United States District Court, N.D. California
For Elijah Cooper, Defendant: Ethan Atticus Balogh, LEAD ATTORNEY, Coleman, Balogh & Scott LLP, San Francisco, CA.
For USA, Plaintiff: Benjamin Patrick Tolkoff, LEAD ATTORNEY, United States Attorney's Office, CAN Criminal Division, Major Crimes, San Francisco, CA; Wai Shun Wilson Leung, United States Attorney's Office, Northern District of California, San Francisco, CA.
ORDER RE: SEPTEMBER 26, 2014 MOTIONS Re: Dkt. Nos. 70-73, 84
SUSAN ILLSTON, United States District Judge.
On November 12, 2014, the Court held a hearing on various motions brought by defendant. Having considered the arguments of counsel and the papers submitted, the Court hereby rules as follows.
On February 5, 2013, a confidential human source (" CHS"), working with the FBI, engaged in a controlled narcotics purchase with suspect Anthony Knight. Declaration of Ethan A. Balogh (" Balogh Decl.") Ex. B. While the CHS was discussing the terms of the buy with Knight, a white Mercedes pulled into the parking lot and Knight went to meet with the driver of the Mercedes. Id. The Mercedes then drove away again. Id. Knight then got into the CHS's car, gave the CHS an ounce of crack cocaine, and told the CHS that Knight's supplier had to go back and get the remainder of the drugs. Id. When the Mercedes returned to the parking lot, Knight went to meet with the Mercedes's driver again, and then gave the CHS the remainder of the drugs the CHS had paid for. Id.
The FBI sought to ascertain who had been driving the white Mercedes. A query to the California Department of Motor Vehicles, based upon the car's license plate number, revealed that the car was registered to a Johnny Ray Trammell. Id. Ex. H ¶ 64 n.11. The CHS was shown a photo of Trammell, but the CHS said that the driver of the Mercedes was younger looking. with close cropped hair. Id. ¶ 71. The CHS was then shown a photo of Tony Befford; the CHS identified Befford as the driver. Id.
Agents then tried to verify the CHS's identification of the driver as Befford. Id. ¶ 72. The agents conducted further surveillance of the white Mercedes, but concluded that the driver was not Befford. Id. The agents then asked the San Francisco Police Department (" SFPD") to conduct a traffic stop to determine who the driver was. Id. The SFPD complied, and identified the driver as defendant Elijah Cooper. Id. Cooper was wearing a royal blue hooded sweatshirt when the SFPD conducted the traffic stop. Id.
On February 6, 2013, federal agents asked CHS about the misidentification of Cooper as Befford. Id. ¶ 73. The CHS was then shown a photo of Cooper; the CHS identified Cooper as the driver of the white Mercedes. Id. The CHS stated that, during the controlled buy, Cooper's hair was " a bit longer" than depicted in the photo. Id. Ex. D. One agent asked the CHS what the driver had been wearing during the controlled drug buy. Id. Ex. H. ¶ 73. The CHS responded that the driver of the white Mercedes had been wearing a " royal blue hoodie." Id.
On February 21, 2013, the government sought a wiretap for Knight's telephone, and named several individuals, including Cooper, as target subjects for surveillance. Id. Ex. G, at 2. On April 4, 2013, the government sought two more wiretaps, one of which was for Cooper's mobile phone. Id. Ex. L.
The FBI agents were aware that Cooper, at that time, was serving a term of supervised release for a prior narcotics trafficking conviction. Declaration of Jacob D. Millspaugh (" Millspaugh Decl.") ¶ 2. The agents decided not to contact Cooper directly because they believed that the contact would be noticed and Cooper would be considered a snitch, and thereby placed in danger. Id. Therefore, the agents decided to contact Cooper's probation officer, Octavio Magaña, to see if he could help arrange a meeting. Id.
On August 16, 2013, FBI agents, SFPD officers, and an Assistant U.S. Attorney (" AUSA") went to Mr. Magaña's office to meet with Cooper. Id. ¶ 3. After Cooper arrived and learned who all the individuals were, Cooper was advised that they had evidence he was engaged in drug dealing, and that it was in his interest to cooperate with them. Id. Cooper was not questioned about the crimes under investigation; rather, he was told about some of the evidence against him. Id.
On September 26, 2013, following weeks in which Cooper never responded regarding his willingness to cooperate, agents swore out a criminal complaint against Cooper for distribution of cocaine base and conspiracy to distribute. Id. ¶ 5. On October 4, 2013, the FBI agents, SFPD officers, and an AUSA, again went to Mr. Magaña's office to meet with Cooper. Id. ¶ 6. The AUSA asked Cooper if he had considered what had been discussed at the August, 2013 meeting. Id. Cooper stated that he wanted to see a lawyer. Id. He was immediately arrested. Id. .
Two SFPD officers then transported Cooper to the San Francisco Hall of Justice for post-arrest processing. Id. ¶ 7. According to Cooper, he was placed in an interrogation room, shown photos of men from his neighborhood, and asked questions about the activities of those men. Declaration of Elijah Cooper (" Cooper Decl.") ¶ 6. Cooper declined to answer any questions. Id. Because Cooper was arrested after the Friday morning magistrate calendar had already concluded, Cooper was ...