Monday, August 3, 2009

Text version of the motion

V. CASE NUMBER: 07-20124
COMES NOW, Carrie and Guy Neighbors, by and through counsel, John M.
Duma and Cheryl Pilate and moves this court pursuant to Rule 12(b)(3) of the
Federal Rules for Criminal Procedure for an order suppressing certain evidence
seized to be used in the trial in chief against the defendants. In support of said
motion the defendants would state as follows:
On November 30, 2005 an officer of the Lawrence Police Department applied
for and received a search warrant for among other things
“The residence located at 1104 Andover Street, Lawrence Douglas County, Kansas
66049 . . .”.
The affidavit that was submitted in support of the search warrant contained 43
pages of information, single-spaced, outlining why the officer requesting the
search warrant believed the warrant should issue.
The affidavit contained only minimal references to the residence located at
1104 Andover Street, Lawrence Kansas (hereinafter referred to as Andover). The
remainder of the affidavit outlined information that supported the request for a
search warrant on the commercial establishment known as “Yellow House” located
at 1904 Massachusetts Street, Lawrence Kansas.
The affidavit contained information regarding the Andover location based on
items collected from bags of trash in front of the Andover address. The first trash
pull occurred on November 16, 2005. The officer that recovered the trash did not
observe who placed the bags of trash at that location, further there was no mention
in the affidavit as to whether there were other bags of trash in the same vicinity as
the bags recovered by the officer. After recovering the two trash bags the officer
took the same to a secure location to “thoroughly search” the same.
The search of the trash bags revealed the following information that was set
out in the affidavit on page 20 to wit:
“* eBay document denoting “Hello yellowhair-bargains” and “send
payment” to a sellers address “Polart, 5700 Sarah Ave., FL 34233
* 2 each printed PayPal shipping labels (USPS) to Imad Matar, 12021
Downey AVE., Downey CA 90242 and the return address as yellow
house store, 1904 Massachusetts St., Lawrence, KS 66044 dated
* 1 each printed PayPal shipping labels (UPS) to Crystal Morris 800 E
Diamond Blvd. Ste 3-131, PO Box 115 Anchorage, AK 99515 and the
return address as yellow house store, 1904 Massachusetts St., Lawrence,
KS 66044 dated 11/08/2005
* Pay Pal document denoting “Create your own shipping label” showing
shipper’s address as yellow house store, 1904 Massachusetts St.,
Lawrence, KS 66044 and a print date of 01/21/2002 to Eduard Scott.
* eBay document showing a Compaq Presario Desktop PC 2.93 GHZ that
had been paid for and payment was sent to
YELLOWHOUSE@SUNFLOWER.COM on Sept. 23 2005. Seller
information shows yellowhair-bargains and the winning buyer as
These documents appear consistent with the selling and shipping of
posted eBay merchandise on the yellowhair-bargains web store
indicating transactions are being conducted at the Neighbor’ residence.”
Affidavit dated November 30, 2005 page 20.
The second trash pull occurred on November 30, 2005 wherein the
investigating officers collected a single bag of trash from the curb in front of the
Andover residence. Again the trash was transported to a secure location to be
“thoroughly searched”. The affidavit indicates that the following items were
recovered to wit:
• “An envelope addressed to Guy and Carrie Neighbors showing an
address of 1104 Andover, Lawrence, Kansas.
• An envelope addressed to Carrie Neighbors Yellow House 1904
Massachusetts, Lawrence, Kansas. The document was from Ann
Sutherland of Lake Oswego, Oregon. The document further
demonstrates that business documents addressed to the Yellow House
business are being taken to the owner’s residence located at 1104
(Affidavit dated November 30, 2005 page31).
The discovery provided to counsel for the defendants in this case indicate that
another trash pull was conducted by the Lawrence Police Department on October
26, 2005. The report on that trash pull concluded: “The paper sack that was
collected had nothing of evidentiary value inside it.” This information was not
provided in the affidavit to the issuing magistrate of the search warrant. Further,
there was one trash pull listed in the affidavit, which recovered trash from the
“Yellow House” business. There were no documents or other information to
connect the Andover property with the “Yellow House” property recovered from
the trash pull at “Yellow House”.
The affidavit sets out the great lengths the Lawrence Police Department went
to investigate the transactions occurring at the “Yellow House” store. In the onemonth
period of time leading up to the issuance of the search warrant it appears
that the investigators were conducting an almost continuous investigation of
“Yellow House”. There is no information provided in the affidavit that indicates
that there was ever observed any property being transported from the “Yellow
House” store to the Andover address. The affidavit does not even present a
conclusory opinion by the affiant that ordinarily persons involved in the purchasing
of stolen property keep records of the suspect transactions at their home residence.
The affidavit concludes by stating.
“Furthermore, to complete a more thorough investigation into the fencing of
stolen property and attempted possession of stolen property AFFIANT requests
that search warrants be issued for the before mentioned locations.”
When the officers executed the search warrant they recovered various items
that were placed in evidence that the government intends to use in the presentation
of evidence in its case in chief. Further, while executing the first search warrant
of December 2, 2005 the officers observed what appeared to be marijuana plants
and assorted property which led to the issuance of a second search warrant and
resulting charges being filed in case 07-20073. Also, the executing officers of the
December 2, 2005 search warrants confiscated many items of property that
exceeded the scope of their authority under the issuing warrants.
The investigation into the “Yellow House” business continued after the
execution of the search warrants in December of 2005. On July 6, 2006, a postal
inspector applied for and received a search warrant for the Andover residence. The
affidavit contained a great deal of information discovered as the result of the
previous search warrants having been issued in December of 2005. Without the
information from the December 2005 search, the affidavit for the July 2006
warrant would not have contained enough information for the issuing magistrate to
have found probable cause to issue a search warrant for the Andover property.
Additionally, when the officers executed the July 7, 2006 warrant they allegedly
observed evidence that caused them to apply for and receive yet another search
warrant. During the execution of the second July warrant the officers discovered
what was purportedly a marijuana growing operation at the Andover property.
a. Lack of probable cause to issue warrant
Probable cause requires a nexus between suspected criminal activity and the
place to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th
Cir. 1998). The Fourth Amendment protects individuals from unreasonable
searches and seizures U.S. Const. amend. IV. In determining whether a search
warrant is supported by probable cause, the appellate court review is "the
sufficiency of the affidavit upon which a warrant [was] issued by looking at the
totality of the circumstances [to ensure] 'that the [issuing judge] had a substantial
basis for concluding that probable cause existed.'" United States v. Tisdale, 248
F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
(1983)). The appellate courts afford the issuing judge's finding of probable cause
great deference unless the affidavit fails to provide that substantial basis. See
United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).
“Probable cause undoubtedly requires a nexus between suspected criminal activity
and the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th
Cir. 1990).
In the case before this court the defendants concede that the affidavit for the
first search executed on December2, 2005 would satisfy the probable cause
requirements and nexus for the search of the “Yellow House” store. However, the
defendants would argue that the probable cause requirement and nexus was not
produced in the affidavit provided to the issuing magistrate on the warrant issued
and executed the same date on the Andover property.
The only information listed in the affidavit relating to the Andover property is
the information pulled from two trash pulls conducted by investigating officers
with the Lawrence Police Department. During the two trash pulls the officers
found several pieces of mail along with shipping receipts that contained the
address of the “Yellow House” business or otherwise connected with the “Yellow
House” business. At no time was any information provided to the issuing
magistrate that any documents or other information located at the Andover location
were in any way connected to a specific suspected transaction of stolen property.
There was insufficient information provided to the judge issuing the first search
warrant on the Andover property to provide the necessary probable cause for the
issuance of said warrant.
The defense anticipates the government will argue that even if the affidavit
supporting the warrant was insufficient, the Leon exception will still prevent the
suppression of the evidence in question.
United States v. Leon, 468 U.S. 897 (1984). “In Leon, the Supreme Court
held that evidence seized under a search warrant later determined to be invalid may
be admissible if the officers executing the warrant acted in good faith and with
objectively reasonable reliance on the search warrant. See United States v.
Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990).
There are four situations, however, in which the good faith exception is not
(1) if the issuing magistrate was “‘misled by information in an affidavit
that the affiant knew was false or would have known was false except for
his reckless disregard for the truth;’” (2) if “‘the issuing magistrate
wholly abandoned his judicial role;’” (3) if the affidavit was “‘so lacking
in indicia of probable cause as to render official belief in its existence
entirely unreasonable,’” or in other words, where “‘the warrant application
was supported by [nothing] more than a “bare bones” affidavit;’” and (4)
if the warrant was facially deficient. United States v. Van Shutters, II, 163
F.3d 331, 337 (6th Cir.1998) (quoting Leon, 468 U.S. at 914-15, 104 S.Ct.
at 3416-17).
The defendants would argue that the lack of any recitation of probable cause
that the Andover residence would contain fruits, instrumentalities or other evidence
of criminal activity rendered the affidavit so lacking in indicia of probable cause
that the judicial officer either wholly abandoned his judicial role or any person
acting in their official capacity could not reasonably believe the search warrant was
supported by probable cause.
For this reason alone the evidence found during the search on the first warrant
issued on the Andover property and executed December 2, 2005 should be
b. Overbroad execution of warrant
"The Fourth Amendment requires that a search warrant describe the things to
be seized with sufficient particularity to prevent a general exploratory rummaging
in a person's belongings." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.
1999). We look at the description of the items to be seized practically and the
warrant's language in a common sense fashion. See Davis v. Gracey, 111 F.3d
1472, 1478 (10th Cir. 1997). A warrant is sufficiently particular "when it enables
the searcher to reasonably ascertain and identify the things authorized to be
seized." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982)
Under the law of this circuit, "even evidence which is properly seized
pursuant to a warrant must be suppressed if the officers executing the warrant
exhibit `flagrant disregard" for its terms." United States v. Medlin, 842 F.2d 1194,
at 1199 (10th Cir. 1988) (emphasis added). The basis for blanket suppression when
a search warrant is executed with flagrant disregard for its terms "is found in our
traditional repugnance to `general searches' which were conducted in the colonies
pursuant to writs of assistance." Id. To protect against invasive and arbitrary
general searches, the Fourth Amendment mandates that search warrants
"particularly describ[e] the place to be searched and the persons or things to be
seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United
States, 275 U.S. 192, 196 (1927), [t]he requirement that warrants shall particularly
describe the things to be seized makes general searches under them impossible and
prevents the seizure of one thing under a warrant describing another. As to what is
to be taken, nothing is left to the discretion of the officer executing the warrant. Id.
Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly
exceed the scope of a search warrant in seizing property, the particularity
requirement is undermined and a valid warrant is transformed into a general
warrant thereby requiring suppression of all evidence seized under that warrant."
842 F.2d at 1199 (emphasis added). United States v. Foster, 100 F.3D 846 (10th
Cir. 11/15/1996).
In the case before the court the defendants would argue that both the evidence
seized as a result of the second warrant issued on the Andover property and
executed on December 2, 2005 and the search warrant issued on the “Yellow
House” property also executed on December 2, 2005 should be suppressed as the
result of the officers having grossly exceeded the scope of the property which was
c. Fruit of the Poisonous Tree
The ordinary remedy in a criminal case for violation of the Fourth
Amendment is suppression of any evidence obtained during the illegal police
conduct. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant
may also suppress any other evidence deemed to be "fruit of the poisonous tree,"
(i.e., evidence discovered as a direct result of the unlawful activity), by showing
the requisite factual nexus between the illegality and the challenged evidence.
Wong Sun v. United States, 371 U.S. 471, 485 (1963); United States v.
NavaRamirez, 210 F.3d 1128, 1131 (10th Cir. 2000).
In the instant case the second search warrant executed on December 2, 2005
for the Andover property was issued based on evidence discovered during the
execution of the first search warrant on the same date. Accordingly, the evidence
gained from the second search warrant on the Andover property executed
December 2, 2005 should be suppressed.
Likewise, the first search warrant executed on July 7, 2006 on the Andover
property was issued based on information discovered during the execution of the
first and second search warrants issued on December 2, 2005.
Finally, the second search warrant issued on July 7, 2006 was issued based
only on information gained during the execution of the first search warrant of July
7, 2006. Accordingly, all evidence seized on the first and second search warrants
executed on July 7, 2006 on the Andover property should be suppressed.
Therefore, all evidence seized as the result of search warrants executed on
December 2, 2005 and July 7, 2006 should be suppressed.
Respectfully submitted.
/s/ John M. Duma
JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
/s/ Cheryl A. Pilate
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
I hereby certify that on July 27, 2009, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system, which will send a notice of
electronic filing to Marietta Parker, Assistant U.S. Attorney, 360 U.S. Courthouse,
500 State Avenue, Kansas City, Kansas 66101 and all other counsel of record. I
further certify that I mailed the foregoing document and notice of electronic filing by
first-class mail to the following non-CM/ECF participants: Carrie Neighbors.
_/s/ John M. Duma_____
John M. Duma No.10760
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601

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