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United States v. Fletcher

United States District Court, D. Massachusetts

November 20, 2017

UNITED STATES OF AMERICA
v.
TIMOTHY FLETCHER

          MEMORANDUM AND ORDER ON DEFENDANT' S MOTION TO SUPPRESS AND MOTION FOR A FRANKS HEARING

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.

         Defendant Timothy Fletcher is charged with possession of cocaine and cocaine base with intent to distribute and with being a felon in possession of firearms and ammunition. He seeks to suppress incriminating items seized from his person, from a vehicle in which he was a passenger, and from a rental storage locker that he shared with his mother. The seizures were made pursuant to search warrants issued on April 2, 2015, by Massachusetts District Court Judge John M. Julian (the Second Warrant), and on April 3, 2015, by Barnstable Clerk-Magistrate Charles J. Ardito III (the Third Warrant).[1] The two warrants at issue grew out of an earlier warrant (the First Warrant) authorizing the installation of a GPS tracking device on a Ford Exhibition owned by Brooke Cotell (who is alleged to have aided and abetted Fletcher in conducting his drug dealing).[2] The Second Warrant was directed to the persons of Fletcher and Cotell, as well as her Ford Exhibition, and to Room 202 of the Clarion Hotel in Yarmouth, Massachusetts, which had been rented by Fletcher for himself and Cotell. The Third Warrant was directed to locker Unit #26 at a Simple Storage facility in Hyannis, Massachusetts.

         Fletcher challenges the Second and Third Warrants on four grounds:

(1) that the Third Warrant was tainted by illegal searches of the storage facility and the locker unit conducted prior to the police obtaining a warrant;
(2) that affidavits supporting the Second and Third Warrants failed to demonstrate probable cause to believe that incriminating evidence would be found in Fletcher's actual or constructive possession; (3) that police exceeded the scope of the Third Warrant by conducting a “general” seizure of evidence from the storage locker; and (4) that the officer-affiants (Yarmouth Police Detective Christopher Kent, the author of the Second Warrant affidavit, and Barnstable Police Detective Lieutenant Sean Balcom, the author of the Third Warrant affidavit) made intentionally false or reckless statements or omissions in the affidavits supporting the issuance of the Second and Third Warrants.[3]

         The arguments for suppressing the evidence seized from Fletcher's storage locker pursuant to the Third Warrant are framed on the following propositions: (1) that Fletcher has standing to challenge the entry of Simple Storage by police as well as the search of the locker on the basis of his shared rental of the locker unit with his mother[4]; (2) that the affidavit in support of the Second (and by incorporation the Third) Warrant is defective because Detective Kent (the author of the Second Warrant affidavit) never met face-to-face with Confidential Informant 2 (CI-2), but rather relied on another officer's (Barnstable Police Detective Colin Kelley) assurance of CI-2's credibility[5]; (3) that police made unlawful warrantless entries of the storage facility and the locker unit prior to obtaining the Third Warrant; and (4) that the seizures from the locker unit “grossly exceeded” what was authorized by the Third Warrant.[6]

         These arguments, as will be shown, fall under the weight of the documented facts. Confidential Informant 1 (CI-1), who linked Fletcher's drug dealing to the Simple Storage locker by describing to a “T” the layout of the interior of the facility, the specific location of the locker unit, and the manner in which it was singularly secured with a U-Haul padlock, spoke clearly from personal knowledge. See Spinelli v. United States, 393 U.S. 410, 425 (1969) (White, J., concurring), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (2012) (even where the basis of the informant's knowledge is unexplained, the detail and precision of the information “may sometimes imply that the informant himself has observed the facts”). The inference is unshakeable in the case of CI-2, who testified to being present in Fletcher's hotel room while Fletcher cooked a batch of cocaine base, and who also went along for the ride when Fletcher was driven by one of his female runners to a drug sale. These recitals presumptively satisfy the basis-of-knowledge prong of the Aguilar-Spinelli test to the extent that test is at all relevant. See United States v. Del Toro Soto, 676 F.2d 13, 19-20 (1st Cir. 1982) (that informant claimed to have watched defendants steal mail sufficient to establish personal knowledge). Compare Illinois v. Gates, 462 U.S. 213 (1983):

[I]t is wiser to abandon the ‘two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. . . . The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity' and ‘basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]' that probable cause existed.

Id. at 232, 238-239. That Detective Kent relied on another officer's (Detective Kelley's) assessment of CI-2's reliability (the second prong of the Aguilar-Spinelli test) is of no moment.[7] It is hornbook law that a police-officer informant recited as a source of information in a warrant affidavit is presumptively reliable. United States v. Ventresca, 380 U.S. 102, 111 (1965).

         Next, although Fletcher has standing to object to the search of the storage locker, he has no standing to object to the police entry of the storage facility itself. A defendant has no expectation of privacy in the common areas of a premises he shares with others, including a common storage area. See United States v. Thornley, 707 F.2d 622, 624-625 (1st Cir. 1983) (no reasonable privacy expectation in a freely accessible basement of an apartment building used by tenant for storage); see also United States v. Hawkins, 139 F.3d 29, 32-33 (1st Cir. 1998).[8] This is especially true when he has no ownership or possessory interest in the common areas at issue. See United States v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977) (doctor-proprietor had no expectation of privacy in a print shop owned by his hospital corporation); cf. United States v. Sarkisian, 197 F.3d 966, 986-987 (9th Cir. 1999) (same, while defendants had a right of access to a storage unit, they neither paid the rent nor claimed an ownership interest in the stored items). Finally, assuming that the police did in fact open and inspect the locker prior to obtaining a search warrant (the government vigorously denies that this was the case), [9] that fact would have Fourth Amendment significance only if information obtained from a warrantless search had found its way into the application for the Third Warrant presented to the issuing Magistrate. In this respect, the case is controlled by the independent source doctrine and the Supreme Court's decision on almost identical facts in Murray v. United States, 487 U.S. 533, 542 (1988) (“So long as a later, lawful seizure is genuinely independent of an earlier, tainted one . . . there is no reason why the independent source doctrine should not apply.”).

         In a careful examination of Detective Balcom's affidavit, I find no suggestion, however faint, that it contains any information that arguably was gleaned from a warrantless search of Fletcher's locker prior to the presentment to the Magistrate. While under Murray, the prosecution is obligated to prove that the officer's decision to seek a warrant was not prompted by the prior illegal search, id. at 542-543 & n.3, here it is clear that the decision to seek the warrant was based on the information provided by the confidential informants, by the seizure from Fletcher's person of keys that appeared to be consistent with those customarily used to access a storage locker, by the early morning confirmation from the owner of the facility that locker Unit #26 had been rented by Fletcher's mother and frequented by Fletcher on a regular basis (according to the owner, often “multiple times per day”), and by the surveillance of Fletcher entering Simple Storage and then being driven by Cotell to sell drugs to the occupant of a white minivan shortly before the two were arrested (but a few hours before the Third Warrant issued).

         Under the prevailing law, when tainted information infects a warrant affidavit, a court is to apply the redaction doctrine. United States v. Veillette, 778 F.2d 899, 903-904 (1st Cir. 1985) (after excising information obtained as the result of an illegal entry, sufficient probable cause remained to provide an independent basis for issuance of the warrant). Despite dicta to the contrary in Murray (cited by Fletcher), the government is not required to prove that the Magistrate would have issued the warrant despite being exposed to tainted information in the affidavit.[10] United States v. Restrepo, 966 F.2d 964, 970 (5th Cir. 1992) (“Nothing in Murray [other than the sentence fragment concerning information that might have affected the magistrate's decision] . . . indicates that the Supreme Court intended to reject the prevailing Franks-inspired [excision] rules”); United States v. Dessesaure, 429 F.3d 359, 366-367, 369 (1st Cir. 2005) (same - the focus is “wholly objective”). That said, I find there is nothing to be excised.

         Consequently, probable cause[11] supported the issuance of the Third Warrant based on: (1) the information provided by CI-1 that Fletcher used Simple Storage as a hiding place for his drugs and replenished his drug supply as needed from a padlocked storage locker on the premises; (2) the independent corroboration of Fletcher's frequent access of the locker which proved consistent with CI-1's description of Fletcher's drug dealing modus operandi; (3) both from the owner of Simple Storage and from police surveillance on the night of April 2, 2015, when Cotell was observed dropping Fletcher briefly at Simple Storage and then driving off with him to a rendezvous with a drug customer (two hours before the execution of the Second Warrant); (4) the earlier seizure from Fletcher's person (pursuant to the Second Warrant) of eleven baggies of cocaine and a significant amount of cash; (5) the incorporation of Detective Kent's affidavit supporting the Second Search Warrant detailing a second reliable informant's (CI-2) report of extensive drug dealing on Fletcher's part, often in the company of Cotell; (6) Cotell's four controlled sales of drugs to CI-1 during the eighteen days preceding the execution of the Second Warrant[12]; (7) and Fletcher's lengthy record of arrests and convictions for drug violations, crimes of violence, and firearms violations.[13]

         Fletcher next complains that the evidence seized from the storage locker exceed the scope of what was authorized by the Third Warrant.[14]The Fourth Amendment requires that a warrant “particularly describe” the place to be searched and the persons or things to be seized. Groh v. Ramirez, 540 U.S. 551, 557 (2004). As to articles and persons to be seized, ‚Äúnothing is left to ...


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