United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
On April 22, 2015, the parties appeared for hearing on defendant Jason Laborin's motion to suppress evidence. Sherry Haus, Assistant United States Attorney, appeared for the government; Jesse Ortiz appeared for defendant, who was present in custody. For the reasons set forth below, the court DENIES defendant's motion.
Defendant is charged with possession of a firearm in violation of 18 U.S.C. § 922(g)(1), with a criminal forfeiture allegation based on 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c). Indictment, ECF No. 7. The charges stem from a federal supervised release compliance search conducted at defendant's residence on July 22, 2013. King Report at 3, ECF No. 26.
Defendant began a term of supervised release in connection with a previous conviction on April 27, 2012. Lutke Decl. ¶ 4, ECF No. 16-1. The conditions of his supervised release included that defendant "shall not possess a firearm, destructive device, or any other weapon, " "shall permit a probation officer to visit him  at any time at home or elsewhere, " and "shall submit to the search of his person, property, home, and vehicle by a United States Probation Officer, or any other authorized person under the immediate and personal supervision of the probation officer, based upon reasonable suspicion, without a search warrant." United States v. Laborin, No. 2:06-CR-00193-DLJ, ECF No. 32 at 3.
Miranda Lutke, defendant's probation officer, was contacted by Special Agent David Sieber of the Federal Bureau of Investigation (FBI) on July 19, 2013. Lutke Decl. ¶ 7; see also Sieber Decl., ECF No. 16-2 at 3. Sieber informed Officer Lutke that the FBI had a "credible source" stating defendant was "dealing large amounts of methamphetamine and was keeping it at his residence, " and that defendant had ties to the Nuestra Familia and Norteño gangs. Id. Based on this information and Officer Lutke's previous knowledge of defendant's affiliation with "Varrio Gardon Sacra, a Norteño gang set, " id. ¶ 8, she investigated the tip. Specifically, she contacted the Bureau of Prisons and submitted a data inquiry to its database system to determine whether defendant had been in contact with any inmates. Id. ¶ 9(b). She discovered defendant had been in extensive contact with an inmate who was a known gang member, and had wired the inmate $600 in the previous year. Id. ¶ 9(c). Based on this information, and the terms of defendant's supervised release, Officer Lutke sought approval to search defendant's residence for evidence of violations of supervised release. Id. ¶ 11.
The search itself is described in the narrative summaries of Officer Justin King and Agent Christopher Mouzis, at the time assigned to the FBI's Safe Streets Task Force. King Report, ECF No. 26; Mouzis Report, ECF No. 16-4. The Sacramento Sherriff's Department, the Safe Streets Task Force and the United States Probation Office conducted the search on July 22, 2013. King Report at 4. The search team attempted unsuccessfully to contact defendant at about 8:55 a.m., at the address he reported as his residence in his monthly supervision report. Lutke Decl. ¶ 11. Search team members were able to reach defendant by telephone and they requested he come to the residence. Id. At approximately 9:30 a.m., defendant was observed walking toward the residence, and he was detained for the search in accordance with the officers' standard practice for safety purposes, handcuffed in a police vehicle. Sieber Decl. ¶ 14; see also Mouzis Decl. ¶ 5. Defendant told officers he did not have keys to the residence; ultimately officers entered through an open window. King Report at 4. During the search, defendant's mother Maggie Laborin, who also lived at the residence, arrived. Id. Officers asked her if she knew of any weapons or contraband in the house, and she told officers she was holding a gun for someone. Id. She directed officers to a purse in her bedroom closet, which contained a canvas pouch with a black pistol inside. Id. Also in the handbag was a firearm suppressor. Id. Maggie Laborin was questioned, and she told officers the gun belonged to her son, the defendant. Id. at 5. Upon the discovery of the gun, at approximately 10:22 a.m., defendant was read his Miranda rights. Mouzis Report, ECF No. 16-4. "It was about this time" when defendant saw his mother being detained by officers; he became "upset, " and asked officers to let his mother go, stating that the gun was his. Id .; see also King Report at 5.
II. MOTION TO SUPPRESS
A. Search of the Residence
Defendant contends the warrantless search was without reasonable suspicion or probable cause in violation of the Fourth Amendment. Def.'s Mot. at 6. Accordingly, he says, the evidence obtained during the search and any statements by him or his mother should be suppressed. Id. The government argues suppression is improper because reasonable suspicion justified the search. Opp'n at 1.
Because defendant was on supervised release, he has a diminished expectation of privacy. United States v. Lofton, 244 F.Appx. 113, 114 (9th Cir. 2007) (citing United States v. Knights, 534 U.S. 112, 122 (2001)). As noted above, the terms of defendant's supervised release expressly allow for a warrantless search of himself, his property, or his home if officers have "reasonable suspicion" that defendant is engaged in criminal activity. In order to determine whether reasonable suspicion exists, a court must consider the totality of the circumstances and the probability, rather than the certainty, of criminal conduct. United States v. Cortez, 449 U.S. 411, 417 (1981); see also United States v. Sokolow, 490 U.S. 1, 8-10 (1989) (reasonable suspicion depends on the "totality of the circumstances-the whole picture"; several facts may, when considered together, add up to reasonable suspicion). The officer must be aware of "specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (quotations omitted). Tips from informants, combined with a defendant's previously known gang affiliation, can support reasonable suspicion. United States v. Asprilla, No. CR 10-0348, 2011 WL 845919, at *4 (N.D. Cal. Mar. 8, 2011), aff'd, 473 F.Appx. 570 (9th Cir. 2012). Reasonable suspicion is determined from the perspective of an experienced law enforcement officer under the totality of the circumstances. See United States v. Alvarez, 899 F.2d 833, 837 (9th Cir. 1990).
Here, the reliability of the tip from a credible source was bolstered by defendant's previously-known gang activity and his confirmed contemporaneous communications with an inmate affiliated with a gang. Lutke Decl. at 3. The officers had reasonable suspicion justifying the search of defendant's residence.
B. Defendant's Detention
Defendant argues his detention during the search, while he was handcuffed, placed in a police vehicle and questioned by Sgt. Mouzis, amounted to an arrest without probable cause. Even if he was not arrested, defendant argues his ...