Motion To Suppress II
12 - OPINION AND ORDER
Attachment A for her to review. SA Stewart stayed with
Ms. Bacon most of the time while the searches were underway.
Ms. Bacon was watching television news coverage of ~urricane
Katrina and seemed only to peruse the warrant papers from time to
time .
17. As the searches progressed, the agents became aware
that Ms. Bacon had access to a storage room in a nearby
outbuilding belonging to her landlord. SA Supervisor McKinna
scrutinized the amended Search Warrant in an effort to determine
whether Ms. Bacon's storage room inside the landlord's
outbuilding was actually on the premises that Ms. Bacon was
renting and, therefore, within the scope of the "curtilage and
outbuildings" language in the warrant. When reviewing the
amended Search Warrant, however, SA Supervisor McKinna noticed
there were not any X's in the boxes on the upper portion of the
warrant. SA Supervisor McKinna telephoned SA McNall and
discussed this issue and the matter involving Ms. Bacon's storage
room. SA McNall told SA Supervisor McKinna that he was returning
to Magistrate Judge Ashmanskas anyway to present an amended
"Application and Affidavit for Search Warrant1' as he had been
instructed to do, and, in the process, he would take care of the
issue with the unchecked boxes. SA Supervisor McKinna and SA
McNall also discussed the possibility of Ms. Bacon giving written
consent for a search of the storage room.
13 - OPINION AND ORDER
18. Sometime between an hour or two after the agents
arrived ( i . e . , between approximately 1:00 p.m. and 2:00 p.m.),
Ms. Bacon signed a written consent form giving her permission to
the agents to search the storage room.
19. In the meantime, SA McNall returned to ~agistrate ~udge
Ashmanskas with an amended "Application and Affidavit for Search
WarrantH that included explicit references to "outbuildings" and
"curtilage." While in Magistrate Judge Ashmanskasls presence but
without bringing the issue to his attention, SA McNall placed X's
in the empty boxes on the amended Application and in the empty
boxes on the amended Search Warrant that Magistrate Judge
Ashmanskas had signed at 9:45 a.m. that morning and that
SA McNall brought with him. Magistrate Judge Ashmanskas signed
the amended Application, and SA McNall filed it with the Clerk of
Court at 2:00 p.m. A copy of the amended Application was
received in evidence as Exhibit 6. A copy of the amended Search
Warrant with the X's that SA McNall placed in the boxes was
received in evidence as the first page of Exhibit 5.
20. While the agents were searching, Deputy Schellins left
the Bacon residence scene with the Defendant still in custody and
transported him to downtown Portland to be lodged in jail.
Dispatch records associate this activity with 2:18 p.m. although
it is not clear whether that is when Schellins left the Bacon
residence or arrived at the jail.
14 - OPINION AND ORDER
21. In that same period, SA McNall arranged to have faxed
copies of the amended Application (Exhibit 6) and the amended
Search Warrant with the X's that SA McNall placed in the boxes
(first page of Exhibit 5) transmitted to the Sheriff's Office
Substation in Estacada. The transmission occurred at 2:41 p.m.
22. SA Supervisor McKinna learned these papers had been
faxed to the Sheriff's Office Substation. After the agents
completed the searches and inventories at the Bacon residence,
SA Supervisor McKinna went to the Substation, telephoned for a
deputy to come to unlock the Substation, and obtained from the
deputy the newly faxed materials. About 5:30 p.m., SA Supervisor
McKinna returned to the Bacon residence and left with Ms. Bacon
copies of Exhibit 5, Exhibit 6, and the receipt for and inventory
of the items seized.
23. Later that day, Steven Bacon, Defendant's brother, came
to the residence and picked up all of the warrant paperwork that;
was there. Steven Bacon, however, did not see any warrant
documents without X's in the boxes; i . e . , all of the warrant
documents he saw contained X's in the boxes.
Discussion
I. Government agents did not violate Federal Rule of Criminal
Procedure 41.
A. Standards
Federal Rule of Criminal Procedure 41(f) provides:
Executing and Returning the Warrant15 - OPINION AND ORDER
(1) Noting the Time. The officer executing the
warrant must enter on its face the exact date and
time it is executed.
(2) Inventory. An officer present during the
execution of the warrant must prepare and verify
an inventory of any property seized. The officer
must do so in the presence of another officer and
the person from whom, or from whose premises, the
property was taken. If either one is not present,,
the officer must prepare and verify the inventory
in the presence of at least one other credible
person.
(3) Receipt. The officer executing the warrant
must :
(A) give a copy of the warrant and a receipt:
for the property taken to the person from
whom, or from whose premises, the property
was taken; or
(B) leave a copy of the warrant and receipt
at the place where the officer took the
property.
(4) Return. The officer executing the warrant
must promptly return it--together with a copy of
the inventory--to the magistrate judge designated
on the warrant. The judge must, on request, give a
copy of the inventory to the person from whom, or
from whose premises, the property was taken and to
the applicant for the warrant.
In the Ninth Circuit, a federal agent serving a search
warrant must satisfy the requirements of Rule 41(f) (3) at the
outset of the search. United States v. Williamson, 439 F.3d
1125, 1132 (9th Cir. 2006) (citing United States v. Gantt, 194
F.3d 987, 996 (9th Cir. 1999) . Although this rule has been
questioned, it remains as controlling authority in the Ninth
Circuit. Id.
16 - OPINION AND ORDER
B. Analysis
As noted, Defendant seeks to suppress the evidence seized
pursuant to the search warrant served at his mother's residence.
Defendant contends the agents who seized the evidence violated
Rule 41 when they allegedly failed at the beginning of the search
to present and to read to Defendant's mother the particular form
of search warrant that was then in effect.
Consistent with the Court's factual findings, the Court is
satisfied the government has established SA Supervisor McKinna
read all of the amended Search Warrant, including Attachment A,
to Defendant's mother at the outset of the search. In addition,,
the government proved SA Supervisor McKinna gave to Ms. Bacon a
complete copy of the warrant documents for her to review while
she was seated in the living room and the search progressed. The
fact that the amended Search Warrant initially handed to
Ms. Bacon did not contain X's in the appropriate boxes appears t
be merely a clerical oversight. The Court notes all of the X's
were present in the original Search Warrant that Judge Ashmanskas
signed. In addition, the Court concludes the lack of X's in the
amended Search Warrant initially read to Defendant's mother was
not material under these circumstances because the text of the
Search Warrant clearly conveyed the scope of the agents'
authority at the outset of the search.
In addition, the government also established that
17 - OPINION AND ORDER
SA Supervisor McKinna left with Defendant's mother a copy of the
amended Search Warrant that contained X's in the appropriate
boxes together with a complete receipt for all of the evidence
that was seized at the conclusion of the search.
For these reasons, the Court concludes the government's
agents did not violate Federal Rule of Criminal Procedure 41
under the circumstances of this case.
11. The Affidavit supporting the Search Warrant provided a
sufficient basis for the issuing magistrate judge to find
probable cause that Defendant had unlawfully transferred
firearms to an out-of-state resident and that Defendant's
residence contained evidence of firearms crimes.
A. Standards
The Warrant Clause of the Fourth Amendment 'Irequires
compliance with two related but distinct rules." United States
v. Gourde, 382 F.3d1 1003, 1008 (gth Cir. 2004) . "First, [a
search warrant] must describe the place to be searched or things
to be seized with sufficient particularity, taking account of the
circumstances of the case and the types of items involved.
Second, it must be no broader than the probable cause on which it
is based." Id. (internal citations omitted).
The role of a magistrate judge in reviewing a warrant
application is to determine whether, "given all the circumstances
set forth in the affidavit, . . . there is 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 (1983) .
18 - OPINION AND ORDER
The facts presented in the affidavit "must be sufficient to
justify a conclusion that the property which is the object of the
search is probably on the premises to be searched at the time the
warrant is issued. " United States v. Greany, 929 F.2d 523,
524-25 (gth Cir. 1991). A magistrate judge's finding of probable
cause is entitled to great deference, and a reviewing court will
not find a search warrant invalid if the magistrate judge had a
"substantial basisu for concluding that the supporting affidavit
established probable cause. United States v. Clark, 31 F. 3d 831,
834 (gth Cir. 1994) . As the Ninth Circuit has held:
Probable cause exists when the magistrate judge finds
that, " [clonsidering the totality of the -
circumstance^,^^ there is "'a fair probability that
contraband or evidence of a crime will be found.' "
United States v. Gil, 58 F.3d 1414, 1419 (gth Cir.
1995) (quoting Illinois v. Gates, 462 U.S. 213 (1983) ) .
United States v. Reeves, 210 F.3d 1041, 1046 (gth Cir. 2000).
B. Analysis
1. Probable cause existed to believe Defendant
engaged in illegal firearms transactions.
Pursuant to 18 U.S.C. § 922(a) ( 5 ) , it is unlawful for
any person who does not hold a federal firearms license to
I1transfer, sell, trade, give, transport, or deliver any firearm
to any personf1 who also does not hold such a license and who "the
transferor knows or has reasonable cause to believe does not
reside in (or if the person is a corporation or other business
entity, does not maintain a place of business in) the State in
19 - OPINION AND ORDER
which the transferor resides."
Defendant argues SA McNallfs Affidavit and ~pplication
for Search Warrant did not establish probable cause to believe
Defendant violated § 922 (a) (5) because the person to whom
Defendant allegedly sold firearms (SA Ben Zeisemer) was, in fact,
an undercover ATF agent who worked in ATF's portland, Oregon,
office and who allegedly is, like the Defendant, an Oregon
resident. Thus, Defendant contends any sale he made to this
agent could not violate § 922 (a) (5) , and, therefore, there was
insufficient evidence to support a finding of probable cause to
believe Defendant violated § 922 (a) ( 5 ) .
In response, the government correctly notes the Court
is unable to consider this argument in the context of Defendant's
Motion to Suppress because the fact that the agent may work in
Portland does not appear in SA McNallls submission to the
magistrate judge and Defendant did not support his argument with
any showing that SA McNall falsely asserted the agent's
Washington residency. See F r a n k s v. D e l a w a r e , 438 U.S. 154, 170
(1978) .
In order to invoke a F r a n k s hearing to challenge the
facts in an affidavit seeking a search warrant, a defendant must:
make "a substantial preliminary showing that (1) the affidavit
contains intentionally or recklessly false statements, and (2)
the affidavit purged of its falsities would not be sufficient to
20 - OPINION AND ORDER
support a finding of probable cause. " United States v. Stanert,
762 F.2d 775, 780 (gth Cir. 1985) . Defendant has not made any
such showing in support of his Motion to Suppress, and,
therefore, the Court does not reach this argument.
2. Probable cause existed to support a search of
Defendant's residence and vehicle.
According to the Defendant, SA McNallls Affidavit and
Application for Search Warrant did not provide any factual basis
for the magistrate judge to conclude that evidence of firearms
offenses would be found at the Bacon residence or in Defendant's
vehicle. Because he is not a licensed firearms dealer, Defendant
contends there is not any reason to expect evidence of crimes
involving the sale of firearms to out-of-state residents would be
found at his home or in his car. In response, the government
points to numerous references in SA McNallls Affidavit and
Application for Search Warrant from which the magistrate judge
could conclude Defendant, an Oregon resident, repeatedly sold
firearms to a person who identified himself to Defendant as a
resident of the State of Washington.
As noted, the issue is whether the Affidavit was
sufficient for the magistrate judge to conclude, under the
totality of the circumstances, there was a "fair probability"
that contraband or evidence of firearms crimes would be found in
Defendant's residence and vehicle. Contrary to Defendant's
argument, the fact that Defendant is not a licensed firearms
21 - OPINION AND ORDER
dealer does not rule out a common-sense inference that a search
of Defendant's residence and vehicle likely would produce, at a
minimum, records and other evidence of Defendant's numerous
firearms transactions. Indeed, it is reasonable to believe a
person who engaged in the many transactions that Defendant
conducted would record financial and other data about such
transactions. Moreover, it is reasonable to believe that a
search of Defendant's residence and car likely would lead to
proceeds of the transactions.
In light of the totality of the circumstances presented
to the magistrate judge, the Court finds there was "a
'substantial basis' for concluding that the supporting affidavit:
established probable cause." See United S t a t e s v. Clark, 31 F.3d
at 834.
Accordingly, to the extent Defendant seeks to suppress
the evidence seized when agents executed the various search
warrants authorized by the magistrate judge, the Court denies
Defendant's Motion to Suppress ( # 2 7 ) .
DEFENDANT'S MOTION TO CONTROVERT
In his Motion to Controvert, Defendant asserts SA McNall's
Affidavit supporting the Search Warrant contained misleading
statements about federal firearms laws and omitted material fact.s
pertinent to the magistrate judge's probable cause determination.
22 - OPINION AND ORDER
Thus, Defendant contends he is entitled to suppression of all of
the evidence seized pursuant to the search warrants issued on the
strength of SA McNallls Affidavit.
A. Standards
As noted, in order to challenge the facts in an affidavit
proffered in support of a search warrant, a defendant must make
"a substantial preliminary showing that (1) the affidavit
contains intentionally or recklessly false statements, and (2)
the affidavit purged of its falsities would not be sufficient to
support a finding of probable cause." United States v. Stanert,
762 F.2d 775, 780 (gth Cir. 1985) (citing Franks v. Delaware, 438
U.S. 154, 170 (1978)).
B. Discussion
The Court has considered all of Defendant's arguments that
SA McNall made allegedly false or misleading statements in his
Affidavit. In general, the Court concludes Defendant's arguments
fall far short of the required showing that the Affidavit
contained ''intentionally or recklessly false statements" and that
the Affidavit would not support a finding of probable cause in
the absence of such statements.
In addition, for purposes of Defendant's Motion to
Controvert, the Court concludes it need not resolve at this
stage of the proceedings Defendant's legal contention that
SA Zeisemerls affiliation with the ATF Portland, Oregon, office
23 - OPINION AND ORDER
renders SA Zeisemer a resident of the State of Oregon for
purposes of §§ 922 (a) (5) and 924 (a) (1) (D) and that SA McNall,
therefore, was bound to disclose in his Affidavit SA Zeisemerls
purported residence. The Court notes Defendant has not
identified any legal authority to establish the residency rule
that he advocates as a matter of law. Thus, Defendant has not
shown SA McNall proffered "intentionally or recklessly false
statementsu when he identified SA Zeisemer as a resident of the
State of Washington and failed to disclose his affiliation with
the ATF Portland, Oregon, office.
Accordingly, the Court denies Defendant's Motion to
Controvert (#33).
CONCLUSION
For these reasons, the Court DENIES Defendant's Motion to
Suppress Evidence Obtained During Execution of Search Warrant
(#27) and Defendant Is Motion to Controvert (#33) .
IT IS SO ORDERED.
dJ
DATED this3- day of August, 2006.
ANNA J. BROWN p%
United States District Judge
24 - OPINION AND ORDER.
