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United States v. Hernandez

United States District Court, Ninth Circuit

April 29, 2013



DEAN D. PREGERSON, District Judge.

Presently before the court is Defendant Diomar Hernandez's Amended Motion to Suppress Evidence. Having considered the submissions of the parties and heard oral argument, the court denies the motion in part, grants in part, and adopts the following order.

I. Background

Defendant is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and obstruction of justice in violation of 18 U.S.C. § 1513(b)(2). Between January and March 2012, a confidential informant, working at the direction of Special Agent Stephanie Romo ("Agent Romo") of the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), exchanged text messages with Defendant regarding the possibility of obtaining firearms from Defendant on behalf of a third party. Defendant sent the informant pictures of firearms, as well as a price list. During a recorded phone call on March 12, Defendant stated, "I got an AK and two pistols. And I have them at home, I have them at home." Defendant further said, "Look, we can bring... the AK, you can take him the Uzi, you can take him the R15..., it's the same one they call the M4.... I have the AK with me right now." The informant and Defendant agreed to meet at Defendant's residence on March 13.

The morning of March 13, Defendant became suspicious of the informant, and no transaction occurred. Later that day, at approximately 2:30 p.m., ATF agents secured Defendant's residence and began preparing an affidavit (the "Affidavit") to obtain a search warrant. The Affidavit included the subheadings, "Attached and Incorporated" and "Statement of Probable Cause." The affiant, Agent Romo, explained her training and provided a history of her investigation of Defendant. The Affidavit explained that Los Angeles County criminal records indicated that Defendant had two prior felony convictions, making it illegal for him to possess firearms. The Affidavit also described the phone call between the informant and Defendant:

CI inquired if he/she could purchase two (2) AR-15 rifles and one (1) Uzi. [Defendant] told CI that he may have a hard time acquiring the Uzi before March 13, 2012, however, [Defendant] stated that he had one (1) AK-47 rifle and two (2) pistols, currently at his residence that CI could purchase.

Agent Romo concluded by stating

Based on the foregoing and my experience, it is my opinion that [Defendant] has violated California Penal Code 29800(a)(1) (felon in possession of a firearm) and that this violation occurred at [Defendant's residence]. It is also my belief that the evidence of this crime will be located and will be found at the premises, vehicles, and cell phones to be searched.

Agent Romo also prepared a search warrant titled "Search Warrant and Affidavit" ("the warrant"). In a signed introductory statement, Agent Romo swore that "the facts expressed... in the attached and incorporated Statement of Probable Cause are true... and [the affiant] has probable cause to believe and does believe that the articles, property, and persons described below are lawfully seizable...."

The warrant form included a section headed "You are Therefore COMMANDED to SEARCH: (premises, vehicles, persons)[.]" In that section, Agent Romo typed "(see attached and incorporated pages)[.]" The following section, captioned "for the FOLLOWING PROPERTY, THING(s) or PERSON(s):" also read "(see attached and incorporated pages)." Aside from the Affidavit, only one page was attached to the warrant form. That attachment, headed "YOU ARE THEREFORE COMMANDED TO SEARCH, " described Defendant's apartment in a "LOCATION" section and a white van in a "VEHICLES" section. No page captioned "for the FOLLOWING PROPERTY, THING(s) or PERSON(s)" was attached to the warrant.

A superior court judge signed the warrant at 3:22 p.m. ATF agents searched Defendant's apartment and storage areas and recovered an AK-47 rifle, two AR-15 rifle variants, two nine millimeter pistols, and four pieces of mail.

II. Discussion

A. Validity of the Warrant

Defendant argues that the warrant is invalid because it fails to specify with particularity the specific items to be seized. The government contends that the warrant is facially valid because it incorporated Agent Romo's Affidavit, which, the government argues, provided ...

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