The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
FINAL RECOMMENDATION REGARDING MOTIONS TO SUPPRESS (Docket Nos. 32 & 37)
In a recommendation filed at Docket 87, I advised that defendants' Motion to Suppress be granted in part and denied in part. Defendant Lawson filed objections at Docket 93. Defendant Valcarcel filed objections at Docket No. 99. The government filed a Notice of No Objections at Docket No. 89. After careful review of the objections, I decline to modify the original recommendation. However, a few comments are in order.
Defendant Leonard Lawson objects to several findings of fact. First, Lawson objections to the finding of fact that members of the surveillance team "were cognizant that FedEx had a policy of delivering a package on Saturday. . . ." He argues that this finding is irrelevant and unsupported by the record. SA Clementson testified on direct examination that to the best of his knowledge FedEx uses a special kind of delivery tape on a box subject to a Saturday delivery. Thus, the policy of Saturday deliveries by FedEx was not irrelevant to the consideration of whether to abort the controlled delivery and delay delivery beyond its expected time of arrival. This was but one fact the agents had to consider but it was certainly not irrelevant.
Nate Clementson acted under cover as a FedEx driver to deliver the controlled package. The police log indicates that SA Clementson walked up to residence to deliver the package about 3:15 PM. Tr 1-141. The log further indicates that the alarm malfunctioned at 3:16 PM. Id. Although SA Clementson did not know that the trip wire which sent a signal to alert when the package had been opened had in fact malfunctioned, surveilling officers did make that observation.
Testimony at the suppression hearing addressed whether the officers should have called off the controlled delivery once they realized that the trip wire had malfunctioned. The Recommendation discussed why it was reasonable for the officers to decide not to abort the delivery of the package. See Recommendation, p.5. The testimony reflects that there was no feasible way for the officers to alert SA Clementson to the fact that the malfunction had occurred without endangering him or the integrity of the investigation. See for example, Tr 1-138.
Lawson argues that the agents should have sought a new search warrant rather than rely on the contingency warrant 3AN-10-1172SW. Lawson accepts the conditions imposed by State District Judge Paul Olson in the contingency or anticipatory warrant wherein the warrant indicates that at least one of the conditions imposed was to occur before the government could enter someone's home to retrieve the box. The language of the conditions contains the connector word "or" meaning that all of the events did not have to occur before the government could enter a home under that search warrant.
Lawson argues the agents needed to wait two hours before entering the residence. Under the contingency warrant the government would not have had to wait two hours if a change in tone had occurred indicating the box had been opened. Nor were they required to wait two hours if the electronic device failed to transmit. If Lawson's argument was correct the language in the warrant would have stated ". . . a change in tone indicating the box had been opened, or the electronic device fails to transmit and at least two hours have elapsed with no change indicating the box remains unopened inside of the residence." The magistrate judge disagrees with the defendant's reading of the contingencies in the search warrant.
The court declines to make additional findings of fact as suggested in Lawson's objections. It would have been premature for the officers to have represented to the issuing judge that there was no known nexus between the four people found at the residence on deck and the controlled delivery package.
Lawson objects to the finding of fact that group supervisor Richard Youngblood made the decision that the officers would enter the Early View residence and retrieve the parcel. Lawson claims that nobody knows who made that decision. Lawson relies on the surveillance log at Exhibit 3 as to when the officers entered the Early View residence. The log indicates that Valcarcel's vehicle was pulled over at 3:56 PM and that the entry team initiated entry at 3:59 PM. Those times do not comport with the evidence. Moreover, based on the evidence, it is likely that the log refers to the preparation of the entry team rather than their actual entry. After the traffic stop of Valcarcel the officers asked her who was in the residence because they wanted that information before an entry was made. Tr 1-160, 161.
SA Youngblood testified that he did not make the decision to enter the residence. Tr 3-44. SA Rambo said that he did not make the decision to go into 1831 Early View. Tr 3-185. However, SA Clementson testified that the decision to enter the residence and attempt to retrieve the parcel was made by "group supervisor Rich Youngblood." Tr 1-47. Officer Jeffrey Gregg thought that Rich Youngblood made the decision to enter the residence. Tr 1-164. It is undisputed that Youngblood was in charge of the investigation. Tr 3-85. The identity of the officer who made the decision is not a critical fact. The magistrate judge declines to modify this finding of fact disputed by Lawson in his objections. The lack of clarity in the evidence as to who made the call to enter the Early View residence to retrieve the evidence is not determinative. The fact that the officers did enter when they did without seeking a telephonic warrant was reasonable regardless of which officer actually instructed the agents to proceed.
The Recommendation states that the officers knocked on the door of the Early View residence about 15 minutes after the decision was made to enter the residence to retrieve the parcel. Lawson claims that the agents waited at most 6 minutes not 15 minutes from the time Valcarcel left the Early View residence. The time was closer to 15 minutes than 6 minutes. SA Clementson described the sequence of events as follows: After the vehicle [Valcarcel's] left the residence team members followed the vehicle and noted that the receivers were no longer picking up a good signal from that vehicle. The surveillance unit that remained at the residence was still picking up a strong signal. "[A]t that time, or a short while later," the decision was made to enter the residence and attempt to retrieve the parcel.
Tr 1-47. It took a short while for the entry team to assemble for the entry. They waited until after Valcarcel was stopped in her vehicle and the officers spoke with her. The sequence of events is not in dispute nor is the fact that the officers entered the Early View residence before two hours had elapsed after the transmitter device malfunctioned.
Lawson argues that the government created the exigency to enter the Early View residence to retrieve a package. The Recommendation rejected this argument. The failure of the triggering device of the transmitter to indicate when the package was opened was first discovered by surveilling officers as the package was being delivered. No evidence at the suppression hearing was offered as to why the triggering device failed, and there is certainly no evidence to suggest that it was an intentional act by the government.
Lawson's objections to the legal analysis merely perpetuate his arguments made at the evidentiary hearing. The analysis of these arguments in the ...