Federal Drug Case Motion to Suppress

As a Former Assistant United State’s Attorney and current Maryland Federal Criminal Attorney I have handled hundreds of Federal Drug Cases. Before as a prosecutor and now as a defense attorney I am often amazed at how quickly and often lawyers plead their client’s guiilty in highly defensible cases.

I take the opposite approach and employ a scorched earth policy of fighting every case on every level before even considering a plea to include attacking the validity of search warrants which many attorneys never even consider. Here is a written motion to suppress we filed in a case recently attacking the warrant and moving to suppress the evidence.

Mr. Doe is charged in a two count indictment with knowingly, intentionally, and unlawfully possessing with the intent to distribute a quantity of cocaine and knowingly, intentionally and unlawfully possessing with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. 841 on April 12, 2002. A search and seizure warrant was executed on that date at Mr. Doe’s residence, 1234 Main Street Anytown, Maryland. Additionally, the police also executed warrants on the Red Roof Inn, Room #123 in Jessup, and Bank of America Bank Account # and Safe Deposit Box #.

II. Facts The following facts may be gleaned from the affidavits submitted to support the application for the search warrant for Mr. Doe’s residence (attached as Exhibit 1):
On April 12, 2002, the affiant executed a search and seizure warrant at a certain location on a certain individual whose identity is withheld for fear of retaliation (CS-1). CS-1 was found in possession of a large quantity of cocaine. After being Mirandized, CS-1 informed the affiant that his supplier’s name was John Doe, a black male, approximately twenty nine years old. CS-1 stated that he had been purchasing cocaine from John doe since 1996 and has been to Doe’s home in Carroll County on several recent occasions. CS-1 stated that he had purchased cocaine from that location and other pre-arranged locations. On that date, CS-1 directed the affiant to Doe’s home, identified as 1234 Main Street..
The affiant observed a silver BMW parked in the driveway, tag # listed to Jane Doe. CS-1 identified the BMW as one of the vehicles Doe utilized in delivering cocaine. The affiant conducted spot surveillance and observed a red colored Chevrolet Blazer pull up in front of that address. A black male left the car running, went inside the address for two to three minutes and then left the area. Also on that date, the affiant obtained BGE records which showed the utilities at that address are listed to Jane Doe.

CS-1 agreed to make a controlled call to John doe and order a quantity of cocaine. CS-1 stated that Doe agreed to sell him cocaine and that they were going to meet at Mars Music on Powers Lane in Baltimore County. The affiant established surveillance of Mars. Approximately one hour later, the affiant observed a black male matching the physical description of John doe pull onto the Mars parking lot operating the silver BMW. Detectives approached the black male operator and stated, “you know what we’re looking for.” The black male, identified as John doe, stated, “It’s in my jacket” and motioned his head in the direction of the interior of the BMW.
Detective Disney conducted a K-9 scan of the BMW. Disney’s dog gave a positive alert and from inside the jacket pocket- 1 blue plastic bag containing one clear plastic bag with 10 ounces of suspected cocaine (street value approximately $28,000) and from his person- $1,024 of U.S. currency. Detectives mirandized John doe and advised that they were going to his house at 1234 Main Street. Detectives asked if anyone else lived at that address. Doe stated that his wife lived there and there were two guns in the home. Detectives then went to the address with keys seized from Doe. The keys fit the locks at that address. A white Volkswagon Jetta was parked in the driveway which John doe had previously stated was used by his wife.
III. Argument A. Mr. Doe was illegally seized in violation of the Fourth Amendment.

Although the Fourth Amendment is not implicated in every police-citizen encounter, the Fourth Amendment is implicated once an individual has been “seized,” that is, once an individual is no longer “free to leave.” Florida v. Royer, 460 U.S. 491, 502 (1983); United States v. Wilson, 953 F.2d 116 (4th Cir. 1991). In determining whether a seizure has occurred, the test is whether in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988). In this case, Mr. Doe was approached by the affiant and members of the Carroll County police department. The police approached Mr. Doe as he was exiting his vehicle with guns drawn on the open parking lot and began questioning him- “you know what we’re looking for.” No reasonable person would have believed that he was free to ignore the officers and leave the area. Therefore, Mr. Doe was seized at that time.
That seizure was illegal. There was no reasonable articulable suspicion to seize Mr. Doe. The confidential source (CS-1) had no reliable track record. In fact, the confidential source had just been found with a large quantity of cocaine during the execution of a search and seizure warrant for his/her residence and was clearly looking to help himself/herself by providing any information (accurate or not) to be cooperative. There was nothing of significance which was corroborated by the police. The alleged controlled call was not recorded by the police, nor were the police able to determine for themselves that drugs were discussed during the call. The conversation between the confidential source and Mr. Doe could have been completely innocent. In fact the conversation appeared completely innocuous to anyone listening. The affiant relied completely on CS-1’s interpretation of that phone call. The fact that Mr. Doe arrived at the location is not grounds to reasonably conclude that there was criminal activity afoot. There was no basis for the illegal seizure of Mr. Doe.
B. The subsequent search of Mr. Doe’s car was illegal.

Because Mr. Doe was illegally seized, the subsequent search of the vehicle was also illegal as fruit of the poisonous tree. Part of the probable cause calculation by the police was based on the alleged statement by Mr. Doe “it’s in my jacket.” Mr. Doe denies making that statement. Assuming Mr. Doe made this statement, it was made during his illegal seizure and is therefore fruit of that illegal seizure and cannot be used to establish probable cause to search Mr. Doe’s vehicle. The Government also alleges as part of its probable cause to search the vehicle that the narcotics dog alerted to the presence of narcotics. Mr. Doe denies that the narcotics dog alerted. Additionally, Mr. Doe maintains that the dog was placed inside his vehicle to see if the dog would alert. If the dog was placed inside the vehicle, this is tantamount to a search of Mr. Doe’s vehicle. Therefore, any evidence found in the vehicle must be suppressed as fruit of the poisonous tree.
C. This Court must excise all warrant affidavits of information obtained in violation of the Fourth Amendment.

Under the “fruit of the poisonous tree” doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the Government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 602-03, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). In this case, there were several violations of the Fourth Amendment and no break in the chain of events which is sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. The information acquired in violation of the Fourth Amendment was then used to support the issuance of the warrants. First, Mr. Doe’s alleged statements were made while Mr. Doe was being detained subject to an illegal seizure of his person. Therefore, any and all statements made by Mr. Doe must be suppressed and excised from the warrant. Secondly, as discussed above, the search of Mr. Doe’s car and recovery of drugs was in violation of his Fourth Amendment rights and must also be excised from the warrant.

The police also illegally seized Mr. Doe’s keys and used those keys to illegally activate the lock at Main Street.. The police then entered Mr. Doe’s residence and conducted an extensive search of the residence before applying for and obtaining a warrant. Mr. Doe’s wife was present and can verify that the warrantless search occurred. (See Affidavit of Jane Doe attached as Exhibit 2) During the illegal search, the officers found the two guns. The affiant then used the knowledge of the guns to support the issuance of the warrant. To cover the warrantless search, the affiant falsely alleges that Mr. Doe told him that there were guns in the home. Prior to their illegal entry, no exigency existed to justify the illegal entry into Mr. Doe’s home. As a result of these Fourth Amendment violations, all of the illegally obtained information must be excised from the warrants by this Court. The inclusion of certain illegally obtained information does not require suppression of the evidence seized under the warrant (“fruit of the poisonous tree) if, excluding the illegally obtained information, probable cause for the issuance of the warrant could still be found. United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987). In this case, when this Court excises all of the illegally obtained information, probable cause for the issuance of the warrant cannot be found.
D. Motion to Suppress Any Statement made by Mr. Doe as violative of Miranda v. Arizona.
Not only were Mr. Doe’s alleged statements a product of his illegal seizure, they were also in violation of Miranda. Miranda warnings are required when a subject is interrogated while in custody. Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. United States, 530 U.S. 428, 444 (2000). The test for determining custody is whether, under the totality of the circumstances, the “suspect’s freedom of action is curtailed to a degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984). It is evident that when Mr. Doe was approached and stopped by the officers as he was walking away, he was no longer free to leave. Therefore, any statement attributed to Mr. Doe must be suppressed.

E. No probable cause existed for the issuance of the warrant to search
Doe’s home.

The Fourth Amendment requires that no search warrant shall issue without probable cause. Probable cause means a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). This Court must determine whether there is substantial evidence in the record to support the magistrate’s decision to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 728 (1984). While this Court should pay “great deference” to findings of probable cause, it does not mean that warrants should be upheld when based on objectively unreasonable grounds for believing the warrant is valid. Illinois v. Gates, supra, 462 U.S. at 236.
In United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993), the Fourth Circuit found that the affidavit was devoid of any basis from which the magistrate could infer that there was evidence of drug activity at Lalor’s residence. The Court noted that the affidavit did not describe circumstances which indicated that such evidence was likely to be stored at Lalor’s residence nor did it explain the geographic relationship between Lalor’s residence and the area where drug sales occurred. The Court emphasized “residential searches have been upheld only where some information links the criminal activity to the defendant’s residence.” Id. at 1583.

In this case, the affidavit reflects that a confidential source related that Mr. Doe distributed cocaine. The source related that he had purchased cocaine from Mr. Doe’s residence. The affiant provided no information as to the confidential source’s reliability. See Illinois v. Gates, 462 U.S. 213, 233 (1983) (holding that an informant’s reliability and basis of knowledge are two factors relevant to probable cause determination) The source stated that Mr. Doe lived at the Sandcroft Court address and pointed out the residence. At best, the confidential source provided innocent details regarding Mr. Doe’s residence which anyone could know.
In United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), the Fourth Circuit explained that in evaluating whether an informant’s tip establishes probable cause, the degree to which the report is corroborated is an important consideration. The affidavit in Wilhelm, as in this case, did not adequately support a finding of probable cause. It depended on information from an unnamed informant and provided no indication of the informant’s truthfulness or reliability. The Fourth Circuit also noted that corroboration of directions to Wilhelm’s house was not enough. The Court stated, “almost anyone can give directions to a particular house without knowing anything of substance about what goes on inside that house.” Id. at 121. The unreliable confidential source’s allegation that he purchased drugs from Mr. Doe at that address was in no way corroborated by the police.

Thereafter, the confidential source allegedly made a controlled call to Mr. Doe. The affiant did not record this call and relied totally on the confidential source to interpret the call. The affiant provided no specific information about the call- which phone number was used, and most importantly, was the call to Mr. Doe’s residence, etc. The fact that Mr. Doe arrived at the location where the source indicated he would appear also does not indicate that narcotics would be found at Mr. Doe’s residence. Seizure of drugs from Mr. Doe’s vehicle does not establish a nexus to Mr. Doe’s home, as demonstrated in Lalor. The alleged observation by the affiant of the Red Blazer is innocuous and in no way corroborated drug dealing at Mr. Doe’s residence. It is important to note that Mr. Doe was not seen or surveilled from his home to the Mars Music Store. There is no connection of drug dealing to Mr. Doe’s residence other than the confidential source’s unsupported assertion. There is insufficient nexus to connect criminal activity to the place to be searched, Mr. Doe’s residence. Therefore, any evidence seized from the residence must be suppressed.
F. Any evidence seized from the search of the bank account and safe deposit box must be suppressed.
The Affidavit in Support of the warrant for the Bank of America Bank Account and safe deposit box (attached as Exhibit 3) contains information which is the product of Mr. Doe’s illegal seizure and the illegal search of Mr. Doe’s home and vehicle. Therefore, any and all evidence seized from the bank account and safe deposit box must be suppressed as fruit of the poisonous tree.
G. Any evidence seized from the search of the hotel room at the Red Roof Inn in Jessup, Maryland must also be suppressed.

The Affidavit in Support of the warrant for the Red Roof Inn, Room #123 (attached as Exhibit 4) contains information which was learned during the illegal search of Mr. Doe’s home and the illegal search of the bank account and safe deposit box. Therefore, any and all evidence seized from the hotel room must be suppressed as fruit of the poisonous tree.
H. A Franks v. Delaware Hearing Must Be Conducted Due to the False Information in the Warrant Application Affidavit.

To be entitled to a Franks hearing, the defendant “must make a substantial preliminary showing that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included by the affiant in the warrant application,” and the offending information must be essential to the probable cause determination. Franks v. Delaware, 438 U.S. 155-56 (1978). A hearing can be denied only where the offending information is excluded and probable cause remains in the affidavit. Id. The Fourth Circuit also applies Franks to intentional, material omissions. See United States v. Colkey, 899 F.2d 297, 301 (4th Cir. 1990).
The affidavit in support of the search contains false statements. The affiant alleges that Mr. Doe made certain statements (“it’s in my jacket”; that his wife lived with him and there were two guns in the home at 1296 E. Sandcroft Road) which contributed to the magistrate’s finding of probable cause. Mr. Doe denies making these statements. (See Affidavit of John doe attached as Exhibit 5). The police knew that the guns were present because they had illegally searched the residence without a warrant. Moreover, these alleged statements were made in violation of Miranda.
Furthermore, Mr. Doe denies the presence of the Red Blazer at his residence. Mr. Doe was home during the time period that the affiant alleges that the Red Blazer came to his home. It simply did not occur. It is interesting to note that the affiant indicated that he could see the tag number of the BMW in the driveway but the affiant does not make note of the tag number of the alleged Red Blazer. If the affiant had seen the Blazer, an alleged drug customer of Mr. Doe, one would expect that the affiant would have copied the tag number or followed the vehicle to attempt to determine the person’s identity.

Additionally, the affiant omits relevant information from the warrant. For example, the tag number of the BMW observed at 1234 Main Street is listed to 1234 Bank Street, Baltimore, Maryland, not Mr. Doe’s residence. Mr. Doe’s driver’s license which was seized by the police upon arrest at the Mars Music Store lists his address as 1234 West Street, Columbia, Maryland. This is important information which was omitted that the magistrate should have been provided in determining whether probable cause existed to search Mr. Doe’s home, 1234 Main Street. There was no evidence other than the unconfirmed word of an unproven confidential source that Mr. Doe lived at Main Street. These matters must be explored at a Franks hearing.
I. There could be no good faith reliance on this warrant.
In Leon v. United States, 468 U.S. 897, 104 S.Ct. 3405 (1984), the Supreme Court recognized a good faith exception to suppression of evidence obtained from a deficient warrant. The good faith exception, however, does not apply:
first, when the warrant is based on an affidavit containing “knowing or reckless falsity”; second, when the magistrate has simply acted as a “rubber stamp” for the police; third, when the affidavit does not “provide the magistrate with a substantial basis for determining the existence of probable cause”; and finally, when the warrant is so “facially deficient” that an officer could not reasonably rely on it.
United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996) (quoting United States v. Leon, supra, 468 U.S. at 923, 104 S. Ct. at 3420. The good faith exception cannot save this unconstitutional search. As previously stated, the affidavit contains material false statements. These false statements are material. Therefore, there can be no good faith reliance on this warrant.
J. The confidential source’s identity and location must be disclosed.

The question of whether the identity and location of a confidential informant must be disclosed requires a balancing of interests.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance rendered nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crimes charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Roviaro v. United States, 353 U.S. 53, 62 (1957). In his treatise, United States Magistrate Judge Horn observes that “the key factor in determining whether disclosure is required has been the confidential informant’s role in the investigation.” C. Horn, Fourth Circuit Criminal Handbook ยง79 at 103 (2000 ed.). Thus, while the identity of a “mere tipster” need not be disclosed, disclosure will likely be mandated where the confidential informant is an active participant in the crime. United States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986).

In this matter, the confidential source was an alleged active participant in the investigation and crime in as much as he/she stated that he/she had received narcotics from Mr. Doe at Mr. Doe’s residence; and, most critically, participated in an alleged controlled call with Mr. Doe which he alone interpreted for the law enforcement officers. Manifestly, Mr. Doe is entitled to learn the identity and location of the confidential source whose active participation in alleged crimes with Mr. Doe was central to the affidavit in support of the warrant. The disclosure of the confidential source is particularly necessary under the circumstances of this case where Mr. Doe actively denies participating in the criminal acts alleged. The disclosure of the informant’s identity and location is of particular importance to the issue of whether reasonable suspicion existed to seize Mr. Doe. Therefore, the Government must disclose the identity and location of the confidential source.
For the aforegoing reasons, Mr. Doe respectfully requests that this Honorable Court suppress any and all evidence seized from his residence, the bank, the safe deposit box and the hotel room suppress any alleged statements made by him, and order the disclosure of the identity of the confidential source.

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