The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
INITIAL REPORT AND RECOMMENDATION REGARDING SUPPRESS EVIDENCE [Doc. 130] DEFENDANT'S MOTION TO
The defendant, Otagus Demond Coverson, has been charged with one count of attempted possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 8841(a)(1) and (b)(1)(A). In this motion filed at Docket 130, Coverson asks this Court to suppress all evidence regarding the monitored package and how it was opened at 4318 Vance Drive #4A on July 14, 2009. First, he challenges the authority of the postal inspector agents to apply for a warrant in this case, citing to 18 U.S.C. § 3061(a). Second, he argues that the beeper warrant SW 03-09-MJ-00 was not supported by probable cause and thus evidence derived from it should be suppressed. In his memorandum, he states that the subsequent warrants for Coverson's residence and vehicle should also be suppressed as fruits of the initial beeper warrant. Third, in his memorandum, he not only asserts that there isn't probable cause, he seeks to add evidence that the affidavit was misleading because it omitted certain facts, specifically he argues that the agent failed to provide relevant information regarding the informant's criminal history, which he says included a perjury conviction.
The Government opposes the motion. It argues that Coverson does not have the requisite privacy interest to challenge the monitoring of the package because he was not the sender or the addressee. It states that this case involved prior instances of mailing drug packages so it does fall within 18 U.S.C. § 3061(a). It states that the application presented adequate facts to support probable cause and that squabbling over what other facts could or should have been included is not warranted. It also objects to Coverson's contention that the search warrant was misleading.
An evidentiary hearing was held on February 2, 2011. The transcript from that hearing is located at Docket 175 (hereafter referred to as Tr.). At the hearing, Coverson testified for the purpose of establishing standing in the package. The Court indicated that it would consider the standing issues but that it wanted to proceed on the remaining issues given the upcoming trial date in March. The parties were given an opportunity to present oral argument and further evidence as to the propriety of holding a Franks hearing. After due consideration, the Court ruled that Coverson had made a substantial preliminary showing that the affiant in this case made a reckless omission to the affidavit supporting the beeper warrant and that such omission was material to the finding of probable cause. Postal Inspector Andrea Avery, the affiant for search warrant SW 03-09-MJ-00, proceeded to testify. Drug Enforcement Agency (DEA) Agent Nathaniel Clementson also testified.
On July 9, 2009, authorities in Oregon seized about nine kilograms of cocaine from a vehicle. Based on investigation, law enforcement agents learned that the cocaine was supposed to be delivered to Paul Nagan, who lived in the state of Washington. After a controlled drug delivery, Paul Nagan was arrested. Nagan cooperated with law enforcement, and from Nagan law enforcement learned that the drugs were ultimately intended for a person named "Blaze." Nagan informed them that Blaze had paid him to receive the cocaine and that Nagan was supposed to mail the cocaine to 4318 Vance Drive, Apartment A4 in Anchorage, Alaska. Nagan admitted that he had previously mailed packages of cocaine to "Blaze" at the same address. Law enforcement determined that "Blaze" was Coverson, through a third party unrelated to Nagan.
Law enforcement then orchestrated a third controlled delivery in order to investigate Coverson's involvement. Law enforcement agents in Anchorage, Alaska created a sham Express Mail Package through the U.S. Postal Service. The package contained nine kilograms of imitation cocaine and a tracking device that allowed the agents to monitor the package. (Doc. 136-2 at 2). The tracking device was placed in the package pursuant to the beeper warrant at issue in this motion, SW 03-09-MJ-00. A beeper warrant authorizes agents to place a tracking device inside the package and monitor when it is opened. When the tracking device signals that the package has been opened, the warrant allows the agents to get the tracking device back from wherever the package has been opened. (Tr. at 58; Doc. 136-2). The agents also created a mailing label. (Tr. at 61). The addressee on the label was Jay Jenkins. It was addressed to the Vance Drive address. (Doc. 136-2 at 9). The return address contained the name of a business in Seattle. (Doc. 136-2 at 9). It was randomly selected by the Postal Inspector. (Tr. at 61). Nagan placed a couple calls to Blaze to confirm mailing instructions and to inform Coverson about the name used as the addressee on the package. (Defense Ex. C). The package was never placed in the mail system since it was actually created by law enforcement agents. Instead, a Postal Inspector hand-delivered the package to Coverson on July 14, 2011. Coverson was in the residence and received the package. About ten minutes later the tracking device indicated the package had been opened. The agents entered the Vance Drive residence. Coverson attempted to flee but was detained. (Doc. 136-3 at 16; Tr. at 19). The package containing sham drugs is the basis for the attempt charge in this case.
As described above, the agents in this case obtained a beeper warrant to track the sham package, and pursuant to that warrant, they entered the Vance Drive home to retrieve the package from Coverson. The beeper warrant was granted on the basis of an affidavit from Postal Inspector Andrea Avery dated July 13, 2010 and located in the record at Docket 136-2. In that affidavit, Inspector Avery explained that the beeper warrant was going to be placed in an Express Mail package that had been prepared by law enforcement agents in Anchorage, Alaska and that it contained nine kilograms of imitation cocaine. Inspector Avery explained the seizure of nine kilograms of cocaine in Oregon from a vehicle. She explained how that seizure eventually resulted in the arrest of Nagan. She explained that Nagan cooperated with law enforcement and admitted that he was supposed to pick up the nine kilograms of cocaine but said that he was paid $5,000 to do so by a man named "Blaze." Inspector Avery's affidavit said that Nagan told law enforcement he was supposed to ship it to Alaska and that he had mailed drugs up to Alaska two other times. Nagan told law enforcement agents that both packages were sent to the same address but that he needed to call someone to verify the address. After making a phone call he told the agents that the nine kilograms of cocaine were supposed to be mailed to 4318 Vance Drive, #4A, Anchorage, AK 99508 and that the Vance Drive address was where he mailed the prior two packages.
Inspector Avery's typed affidavit stated that "Blaze" was later identified as Coverson. In a handwritten notation in the margin next to that sentence, Inspector Avery wrote that Nagan identified a photograph of Coverson to be "Blaze." That notation was initialed and dated by Avery. The affidavit went on to say that agents observed Coverson at the 4318 Vance Drive address at Apartment #4A earlier that day (July 13, 2010).
Inspector Avery also indicated that she reviewed Express Mail labels in order to see if there were in fact prior packages mailed to the Vance Drive address from the Tacoma/Seattle, Washington area. She explained in the affidavit that she found two such labels. One was dated April 14, 2009, weighed about 33 pounds, and was mailed from Seattle. The other package was dated May 27, 2009, weighed about 22 pounds, and was ...