ORDER RE: MOTION TO SUPPRESS
CHARLES R. BREYER, District Judge.
Defendant Amezcua-Casillas is charged with being an illegal alien in possession of a firearm. Now before the Court is Amezcua-Casillas' motion to suppress evidence of a firearm, and all other evidence found in his home during a search authorized by a warrant from a state court. Amezcua-Casillas argues that the warrant was invalid because the supporting affidavit failed to establish probable cause. After carefully considering the record, and the parties' written and oral submissions, the Court GRANTS the motion.
Amezcua-Casillas is charged with various counts related to possession of a firearm by an alien (18 U.S.C. § 922(g)(5)), possession of a stolen firearm (18 U.S.C. § 922(j)), and being an unlicensed firearm dealer (18 U.S.C. § 922(a)(1)). Indict. (dkt. 1) at 1-2. The charges stem from the search of Amezcua-Casillas' home pursuant to a search warrant issued by a judge on the Superior Court of San Francisco. Officer Perdomo of the San Francisco Police Department signed an affidavit in support of the search warrant. Perdomo's affidavit was based, in part, on an undercover operation in which Perdomo engaged Amezcua-Casillas via text messages in negotiations to purchase a firearm. Mot. to Suppress (dkt. 8) at 2. This affidavit is the focus of Amezcua-Casillas' motion to suppress.
According to the affidavit, Perdomo received information from a confidential reliable informant in January 2013 that led to the arrest of Jaime Ochoa for possession of 1/8 of an ounce of methamphetamine. Mot. to Suppress, Ex. 1 (Affidavit for Search Warrant) at 1-2. Perdomo obtained a search warrant for Ochoa's phone and found a text message with a photo of a firearm received from a phone number he later determined to belong to Amezcua-Casillas. Id. at 2. Perdomo explains what happened next in the affidavit:
On February 13, 2013, I text XXX-XXX-XXXX pretending to be a friend of Ochoa's. I text the user of XXX-XXX-XXXX that I was looking to buy a firearm for $500.00. The user of XXX-XXX-XXXX replied that he would sell me a.38 super for $600.00. The user sent me a photo of the firearm via text....
Between February 13, 2013 to February 21, 2013, I contacted XXX-XXX-XXXX regarding the sale of multiple firearms. The user of XXX-XXX-XXXX admitted that the firearm depicted in [the photo] had been sold since he sent the photo. The user of XXX-XXX-XXXX stated that he would attempt to acquire a 9 millimeter or a.45 caliber firearm to sell to me....
A computer check revealed that there is no record of Angel Amezcua-Casillas being a licensed firearm dealer. I know it is unlawful under Cal. Penal Code Section 26500(a) for a person to sell a firearm without a license.
Id. at 2-3.
The text message exchange additional shows relevant information not included in Perdomo's affidavit. Specifically, on February 21, 2013 Amezcua-Casillas texted Perdomo that he had been unable to find any firearms: "no, no I have nothing." Mot. to Suppress, Ex. 2 (Text message spreadsheet) at 2. For the next six days Amezcua-Casillas made no mention of firearms of any kind despite numerous inquiries from Perdomo. After Amezcua-Casillas stopped responding to Perdomo's texts, Perdomo secured a warrant to search Amezcua-Casillas' home. Mot. to Suppress at 4. The search yielded an illegal firearm and ammunition, among other things. Opp. to Mot. to Suppress (dkt. 9) at 1.
Courts must show deference to a magistrate judge's determination of probable cause. Illinois v. Gates , 462 U.S. 213, 236 (1983). Nonetheless, courts are "not to defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause." United States v. Leon , 468 U.S. 897, 915 (1984) (internal quotation omitted). The affidavit supporting a search warrant must show a "fair probability that contraband or evidence of a crime [would] be found in' defendant's home." United States v. Hill , 55 F.3d 479, 480 (9th Cir. 1995) (alteration in original) (quoting Gates , 462 U.S. at 238).
The central question before the Court is whether Perdomo's affidavit established probable cause to search Amezcua-Casillas' home. The affidavit must at least show a "fair probability that contraband or evidence of a crime [would] be found in defendant's home." Hill , 55 F.3d at 480 (alteration in original) (internal quotations omitted). Here, the ...