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United States v. Underwood

United States Court of Appeals, Ninth Circuit

August 6, 2013

United States of America, Plaintiff-Appellant,
v.
John Michael Underwood, Defendant-Appellee.

Argued and Submitted December 6, 2012

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding D.C. No. 2:10-cr-00863-SVW-8

Mack E. Jenkins, Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellant.

Donald M. Ré, Los Angeles, California, for Defendant-Appellee.

Before Harry Pregerson, John T. Noonan, and Richard A. Paez, Circuit Judges.

SUMMARY [*]

Criminal Law

Affirming the district court's order suppressing drug-trafficking evidence found during a search of the defendant's home, the panel held that the state warrant that authorized the search was not supported by probable cause, and the good faith exception to the exclusionary rule was not met.

OPINION

PREGERSON, Circuit Judge

Appellee John Underwood was charged with conspiracy to possess and distribute controlled substances under 21 U.S.C. §§ 841 and 846, and possession with intent to distribute cocaine and ecstasy under 21 U.S.C. § 841. In district court Underwood moved to suppress drug trafficking evidence found during a search of his home, arguing that the state warrant that authorized the search lacked probable cause and the good faith exception to the exclusionary rule did not apply. District Judge Stephen Wilson granted Underwood's motion to suppress. The United States appeals. We have jurisdiction under 18 U.S.C. § 3731, and we affirm.

I. BACKGROUND

A. Federal Warrants & Underwood's Arrest

Between January and July 2010, the Drug Enforcement Administration ("DEA") and the Beverly Hills Police Department conducted a wiretap investigation into a suspected drug trafficking organization headed by Underwood's co-defendant, Jimmy Luong. The investigation revealed that Luong's drug trafficking organization ("Luong DTO") was likely distributing hundreds of thousands of pills of ecstasy per week.

In April 2010, agents followed Luong and Tony Barrera, another one of Underwood's co-defendants, from Barrera's residence to a Home Depot parking lot. There, agents observed Luong and Barrera meeting with Underwood and transferring two large unmarked crates from Underwood's vehicle to their own. Agents used surveillance to track the two crates to a Luong DTO stash house where the crates were subsequently seized and found to contain thousands of ecstasy pills.

On July 22, 2010 federal agents, assisted by local law enforcement including Los Angeles Police Department Detective James Kaiser, simultaneously executed federal arrest warrants for seventeen suspected co-conspirators of the Luong DTO and federal search warrants for fifteen residences, stash houses, and vehicles. DEA Agent Peter Johnson prepared the 102-page affidavit in support of the federal warrants. Underwood does not contest the affidavit or the execution of the federal warrants.

One of the federal search warrants was executed at a house believed to be Underwood's, on Cantrece Lane in Cerritos, California. When the officers arrived, they found only Underwood's mother, who told them Underwood actually lived on Mansa Drive in La Mirada, California. A search of the Cantrece Lane house did not reveal any evidence of drug trafficking.

Later that day, at the Mansa Drive house, agents arrested Underwood and conducted a protective sweep of the house. During that sweep, agents observed a clear zip-lock bag containing a personal-use amount of marijuana on a table in the living room. Following Underwood's refusal to consent to a full search of the house, DEA Agent Johnson instructed local officers to obtain a state search warrant for the Mansa Drive house as soon as possible. LAPD Detective Kaiser was assigned the task of securing the warrant. To assist Kaiser with the task, Johnson emailed Kaiser a summary of the case against Underwood based on the federal affidavit and an explanation of why Johnson believed evidence would be found at the Mansa Drive house.

B. State Affidavit & Search Warrant

Underwood challenges the affidavit supporting the state search warrant for the Mansa Drive house. In the state affidavit, Kaiser first listed the evidence to be seized, including: records of drug transactions, bank account records, supplier lists, phones, drugs such as ecstasy, drug paraphernalia, currency over $500, ...


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