The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTIONS TO SUPPRESS
Defendant Leonard Lawson moves to suppress all evidence secured as a result of police searches of his residence and evidence derived from his statements to the police while he was interrogated. Docket 32. The motion also requests a Franks hearing.*fn1 Co-defendant Liza Young Valcarcel also known as Liza Young filed a separate motion to suppress evidence in statements seized on July 14, 2010. Docket 37. The government filed a consolidated opposition to the motions to suppress and requests for a Franks hearing at Docket 65. An evidentiary hearing on the motions to suppress was conducted on January 19, 20, 24 and February 14, 2011. No separate Franks hearing was conducted. For reasons stated below the magistrate judge finds that the officers exceeded the scope of the lawful protective search and took photographs inside the residence preceding the search warrant, and recommends that the motions to suppress be granted in part and denied in part.
On July 14, 2010, Michael Christenson, Senior Security Specialists, for FedEx in Anchorage, Alaska, was alerted by an individual working at Relo 3 that they had received a suspicious package. Mr. Christenson went to the location and viewed the box. He noted a number of things different from the usual shipment.
He looked at the shipping label and saw that it was shipped from a Kinko's priority overnight for a lot of cash, and the box came out of Oakland, California, a source city for narcotics sent to Alaska. The sending address for the package was 935 21st Street, Oakland, California. The delivery address was 7100 Stella Place No. 2. The airway bill contained a number (8714 4934 0866) that could be used for tracking the shipment. The parcel had excessive tape and every fold in the box was sealed. He put the box through an x-ray machine and observed that it contained two rectangular objects containing two bags or baggies. Based on his experience as a former police officer and past dealings with boxes shipped through FedEx he suspected the box contained narcotics.
Consistent with company policy and the contract with the shipper giving FedEx the right to open a box at any time while it is in their possession he photographed the box as he opened it. Inside he discovered two rectangular ceramic items with two wicks protruding. It seemed strange to him for someone to have paid about $106 to ship candles priority to Alaska.
Mr. Christenson decided to open the ceramic object and while doing so a side broke off rendering visible two white bags containing white powder. At about 8:20 AM he called the Drug Enforcement Agency (DEA) to come over and assist. He contacted Jeffrey Gregg a member of the Drug Enforcement Task Force at the Anchorage Airport.
Nathaniel Clementson, a Special Agent for DEA was contacted by Officer Gregg and the officers met to formulate a plan for a controlled delivery of the package. The officers utilized a field testing kit on the suspected cocaine for which it tested positive.
Gregg applied for and obtained search warrant 3AN-S10-1173 SW authorizing the opening of the black ceramic container. This warrant was issued about 12:54 PM on July 14, 2010. The officers obtained contingency warrant 3ANS10-1172 SW allowing the officers to enter a premise and retrieve the package. The contingency warrant authorized the officers to go in and retrieve the package and nothing else. The contingency warrant sets forth circumstances that must happen in order for the officers to enter the premises and retrieve their box.
The box was repackaged with sham controlled substances and a small amount of contraband. It was then wired with an electronic device that would alert the officers when the package was opened. The package was equipped with an electronic monitoring device that emits a tone indicating the parcel remains unopened and emits a separate tone once the box is opened.
On July 14, 2010 SA Clementson portrayed a FedEx driver. About ten people were involved in the execution delivery. SA Clementson drove over to Stella Place after receiving word that the surveillance team members were in place. He parked down the street and proceeded to the residence. He had with him his cell phone with an open line to members on the surveillance team who could hear sounds from or near Clementson over the cell phone. The cell phone was on mute so the transmissions to Clementson would not come over the cell phone. Clementson did not have the capability of communicating with other members of the team except by speaking into the microphone. Surveillance team members had radios to communicate with one another.
The signal emitted by the package indicated where the package was located within a short proximity to it and by a change in beeps whether the package had been opened. About 3:16 PM the officers realized that the mechanism indicating the opening of the package had malfunctioned while in the possession of SA Clementson. While SA Clementson proceeded to the residence to deliver the package, the trip wire in the package malfunctioned when the circuit was broken falsely indicating that the box had been opened. Members of the surveillance team realized this had happened but decided they were unable to abort the delivery without risking that someone would discover the undercover operation and/or endanger SA Clementson. They were cognizant that FedEx had a policy of delivering the package on Saturday because the extra mailing cost had been paid.
SA Clementson knocked on the door and heard some voices. After about 30 seconds an adult male and a child approached him from around the side of the residence. No one actually answered the door. The individual greeted the undercover agent and told him that he been expecting a parcel.
The male retrieved a cell phone and placed a telephone call while asking the FedEx agent if there was anything he had to sign. The male communicated to someone over the cell phone that the parcel had arrived. The signature given by the recipient was illegible. After viewing the illegible signature SA Clementson asked the male what name he had signed. The response was "Anderson." SA Clementson then left the residence and changed out of the FedEx uniform so that he could join in the surveillance.
Once the package was initially delivered the officers determined they would wait about 15 minutes before retrieving it.*fn2 Within that time frame a vehicle which had been seen by surveillance earlier in the day at the Stella residence was observed coming back to the residence, pulling in and parking in the driveway. It was a white Cadillac Escalade registered to Ms. Valcarcel. Officer Gregg had seen her in that vehicle earlier that day.
DEA Special Agent Rikk Rambo watched the female get out of the Cadillac Escalade and walk into the house. The individual was later recognized by him to be Liza Valcarcel. Nothing in their investigation indicated that Varcarcel lived at the Stella Place residence. She was observed getting out of the vehicle going into the garage and within two or three minutes coming out of the residence and getting into her vehicle carrying the FedEx parcel. The vehicle then departed. The monitoring tone remained with the vehicle as it disappeared from the residence. Surveillance followed Valcarcel to 1831 Early View Drive.
After the Cadillac left the Early View residence several officers followed the vehicle and realized that their receivers were no longer picking up a good signal from that vehicle. However, surveillance units at the residence were still picking up a strong signal. The officers concluded that the package was still at the Early View residence.
Valcarcel's vehicle left Early View Drive and stopped at a red light on or near Muldoon Road. An Anchorage Police Officer initiated a "felony stop" on the vehicle and directed Valcarcel to step out of the vehicle. Gregg considered her to be under arrest when she was stopped and escorted out of the vehicle. Tr 1-165. She was arrested for attempting to possess drugs. She was placed in handcuffs and into an APD vehicle. Officers pulled Valcarcel's vehicle into a church parking lot nearby.
Officer Gregg got out and made contact with her. Gregg knew that the officers were preparing to enter the Early View Drive to retrieve the package and he asked Valcarcel who was in that house. Valcarcel told Gregg that there were two elderly ladies there. At that point Gregg advised Valcarcel of her Miranda rights using a DEA-13 Rights Advisement Card. She acknowledged understanding her rights and agreed to talk to the officers. Gregg explained to her that they knew what was in the box and told her that these matters were time sensitive. When he asked her what was going on with the box she replied: "You guys know what's in the box, It is all mine. Do what you got to do." Tr 1-163.
Gregg made arrangements to have Valcarcel transported to the DEA office as well as her vehicle. Valcarcel was processed, fingerprinted, photographed and queried about biographical data. The vehicle was not impounded. No search of the vehicle occurred at the traffic stop. Docket 77, p.44. Search Warrant 3AN10-1168SW was issued about 7:50 PM for the Cadillac Escalade. The affidavit did not disclose the malfunctioning of the device in the package. The return indicates nothing seized and that a copy of the warrant was left with Valcarcel. Gregg and SA Youngblood proceeded to 1831 Early View. Valcarcel was subsequently interrogated at the DEA office. The interview began about 7:20 PM. . At the interview of Valcarcel the officers wore civilian clothes. Valcarcel was not in handcuffs nor physically restrained. She was not threatened or promised anything in exchange for her speaking with the officers. The conversations occurred in a normal tone. Agent Rambo introduced himself and informed her why she was being arrested and had been taken to the DEA office. Before the officers started asking her questions she was reminded that she had been advised of her Miranda rights at the scene.
At the evidentiary hearing Valcarcel testified that she had not been advised of her Miranda rights during the interview. On cross examination she said she did not "hear" her Miranda rights read to her. I accept Officer Gregg's testimony that the Miranda rights were read to Valcarcel She acknowledged that she understood her rights and the officers began talking about the events of the day. At one point she asked "Do I need a lawyer?" The officers gave no verbal response. She did not specifically request an attorney. Docket 76, T-9.
During her interview Valcarcel stated she communicated with her source via cell phone. Document D, Evidentiary Hearing. Officer Gregg asked Valcarcel if she could show him the phone number of the person who sent the box. She agreed. She voluntarily let Officer Gregg look through the phone screens on her cell phone. Docket 76, T.13.
Group supervisor Richard Youngblood, on scene supervisor, made the decision that the officers would enter the Early View residence and attempt to retrieve the parcel. Without the sound alarm functioning to indicate the opening of the package, the officers did not know whether the package inside the Early View residence was likely to be destroyed or hidden. The officers waited about 15 minutes and knocked on the door of the Early View residence. Receiving no response task force officer Eric Spitzes breached the door and about 3:59 PM the officers entered the residence. The officers saw four individuals standing on a back deck. Present on the deck was (1) Ola Lawson, mother to Leonard and Harold Lawson, and (2) Linda Chaney, Leonard Lawson's aunt, (3)Leonard Lawson and (4) Harold Lawson. The deck had a sliding glass door. Other agents had gone around to the back of the residence and SA Clementson called for some of them to come and assist. The four individuals on the deck were handcuffed, submitted to pat-down searches for weapons and asked for their identifications.
Officers conducted an initial protective sweep inside the residence. looking for people, animals, and hazards such as an open gas fire, chemicals, meth lab, etc., that might be a threat to the officers. The officers also performed a secondary sweep which was conducted for officer safety that included looking inside closets for hidden persons, and checking a crawl space. SA Clementson walked into the master bedroom and noticed the package that he had delivered earlier that day. He could easily see the air bill. The package had not been opened. During his protective sweep he stuck his head in the bathroom that adjoined two rooms and observed Ziplock bags on a sink.
The officers wore boots and made noise while conducting their protective sweeps. Some of the individuals wore body armor and weapons and the hard sole boots made noise on the wooden floors. SA Clementson went downstairs in the residence to a large open area that looked like a recording studio. He observed a desk top computer with a flat screen monitor. The computer screen had a screen saver. Tr 2-48. He testified that he saw on the flat screen what appeared to be a FedEx web page useful for tracking a FedEx package. SA Clementson admitted that it was possible that he had moved the mouse to turn the screen on but he claims he did not do so intentionally. In his words he "may have jarred [it] while [he] was walking by, but again I don't recall that." Tr 1-72. SA Clementson observed a black ceramic candle holder on a ledge behind the computer. Tr 1-62.
After SA Clementson conducted a protective sweep of the downstairs he went to the garage and "took a brief look around there." Tr 1-65. He observed a FedEx box that had a Saturday delivery tape around the box. SA Clementson relayed the information of his findings to Anchorage Police Officer Jack Carson.
Ola Lawson was escorted to a couch to sit on in the living area. She heard people moving on the stairwell and she couldn't tell whether it was people coming into the house or going down into the lower part of it. Her handcuffs had been removed before she used the restroom adjacent to the master bedroom. While she was in the bathroom she heard voices coming from the bedroom. Based on the sounds she heard she concluded that personal items were being moved about. Her conclusion is speculation. The two females were eventually told they were free to leave the residence and allowed to take a taxi back to their hotel.
Harold Lawson had recently come to Anchorage for a visit. He was staying at his brother's residence at 1831 Early View. He testified that he was familiar with the house except for the master bedroom which he did not enter. He testified that he was told about the shotgun and that it was available for bear protection.
The studio contained a cabinet full of CDs. Harold Lawson testified that while he was held inside the residence he could hear a person on or persons running up and down the stairs and shuffling throughout the house. He testified that he heard what sounded like CDs as they were hitting the floor. This is speculation. Photos taken by a drug team member show the CDs still in place until execution of the search warrant for 1831 Early View. Harold Lawson denied receiving any documents from the police relating to the execution of a search warrant. After he returned from the DEA office the next day he picked up CDs from the floor.
While the officers waited several hours for the arrival of the search warrant for that residence they did move about the home. While waiting for the search warrant the officers used the restroom, removed their body armor, and took turns maintaining surveillance on the exterior of the residence. The officers were informed of the existence of the warrant about 7:59 PM on July 14, 2010.
According to Officer Gregg's affidavit for the Early View residence search warrant the entry team entered that residence at about 3:59 PM. Exhibit C, p.5, Docket 32. The affidavit includes observations made by agents who participated in clearing and securing the residence including the following information:
"The FedEx parcel was removed from the master bedroom. In the garage another FedEx parcel with the same dimensions was observed; that parcel had been opened and the shipping label removed. In the downstairs recreation room a computer screen was observed displaying a web page for FedEx tracking. In the same room a black ceramic appearing identical to the controlled delivery package without the wax contents. Sandwich bags which are frequently used as packing material were observed in the master bedroom. A shotgun was observed in the corner of the master bedroom. Suitcases bearing luggage tags from California were observed in the downstairs room. The FedEx parcel which was the subject of the controlled delivery that had been sent from California. Marijuana paraphernalia such as pipes with residue and burnt marijuana cigarettes were observed in the downstairs room."
After receiving notice of the issuance of the search warrant officers took the "pre-photographs." Tr 1-182. Officers also photographed the evidence seized, and then took photographs once the search was concluded. Tr 1-177. Photographs were taken by members of the National Guard using their own photographic equipment. Tr 3-102.
Officer Carson asked other officers at the residence to tell him about observations that were made inside during the protective sweeps. Then he conveyed that information to Officer Gregg for preparation of a search warrant affidavit. Officer Gregg received this information about 30 minutes after the initial stop of Ms. Valcarcel's vehicle. Tr 1-188.
Gregg asked APD Officer Jack Carson if he would assist him in getting a search warrant for the residence at 1831 Early view Drive. Officer Carson did not have access to Gregg's original affidavit and was going to be on overtime so he declined.
Officer Gregg then prepared an affidavit for the search warrant using information provided by Officer Carson including matters that there was a box in the garage with dimensions identical to the controlled delivery parcel (Tr 1-191). Gregg was informed that the parcel that had been delivered by Clementson that day was located in the master bedroom upstairs. Gregg was told by another officer that there was baggage downstairs that had luggage tags indicating that they came from California. The officer considered that significant because the FedEx parcel had been shipped from California.
Officer Gregg's affidavit did not state that the beeper had malfunctioned. Gregg explained at the evidentiary hearing that it did not occur to him to include that information. Gregg's affidavit includes the observations of the FedEx tracking screen, the fact that the controlled delivery box was recovered inside the residence, the ceramic container that was observed in the residence, the FedEx box with similar dimensions, the fact that there were suitcases with California bag tags, the sandwich baggies observed in the master bedroom, and marijuana paraphernalia observed in the residence as well as a shotgun behind a door. Gregg considered the fact that the box had been taken to the residence at Early View Drive significant to the issuance of a warrant; he considered the condition of the box being unopened as not significant. Gregg's affidavit did not affirmatively represent that the package alarm had gone off prematurely. The malfunction was a change in tone resulting from a failure to transmit the non-alert tone. Tr 3-20.
Detective Monique Doll proceeded to the magistrate's office to obtain the search warrant but Magistrate Comfort would not issue the warrant because the affidavit contained a description of Gregg's training and experience and not Doll's. Officer Gregg then had to leave the Tudor office located between Lake Otis and the Seward Highway near the Airport and go to the magistrate's office downtown to obtain the search warrant. Because of the sequence of events necessary in obtaining the last search warrant, I conclude that the officers timely applied for and obtained a search warrant for the 1831 residence. Detective Doll took the search warrant to the residence.
Officer Gregg testified that a copy of the warrant was provided to Harold Lawson. Tr 1-199. Harold Lawson is Leonard Lawson's brother who was staying at the residence. The search warrant return also indicates a copy was given to Harold Lawson. Exhibit C, p.12 to Docket 32-4. On cross-examination Gregg stated that he believed he gave Harold Lawson a copy of the search warrant at the DEA building. Tr 2-58. Harold Lawson denied receiving any document relating to the search warrants.
There are two interview rooms at the DEA office. Neither Valcarcel nor Lawson were free to leave when they were being questioned at the DEA headquarters. At the DEA office Lawson was advised of his rights. He indicated that he understood his rights and agreed to talk to the officers. He stated the shotgun belonged to Ms. Valcarcel, but his fingerprints might be on it. There were no threats, intimidations or promises made to Lawson. The interview with Lawson appeared very amicable and he was cooperative. Lawson did not appear to be angry. There was no swearing or shouting. The interview with Lawson lasted about and hour and 45 minutes. Lawson admitted involvement in drug trafficking activity outside the events of the day.
Officer Gregg wrote in his report that they initiated the interview with Liza Valcarcel about 8:20 PM at the DEA office. The interview took place in a room with a table and chairs at the DEA headquarters on Tudor Road. No weapons were brandished or threats made to her in exchange for her statements to the officers. The atmosphere was amicable and SA Rambo described Ms. Valcarcel as very sedate.
Officer Gregg reminded Valcarcel that she had been Mirandized. She tried to take sole responsibility for the drugs that had been seized. No promises were made to her for her cooperation. She was told that people who cooperate with DEA and with the government stand a better chance at any sentencing. She never indicated she wanted an attorney present nor did she appear to be visibly upset. Essentially, she admitted her knowledge and involvement in the incident. Her interview lasted about 45 minutes. SA Rambo concluded that her statements about the shotgun belonging to her lacked credibility because she knew very little about the type of ...