Opinion
Criminal No. 04-264(1-3) (DWF/JSM).
November 23, 2004
Ann M. Anaya, Assistant United States Attorney, Minneapolis, MN, counsel for Plaintiff.
Barry V. Voss, Esq., Barry V. Voss, P.A., Minneapolis, MN; and Philip A. DeMassa, Esq., Philip A. DeMassa, APC, San Diego, CA, counsel for Defendant Javier Valenzuela Lopez.
Thomas H. Shiah, Esq., Law Offices of Thomas H. Shiah, Minneapolis, MN, counsel for Defendant Juan Valenzuela Lopez.
Joel C. Golden, Esq., Golden Law Office, San Diego, CA, counsel for Defendant Fausto Luna.
ORDER AND MEMORANDUM
This matter is before the Court upon Defendant's objections and the United States' objections to Magistrate Judge Janie S. Mayeron's Report and Recommendation dated October 28, 2004, recommending that: (1) Defendant Javier Valenzuela Lopez's ("Defendant Javier") motion to suppress all evidence obtained from unlawful searches and seizures be granted; (2) Defendant Javier's motion to suppress statements made by Defendant Javier be granted; (3) Defendant Juan Valenzuela Lopez's ("Defendant Juan") motion to suppress all evidence obtained from unlawful searches and seizures be granted; (4) Defendant Juan's motion to suppress statements made by Defendant Juan be denied; (5) Defendant Juan's motion to suppress any identifications of Defendant Juan be denied as moot based on the representations of the Government in its response to Defendant Juan's pretrial motions and representations of Defendant Juan's counsel at the hearing on the pretrial motions; (6) Defendant Fausto Luna's ("Defendant Luna") motion to suppress all physical evidence obtained from unlawful searches and seizures be granted; (7) Defendant Luna's motion to suppress all statements made by Defendant Luna be denied as moot based on the representations of the Government in its response to Defendant Luna's pretrial motions and representations of Defendant Luna's counsel at the hearing on the pretrial motions; (8) Defendant Luna's motion to suppress all identifications of Defendant Luna be denied as moot based on the representations of the Government in its response to Defendant Luna's pretrial motions and representations of Defendant Luna's counsel at the hearing on the pretrial motions; and (10) all Defendants' motions for a Franks hearing be denied.
This matter is also before the Court upon the Government's self-styled motion or letter request dated November 16, 2004, to re-open to produce Agent Zimmer, Agent Hartford, and Agent Bailey, who are three of the officers who made entry into the residence at 10290 Grand Valley Lane, Woodbury, Minnesota. Magistrate Judge Mayeron had previously denied a motion by the Government to re-open on this issue in an order filed on November 12, 2004 (Doc. No. 107). The Government's November 16, 2004, letter request is its third request to this Court, considering the request made to Magistrate Judge Mayeron, which was denied. The Defendants oppose the Government's motion to re-open Defendants' pretrial motions in all respects.
The Court has conducted a de novo review of the record, including a review of the arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c).
Based upon the de novo review of the record and all of the arguments and submissions of the parties and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1. Magistrate Judge Janie S. Mayeron's Report and Recommendation dated October 28, 2004 (Doc. No. 93), is ADOPTED AS MODIFIED. Specifically, the Court adopts all recommendations except those recommending that the Court suppress the 10290 Grand Valley Lane, Woodbury, Minnesota, warrant because Magistrate Judge Mayeron concluded that, "this Court has no evidence from which it can determine whether the officers waited long enough to insure that the occupants had time to hear the knock and answer the door, before the officers could conclude they were constructively denied entrance."
2. The Government's Motion to Re-open the Defendants' Pretrial Motions (Doc. No. 96) is PROVISIONALLY GRANTED on the sole issue of the 10290 Grand Valley Lane, Woodbury, Minnesota, search warrant. It is the Court's intention to take testimony on the knock and announce issue on Monday, November 29, 2004, at 9:00 a.m., prior to trial, and a pretrial in the above-entitled matter. The testimony will be limited to those officers, if called by the Government, who executed the search warrant at the 10290 Grand Valley Lane, Woodbury, Minnesota, premises on May 24, 2004. The testimony of Agent Robert Thomasser, Sandra Medina, and Defendant Fausto Luna shall be deemed part of the record.
The Court has granted the Government's first motion to take additional testimony provided it complies with the following directives of the Court:
a. The Government shall be responsible for all reasonable attorney fees and costs associated with the hearing on August 23, 2004, as well as the reasonable costs and attorney fees that were incurred as a result of the response to the untimely second motion or letter request to re-open delivered to the Court on November 16, 2004; and
b. That any reports by Agents Zimmer, Hartford, and Bailey be provided to defense counsel and the Court by 12:00 noon on Wednesday, November 24, 2004.
3. The Government's second motion and letter request to re-open, delivered to the Court on November 16, 2004, is DENIED AS MOOT, given the Court's ruling in paragraph 2.
4. The Government's Motion to Re-open the Defendants' Pretrial Motions on the issue of the Franks hearing (Doc. No. 96) is DENIED.
5. Defendant Javier Valenzuela Lopez's Motion to Suppress All Evidence Obtained from Unlawful Searches and Seizures (Doc. No. 52) is RESERVED pending completion of the pretrial motion where herein is presently set for November 29, 2004, at 9:00 a.m.
6. Defendant Javier Valenzuela Lopez's Motion to Suppress Statements Made by Defendant (Doc. No. 53) is GRANTED.
7. Defendant Juan Valenzuela Lopez's Motion to Suppress All Evidence Obtained from Unlawful Searches and Seizures (Doc. No. 39) is RESERVED pending completion of the pretrial motion where herein is presently set for November 29, 2004, at 9:00 a.m.
8. Defendant Juan Valenzuela Lopez's Motion to Suppress Statements Made by Defendant (Doc. No. 36) is DENIED.
9. Defendant Juan Valenzuela Lopez's Motion to Suppress Any Identifications of Defendant (Doc. No. 38) is DENIED as moot based on the representations of the Government in its response to Defendant's pretrial motions and representations of Defendant's counsel at the hearing on the pretrial motions.
10. Defendant Fausto Luna's Motion to Suppress All Physical Evidence Obtained from Unlawful Searches and Seizures (Doc. No. 57) is RESERVED pending completion of the pretrial motion where herein is presently set for November 29, 2004, at 9:00 a.m.
11. Defendant Fausto Luna's Motion to Suppress All Statements Made by Defendant (Doc. No. 58) is DENIED as moot based on the representations of the Government in its response to Defendant's pretrial motions and representations of Defendant's counsel at the hearing on the pretrial motions.
12. Defendant Fausto Luna's Motion to Suppress All Identifications of Defendant (Doc. No. 59) is DENIED as moot based on the representations of the Government in its response to Defendant's pretrial motions and representations of Defendant's counsel at the hearing on the pretrial motions.
13. All Defendants' motions for a Franks hearing (Doc. Nos. 78, 81 and 88) are DENIED.
MEMORANDUM
IntroductionThis case has a long and unnecessarily complicated procedural history, as noted by Magistrate Judge Janie S. Mayeron in both her Report and Recommendation ("RR") and her Order denying the Government's request to re-open Defendants' pretrial suppression hearing. While the Court does not agree with defense counsel that the case is beset with chaos, it is unfortunately beset with procedural anomalies. Defense counsel has suggested that, deliberately or otherwise, the prosecutor sent its November 16, 2004, letter requesting the taking of additional testimony by United States mail, while at the same time failing to e-file the letter. Whether deliberate or not, if in fact the Government's November 16, 2004, letter was not faxed, with or without a preceding or follow-up phone call, to all defense counsel, this omission exacerbates an already unfortunate procedural history. The Government's actions in this regard are not only anomalous, but they cast a cloud over the Government's prosecution of this case.
In any event, the Court's decision is the same with or without consideration of the Government's November 16, 2004, letter. The issue before this Court is not whether Magistrate Judge Mayeron made the correct decision with respect to the knock and announce issue, because based upon the record before her, she did. Rather, this Court must determine the appropriate remedy given the procedural transgressions of the Government in this case.
On July 30, 2004, Defendant Javier Valenzuela Lopez ("Defendant Javier") filed a Motion to Suppress Any Evidence Obtained as a Result of Any Illegal Searches (Doc. No. 52). In this motion, Defendant Javier indicated that he was challenging the search of 10290 Grand Valley Lane, Woodbury, Minnesota, including any knock, notice, and entry. On the same date, Defendant Fausto Luna ("Defendant Luna") filed a Motion to Suppress All Physical Evidence (Doc. No. 57), in which he stated that the search warrant for 10290 Grand Valley Lane, Woodbury, Minnesota, was unlawful on grounds that officers did not comply with the knock and notice requirements. Defendant Juan Valenzuela Lopez ("Defendant Juan") also filed a Motion to Suppress All Evidence Obtained from Unlawful Searches and Seizures (Doc. No. 39), however, that motion did not specifically mention that he was challenging the knock and announce procedures.
It is now apparent that the Defendants posit two constitutional arguments on the knock and announce issue. First, consistent with the testimony given by Sandra Medina and Defendant Luna on August 23, 2004, Defendants allege that there was no knock, no door bell heard, and no announce. Second, and alternatively, whether or not there was a knock and announce, as noted by Magistrate Judge Mayeron on page 28 of her RR, "this Court has no evidence from which it can determine whether the officers waited long enough to insure that the occupants had time to hear the knock and answer the door, before the officers could conclude they were constructively denied entrance."
Defendants addressed both arguments in their briefs, namely, that there was no evidence that either a knock or announce was made or that the officers waited a reasonable amount of time before entering the residence. Interestingly, the only witness that the Government called at the suppression hearing on August 23, 2004, was the case agent, Agent Robert Thomasser. Agent Thomasser is a sergeant with the St. Paul Police Department assigned to the Drug Enforcement Administration State and Local Task Force in Minneapolis who had little, if any, first-hand knowledge on the issue that is now before the Court. Over the objection of Mr. DeMassa on hearsay and foundational grounds, the agent testified on the knock and announce issue. The constitutional paradox, of course, is that Agent Thomasser's testimony came from the very witness that the Defendants have successfully used to suppress all physical evidence from the search of 10290 Grand Valley Lane, Woodbury, Minnesota. In addition, Agent Thomasser's testimony is that which defense counsel strenuously objected to because Thomasser was the wrong witness with little or no first-hand information.
In their September 17, 2004, brief in support of their motion to suppress, Defendants again moved the Court to strike the testimony of Agent Thomasser, which was denied by Magistrate Judge Mayeron. Magistrate Judge Mayeron correctly concluded that such constitutional decisions cannot be predicated upon the conclusory assertions of an agent with no first-hand knowledge. The written report of Agent Thomasser is also silent on the crucial issue of knock and announce, which, if anything, was contrary to the position he was taking at the hearing in August 2004. Either way, the Government left Magistrate Judge Mayeron with only a conclusory hearsay statement upon which to rely. No request was made by the Government to continue the case in order to call one or more of the officers who actually executed the search warrant in question to testify.
The Court feels compelled to observe that counsel in federal court and these pretrial suppression hearing scenarios oftentimes assert that it is the nature of the so-called federal court culture that gives rise to having the wrong witnesses testifying on perhaps vaguely defined constitutional issues before the Magistrate on the date of the hearing. The Court respectfully rejects the notion that events such as those that occurred on August 23, 2004 — where the parties were ill prepared to address the most important issue in the case — are inevitable. The Court also respectfully rejects the Government's suggestion that this case and the federal court is in need of "a more fluid approach to motions practice." Procedural fluidity, or the lack thereof, is not the culprit in this case. Rather, the record before this Court and Magistrate Judge Mayeron establishes, for whatever reasons, a lack of preparation, appropriate diligence and communication to the task.
Before, during, and immediately after the August 23, 2004, hearing before Magistrate Judge Mayeron, there was no request on the part of the Government for a continuance, no request for additional testimony, and no request for any clarification of the constitutional issues in dispute. In the absence of any such request, Magistrate Judge Mayeron correctly met her obligation, which was to go forward with the hearing, take the testimony, and make a ruling.
Defendants submitted their brief on or about September 17, 2004. At least one of the Defendants, Defendant Javier, continued to object that Agent Thomasser's testimony was inadmissible and should not be considered in the Defendants' motion to suppress the search. In fact, the Defendants moved to strike his testimony in their memoranda in support of their motions to suppress the search. The Government apparently decided to "roll the dice" with Agent Thomasser's testimony, because no request was made to present additional testimony at that time.
28 U.S.C. § 636(b)(1) provides that, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." The Supreme Court, citing extensive legislative history, determined that this language permitted, but did not require, the district court to rehear evidence before adopting or rejecting a magistrate's recommendation as to a dispositive matter. See United States v. Wipf, No. 03-111, 2003 WL 22283380 (D. Minn. Sept. 25, 2003) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)). The Court acknowledges that it has the discretion to do as Magistrate Judge Mayeron did on the record she was left with, that is to deny the taking of additional testimony, much like Judge Tunheim did in United States v. Wipf, supra.
However, on the specific facts of this case, the Court has concluded that while it is clear that the Government failed to present competent testimony regarding the knock and announce issue at the suppression hearing on August 23, 2004, and then failed to make a request in a timely fashion to re-open the matter, that the proper remedy is to hold the Government financially responsible for the reasonable fees and costs associated with the Government's failures. Therefore, the only procedural aspect of this case where the Court has respectfully modified the decision of the Magistrate is the choice of remedy.
There is no doubt that the Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in the persons, houses, papers and effects, against unreasonable searches and seizures." The reasonableness of a search may depend, in part, on whether law enforcement officers knocked and announced their presence before entering. As the United States Supreme Court observed in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995):
If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.
As the parties are painfully aware, the three officers who entered the home with the warrant have never testified. The Court is unaware if any reports they have done have been disclosed to defense counsel. The dearth of such evidence makes it nearly impossible to conduct the Fourth Amendment's reasonableness inquiry under the knock and announce principle. Admittedly, the burden for that failure must fall on the Government since the Government has the burden of proof. However, the Court concludes that the appropriate remedy is holding the Government responsible for the reasonable costs associated with the delays and extra hearings, not the exclusion of the evidence, when the required Fourth Amendment inquiry has not been made through no fault of Magistrate Judge Mayeron.
The exclusionary rule is a judicially created remedy designed to deter future Fourth Amendment violations. If applying the exclusionary rule will not appreciably deter future Fourth Amendment violations, the rule does not apply. See United States v. Scroggins, 361 F. 3d 1075 (8th Cir. 2004) citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). "As with any remedial device, the rule's application has been restricted to those instances where its remedial objectives are thought most efficaciously served." Arizona v. Evans, 514 U.S. 1, 11, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995). The rule's purpose is not designed to punish a prosecutor for failing to request a continuance or failure to present a witness in a timely fashion unless there has been a pattern of violations when another less drastic remedy is available. Penalizing the prosecutor in the absence of law enforcement illegality cannot logically contribute to the deterrence of Fourth Amendment violations.
For these reasons, the Court has granted the Government's request to re-open the suppression hearing on the limited issue surrounding whether law enforcement officers complied with the knock and announce requirement of the Fourth Amendment, whether that is knocking and announcing at all, or whether the officers waited long enough after knocking, if they did knock, before entering the home at 10290 Grand Valley Lane, Woodbury, Minnesota. That will be the sole focus of the hearing. The Court will deem as part of the record the testimony of Ms. Medina and Defendant Luna, as well as Agent Robert Thomasser, absent further ruling of the Court. No additional testimony will be presented. In the context of the Court's decision, it remains to be seen whether it is fair or realistic for the parties to proceed at 9:00 a.m. on Monday, November 29, 2004, to take additional testimony, followed by the trial. The Court notes that trial documents were due on Monday, November 22, 2004. No documents have been filed as of the time and date of this order. If there are scheduling issues to be resolved once the parties receive the Court's order, Calendar Clerk Lowell Lindquist can be called at 651-848-1296.
For the reasons stated above, the Court has adopted, as modified, Magistrate Judge Janie S. Mayeron's RR dated October 28, 2004.