UNITED STATES DISTRICT COURT
NORTHERNDISTRICT OF TEXAS
SANANGELO DIVISION
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
)
Plaintiff, ) 6:05-CR-034-02-C
)
v. )
)
BENJAMINJERMAINE YYY, )
)
Defendant. )
)
MOTIONTO SUPPRESS FRUITS OF SEARCH AT 514 SOUTH NUECES STREET AND MEMORANDUM OF LAWIN SUPPORT THEREOF
Defendant, Benjamin Jermaine YYY, hereby moves thisCourt to suppress the fruits of the search of his residence at 514 South NuecesStreet, Coleman, Texas that took place on or about December 30, 2004. In support of this motion, Mr. YYY setsfor the following facts and argument.
I.INTRODUCTION
The search of 514 South Nueces Street was donepursuant to a search warrant signed by a Coleman County Magistrate on December29, 2004. The warrant was basedupon an affidavit by Marty Baker. SeeSearch Warrant Affidavit (the ÒAffidavitÓ) attached hereto as AttachmentA. To call the affidavit ÒbarebonesÓ would be charitable. Itsimply states that Òwithin the past 72 hoursÓ (i.e.at early as December 26, 2004) a confidentialinformant saw Melanie Nunez in possession of Òa tan rock-like substance that[she] purported to be cocaineÓ at 514 South Nueces Street. Nomention is made as to the amount of the Òtan rock-like substanceÓ or whether itwas being used at the time it was seen.
II. DISCUSSION
TheFourth Amendment requires that probable cause support each warrant issued. Probable cause to search is Òa fairprobability that contraband or evidence of a crime will be found in aparticular place.Ó Illinois v.Gates, 462 U.S. 213, 238 (1983). There must not only be probable causeto believe that a federal crime has been committed, but also a substantialbasis to conclude that instrumentalities of a crime will be found on thepremises to be searched. United States v. Lockett, 674 F. 2d 843, 846 (11th Cir. 1982).
TheUnited States Supreme Court recognized, in Sgro v. United States, 287 U.S. 206, 211 (1932), that in order for asearch warrant to be valid Òthe time within which proof probable cause must betaken by the judge or commissioner...must be of facts so closely related to thetime of the issue of the warrant as to justify a finding of probable cause atthat time.Ó From that holding, thedoctrine of ÒstalenessÓ developed. Indeed, it is now well recognized that probable cause must be presentand timely. See, e.g.,United States v. Diecidue, 603 F. 2d 535 (5th Cir. 1979).
ÒAbsentadditional facts tending to show otherwise, a one-shot type of crime, such as asingle instance of possession or sale of some form of contraband, will supporta finding of probable cause only for a few days at best.Ó 2 Wayne R. Lafave, Search and Seizure,¤ 3.7(a) at 275 (2004). Becausestale, Òbare bonesÓ search warrant affidavits are a rarity in federal court, itis instructive to review state cases where defendants were charged with simplepossession of contraband.
Louisianav. Boneventure, 374 So. 2d 1238 (La. 1979)involved very similar facts to the instant case. There, a December 4, 1977 search warrant affidavit recitedthat an Òinformant had occasion to be present at 7164 Meadowpark on or aboutDecember 2, 1977 and observed a quantity of green vegetable material identifiedand offered for consumption as being marijuana by the occupant of 7164Meadowpark occupant being Alan Buchanan.Ó Id. at 1239. As if talking about the instant case,the Boneventure court wrote:
Inthe instant case the affidavit fails to establish probable cause to believethat the evidence or contraband observed by the informant at the defendants'residence was not disposed of but remained at the place to be searched. A"quantity" of marijuana is an indefinite amount. However, the entire"quantity" observed was "offered for consumption." Thus,the marijuana observed was a small amount which could be consumed by the personor persons to whom it was offered. Under the circumstances, as set forth in theaffidavit, there was not probable cause to believe that the same consumableamount of marijuana which was offered to a person or persons for consumptionapproximately two days before remained at the place to be searched. Nor wasthere probable cause to believe, as opposed to grounds for suspicion, thatother marijuana than that offered for consumption could be found at the placeto be searched.
Id.
Similarly, in State v. Kittredge, 585 P.2d 423, 424 (Or. Ct. App. 1978), Ò[t]he onlyoperative facts recited in the affidavit supporting issuance of the warrant arethat (1) a confidential reliable informant was in certain premises Ôwithin thepast 96 hoursÕ and that (2) while there he observed marijuana.Ó Like the Boneventure court, the Kittredge court rejected such an affidavit as stale:
Thefollowing facts, among others, are notmade known: (1) How muchmarijuana was seen. The amount could have been as little as less than an ounceor more than a ton. The amount observed is significant because it affects thelikelihood that some marijuana will be found there later. If only a singlemarijuana cigarette was observed, it was probably gone 96 hours later. If largequantities were observed, there would exist at least a permissible inferencethat some remained or that the premises were being used as a market for thesale of marijuana.
Id.
InState v. Urbach, 730 P.2d 571 (Or. Ct.App. 1986), the affidavit stated that Ò[t]he Confidential Reliable Informant(Hereafter referred to as CRI) stated that he/she had been present at 2145 S.Hwy 97 Redmond, OR. within 48 hours of our conversation, and had personallyobserved 1/4 to 1/2 ounce of crank at the said residence.Ó The Court found the warrant affidavitto be stale:
Thereis no information telling the issuing magistrate the significance of 1/4 to 1/2ounce of the drug: whether that is a small amount that would be consumed by oneindividual in a single day or whether it is an amount that would supply a userfor several days. Additionally, there is nothing to indicate that there iscontinual drug traffic or use in defendant's residence. All the credibleinformation which the affidavit discloses, vis-a-vis drug use or possession, isthat the informant saw and reported a single incident of drug possession. Thereis nothing in the affidavit to support an inference that drugs would be presentin defendant's residence 48 hours after the informant was there.
Id. at 572.
InPeople v. Siemieniec, 118 N.W.2d 430,431 (Mich. 1962), a search warrant for liquor was issued based upon anaffidavit of a police officer that, four days earlier, he had observed thedefendant making illegal sales ofliquor on the premises to be searched. The Michigan Supreme Court held that the affidavit wasstale, noting:
If Mrs. Siemieniec unlawfully sold orfurnished for sale alcoholic beverages on September 13, 1958, she could havebeen prosecuted for doing so, but such sale alone afforded no ground for a finding ofreasonable cause to believe that on September 17th, four days later, she wascontinuing to do so, thereby justifying issuance of the search warrant. Whether the affiant'sobservations are made 4, 6 or 66 days before application for a search warrant,the warrant may issue only upon a showing that reasonable cause exists tobelieve illegal activity is occurring at the time the warrant is sought. Justas in People v. Wright, supra, there was nothing in the affidavit presented inthis case to indicate that the acts observed on September 13th continued tooccure [sic.] on September 17th.
Id. at 431-32.
InPeople v. David, 326 N.W.2d 485, 487(Mich. Ct. App. 1982), the affidavit was based upon a controlled buy made by a confidential informant three daysearlier. Again the affidavit washeld to be stale:
[I]nthe case at bar, the affidavit alleged only a single sale, not continuing drugsales. The affidavit did not even state that defendant possessed any marijuanaafter he made the sale to the informant. On the facts presented to themagistrate, there is absolutely no evidence to suggest that defendant wouldstill possess marijuana three days after the sale to the informant. We findthat, whether extending great deference to the magistrate's determination ofprobable cause or reviewing that determination for an abuse of discretion, thecircuit court properly held that the magistrate's decision to grant the searchwarrant was erroneous.
Id. at 488.
InState v. Whitley, 993 P.2d 117, 118(N.M. Ct. App. 1999) the affidavit at issue stated, inter alia: ÒInformation received from the confidential sourceon 11-17-97 is that while at the Crane Motel, 1212 West Second, Room Number #24, the confidential source has observed Paul Whitley sell marijuana in the past (48) forty-eight hours(emphasis added).Ó The Court, inholding the affidavit stale, noted that Òthe affidavit concerned the sale ofmarijuana, a highly consumable item.Ó Id. at 119.
The instant case is very similar to the several casescited above. Here, the onlyoperative facts mentioned in the affidavit is that seventy-two hours prior toapplying for the warrant (four days prior to conducting the search), MelanieNunez was seen in possession of Òa tan rock-like substance that [she] purportedto be cocaine.Ó Like Boneventure, Kittredge there is no quantity of the drug mentioned in the affidavit. Indeed, like the analogy to themarijuana cigarette in Kittredge, the one rock appears to be one ÒservingÓ of a drugthat could easily have been consumed by the time of the search and, in fact,might have been being consumed at the time the confidential informant witnessedthe substance. In any event there is certainly nothingin the affidavit to state Òwhether [there was] a small amount that would beconsumed by one individual in a single day or whether it is an amount thatwould supply a user for several days. Urbach, 730 P.2d at 572. Moreover, the facts in this case areeven stronger than in Siemieniecand Whitley, because there isabsolutely no allegation in the affidavit that Ms. Nunez was distributing anydrugs, as opposed to using drugs,and, from the affidavit, it appears that this was just a one-shot type of crimeof possession of a controlled substance. In sum, all the affidavit contains is information thatfour days before the search a confidential informant alleges to have seen asingle instance of drug possession. See Urbach, 730 P.2d at572. There was no evidencepresented to the Coleman County magistrate that this presumably consumableamount of cocaine would have still been present at 514 South Nueces Street fourdays after it was seen and the police did nothing to try to update theinformation to prevent it from being stale. See Boneventure,374 So.2d at 1239.
III.CONCLUSION
Theaffidavit supporting the search warrant in this case was stale and,consequently, all fruits of the search conducted in reliance upon the stalewarrant must be suppressed.
Respectfullysubmitted,
F.Clinton Broden
Broden& Mickelsen
Tx.Bar 24001495
2707Hibernia
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)p
Attorneyfor Defendant
BenjaminJermaine YYY
CERTIFICATE OF CONFERENCE
Pursuantto Local Rule 5.1 of the Northern District of Texas, I, F. Clinton Broden,certify that I conferred on the attached motion with Jeffrey R Haag , theAssistant United States Attorney assigned to the case and it was determinedthat the government opposes the motion.
F.Clinton Broden
CERTIFICATE OF SERVICE
I,F. Clinton Broden, certify that on July 22, 2005, I caused the foregoingdocument to be served by first class mail, postage prepaid, on:
JeffreyR Haag
USAttorney's Office
1205Texas Ave
7thFloor
Lubbock,TX 79401
GonzaloP Rios
LawOffice of Gonzalo P Rios
228West Harris Ave
SanAngelo, TX 76903
325/655-6224
_________________________________
F.Clinton Broden
UNITEDSTATES DISTRICT COURT
NORTHERNDISTRICT OF TEXAS
SANANGELO DIVISION
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
)
Plaintiff, ) 6:05-CR-034-02-C
)
v. )
)
BENJAMINJERMAINE YYY, )
)
Defendant. )
)
ORDER
Havingconsidered Defendant Benjamin Jermaine YYYÕs Motion to Suppress Fruits of theSearch of 514 South Nueces Street, said motion is this day of ___________, 2005 GRANTED.
ORDERED,all items seized during the search of 514 South Nueces Street, Coleman, Texasconducted on or about December 30, 2004 are hereby suppressed.
SAMR. CUMMINGS
UNITEDSTATES DISTRICT JUDGE