at
10. Espinoza asked if her boyfriend was dead; Bunch countered that he may have been "severely injured." Espinoza showed no emotion. She finally identified her boyfriend as Ryan Flores and his friend as "Rabbit." Id. Officers found marijuana, scales, pay-owe sheets, packaging materials, and guns at 2026 Boothe. Id.
Later on the morning of November 22, 2009, Officers Greibel and Perry talked to Espinoza at 127 E. Noble Avenue in Stockton and advised her that Flores was dead. Id. She went with them to the Ceres Police Department. Id. at 11. Before leaving, Perry saw a dry erase board in Espinoza's bedroom with Norteno graffiti, which Espinoza attributed to a cousin. Id.
At the police station, Espinoza said she had been out clubbing the night before and was supposed to meet up with Flores later; she had last communicated with him close to 1:00 a.m. on November 22, when she received a text. Id. She said she was not as close to Flores as she had been because he was sometimes violent toward her and because he was dating a stripper; she denied dating anyone else "who might have issues with him." Id. at 12, 13, 14, 15,
22. She told the officers she had seen Flores on November 20, 2009, when he took her and her daughter to the mall; this was the first time they had spent time together in a few months. Id. at 16.*fn4
Espinoza said she had told Rabbit there had been a shooting but also that she thought Flores might be in jail. She provided two phone numbers for Rabbit, whom she identified as Flores's right hand man. Id. at 12, 14, 17.
Espinoza also told Perry and Greibel about an associate of Flores, someone named Fernando, who was robbed and shot. Id. at 13, 14, 19. Bunch learned from a San Joaquin County Sheriff's Detective about a home invasion robbery on November 13, 2009: three men broke into the home of a man named Franco Valdez, asked for money, threatened to shoot his baby and then shot him. Id. at 24. Valdez believed the men were Nortenos because of their use of slang. Id. at 25. McCullough reported that Flores and Valdez were business associates and there were rumors that Espinoza had set up Valdez. Id.
Bunch and Detective Yandell of the Ceres Police Department interviewed
R. Urrea, the mother of one of Flores's children. Id. at 23. Flores had told Urrea that he had been in a fight over Espinoza on Halloween at a Modesto nightclub. Id. at 23-24. Urrea told Bunch she believed Espinoza was involved in the murder. Id.
At some point, William Fry, the person known as Rabbit, called Bunch, and provided information about his association with Flores. Id. at 24. Fry said he provided transportation and protection for Flores and his drug shipments. Id. at 25. Fry was suspicious of Espinoza, who told Flores where her ex-boyfriends kept their drugs, as though encouraging Flores to rob other drug dealers. Id. He also felt Flores was spending too much money on Espinoza and too much time with her, and had rashly shown her "everything, which caused him some concern." Id. As a result, Fry broke off communication with Flores for a while. Id. at 26.
When Fry returned to Flores's employ, sometime in August 2009, they set up several houses "where they conducted business." Id. In late September 2009, one of Flores's drug houses was burglarized, with both money and drugs taken. Fry suspected that Espinoza had set up the burglary because she was the only one outside of their inner circle who knew about the house. Id. at 25.
Flores told Fry that Flores was in a club on Halloween when Espinoza and another man came in. When Flores pushed Espinoza, her companion slugged Flores in the face and took Flores's diamond necklace. Id. at 27. Flores later learned the man goes by the name Wqas. Id. Fry also reported that Flores and Wqas exchanged threats on the telephone; the call ended with Wqas telling Flores "he was going to smoke him." Id. Fry made inquiries on the street and learned that Wqas was a Norteno and "was not the type of guy to mess with." Id. Sometime later Flores and Wqas talked on the phone again and Wqas told Flores "that it was still on." Id.*fn5
Bunch called Espinoza on November 24 and asked her why she had not mentioned the fight in the club on Halloween; she said she did not think it was important. Id. at 28. She claimed she had gone to the club with her girlfriends and "some random unknown guy" hit Flores after Flores hit her. When Bunch asked if the "random unknown guy" was Wqas, she said yes. Id.
Later that day Officer Perry called Espinoza, who said that Wqas did not hit Flores and it was a man named Zobb who did. Espinoza said she had not seen Wqas for two weeks because she did not like the way he treated her. Id. at 29.
Bunch gained access to Espinoza's MySpace page and saw a picture of her with one male, all in red, flashing gang signs and another picture with Wqas, the defendant in this case. Id. Urrea told Bunch that after November 24, Espinoza had removed the picture of defendant. Id.
Bunch located a Stockton Police Department report documenting that on October 9, 2009, Officer Hamblin received information that a Middle Eastern male, "Quas," who was an active Norteno gang member, was in possession of illegal guns. At some point, police had recovered several illegal firearms, an explosive device and some narcotics from 1403 Sutra Avenue, where "Quas" was renting a room. Id. at 30. The owner said the illegal materials belonged to "Quas"; police lifted one of defendant's fingerprints from a Redbull can found in the room where the guns and narcotics were located. Id.
Flores's phone showed a number of texts from Espinoza, including one right around the time Flores was shot. Id. at 31.
On November 23, 2009, police established surveillance of Espinoza "in order to confirm or disprove [her] original statement provided on 11-22-2009, that her [sic] and W. KHAN had no relationship and that she had not seen him for approximately two weeks prior to the murder of R. FLORES because she did not like how W. KHAN treated her." Id. at 31.
The surveillance records showed that Espinoza parked her car near 3373 Penelope Drive, identified as defendant's house, on several occasions beginning on November 23, and that she stayed "at the residence" for varying times. Id. at 31-32.
Sometime later the police undertook surveillance of defendant, noting that he parked his car near Espinoza's house on E. Noble Street on several occasions, ...