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United States v. Heyer

United States District Court, D. Massachusetts

December 27, 2018




         Jessika Heyer is before the court as collateral damage of the drug dealing done by her son Roberto Jiminez-Heyer (Jiminez) from her home at 102 Washington Avenue in Chelsea, Massachusetts. Specifically, Heyer is charged with maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(2). At issue are two rounds of handgun ammunition seized by federal law enforcement officers from a nightstand in her bedroom pursuant to a search warrant executed on July 22, 2015. Heyer challenges the warrant on three grounds: (1) an alleged lack of probable cause to search her entire home for evidence of drug dealing; (2) an alleged lack of particularity as to the areas of the home to be searched, including her bedroom; and (3) the failure of the executing officers to observe the aptly named “knock and announce” rule. She also objects to any application of the so-called “good faith exception” to the exclusionary rule.

         A search warrant may issue on a showing of probable cause - something more than a suspicion, but something significantly less than proof beyond a reasonable doubt. See Safford v. Unified Sch. Dist. of Redding, 557 U.S. 364, 371 (2009) (noting that probable cause is a fluid concept taking its substantive content from the particular circumstances - “the best that can be said generally about the required knowledge component of probable cause . . . is that it raise a ‘fair probability,' . . . or a ‘substantial chance,' . . . of discovering evidence of criminal activity”) (citations omitted). The standards defining probable cause are “not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). In evaluating probable cause, “we have consistently looked to the totality of the circumstances . . . reject[ing] rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” Florida v. Harris, 568 U.S. 237, 244 (2013) (citations omitted).

         Whether a challenged warrant is issued on a sufficient showing of probable cause is a question of law to be determined by the reviewing court. Beck v. Ohio, 379 U.S. 89, 96 (1964). In reviewing probable cause for the issuance of a warrant, the inquiry begins and ends with the “four corners of the affidavit.” United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999). “[W]hile underlying circumstances must be recited, affidavits should be construed in a commonsense manner and . . . doubtful cases should be resolved in favor of the warrant.” Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir. 1966). Where, as here, a search is conducted pursuant to a warrant, the burden falls to the defendant to show the absence of probable cause by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n.14 (1974).

         The contested warrant was issued by Magistrate Judge Kelley on July 20, 2015, on the application of Elliot Rizzo, a Special Agent of the Bureau of Alcohol, Tobacco, and Firearms (ATF). In his affidavit, Agent Rizzo set out the following salient facts. Since early June of 2015, Rizzo and other law enforcement officers had focused on suspected drug dealing by Jiminez. Their principal source of information was a confidential witness identified as CW-1, a person known personally to Agent Rizzo as a paid ATF informant with a record of providing truthful and reliable information. CW-1 identified Jiminez as a member or an associate of the East Side Money Gang, a violent Chelsea street gang implicated in several shootings of rival gang members. Jiminez, who was 18 years of age at the time, was independently known by the officers to have several delinquency findings based on crimes of violence, including assault and battery with a dangerous weapon and attempted armed robbery. CW-1 disclosed that Jiminez lived with family members in a single-family home at 102 Washington Avenue in Chelsea, a fact confirmed by the officers through Registry of Motor Vehicles and Criminal History Board records.

         As related in the affidavit, in late June of 2015, acting under the agents' direction, CW-1 made a controlled purchase of crack cocaine from Jiminez in a meeting in front of 102 Washington Avenue. In mid-July, CW-1 made a second c0ntrolled purchase of crack cocaine from Jiminez after he emerged from the residence. This transaction was secretly taped by audio and video recorders. Agent Rizzo concluded his affidavit with the observation that in his training and experience, drug dealers commonly keep records and other memorabilia of their illicit business in the homes they use as stash houses, usually together with drugs and packaging paraphernalia and firearms “to protect both themselves and their drugs from thefts and/or robberies.” Rizzo Aff. ¶ 10.g. Agent Rizzo sought, and received, authority to search what was described as a three-story, single family home at 102 Washington Avenue, including all rooms, and containers where drugs and firearms might be stored or concealed, such as “safes, vaults, file cabinets, drawers, luggage, briefcases, valises, boxes, jewelry boxes, cans, bags, purses, and trash cans located on or near the premises, that are owned or under the control of the occupants of such premises.” Warrant, Attach. A. The items at issue, two rounds of .380 caliber ammunition, were seized from the drawer of a nightstand in Jessika Heyer's basement bedroom. A .38 caliber revolver,[1] additional rounds of ammunition, a quantity of drugs, and drug paraphernalia were seized from the bedroom occupied by Jiminez.

         A. The Search of the Residence

         It has long been the rule that a warrant for a single-family home permits the search of the entire dwelling regardless of who has claim to any specific room or common area so long as the evidence or contraband detailed in the warrant might reasonably be found there. United States v. McLellan, 792 F.3d 200, 212 (1st Cir. 2015). Heyer argues that because the only person accused of drug dealing in Agent Rizzo's affidavit was Jiminez, the warrant should have been limited to a search of his bedroom and the common areas of the house to which he had free access. Heyer, while conceding that “cases generally uphold searches of a single-family residence occupied by several people, ” Def.'s Mem. at 9, contends that had the affidavit been more specific in detailing the presence of others in the house, including two guests and a small child, the Magistrate Judge would have required the higher showing of particularity as to the unit to be searched that is applied in cases involving multi-unit dwellings. See, e. g., United States v. Mousli, 511 F.3d 7, 12 (1st Cir. 2007) (“[T]he particularity requirement obligates the police to ‘specify the precise unit that is the subject of the search,' and ‘the general rule is that a warrant that authorizes the search of an undisclosed multi-unit dwelling is invalid.'”) (citation omitted). The problem with the argument is two-fold. In the first instance, 102 Washington Avenue was not a multi-unit dwelling; it was exactly as Agent Rizzo described it - a single-family dwelling where other members of Heyer's family and her invitees also lived or stayed. Second, Heyer has offered no evidence that the rooms in her residence had been dedicated to the exclusive use of individual inhabitants (including Jiminez), or that the officers had any reason to suspect that such might have been the case. In an early case involving a warrant directed to a residential building that, unbeknownst to officers, had been subdivided into separate units, the Supreme Court made the common-sense observation that “we must judge the constitutionality of [the officers'] conduct in light of the information available to them at the time they acted.” Maryland v. Garrison, 480 U.S. 79, 85 (1987); see Id. at 88 (finding that the officers could not reasonably have known that a third-floor apartment had been subdivided); United States v. Dorsey, 591 F.2d 922, 931 (D.C. Cir. 1978) (same); Commonwealth v. Luna, 410 Mass. 131, 137 (1991) (holding that defendants failed to meet their burden of showing that police should have known that two separate apartments had been created in what outwardly appeared to be a single-family home); W. R. LaFave, 2 Search and Seizure § 4.5(b) (2012) (limning the “multiple-unit exception”).

         B. The Seizure of the Ammunition

         Heyer next argues that the warrant was overbroad in authorizing a search of her home for firearms and ammunition. It is true that the affidavit, while reciting delinquency findings that might well have involved the use of a firearm by Jiminez (assault and battery with a dangerous weapon and attempted armed robbery), made no specific link between Jiminez's drug dealing and firearms. Rather, Agent Rizzo offered a generalized opinion that weapons are often found in the possession of persons who deal in drugs. Again, there are two problems with Heyer's argument. The first is that the “love and marriage” association of drugs and guns is one confirmed by hard experience and well accepted by the courts. See United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989) (recognizing that firearms are “tools of the trade” for drug traffickers); United States v. Walters, 904 F.2d 765, 769 (1st Cir. 1990) (same); United States v. Sarda-Villa, 760 F.2d 1232, 1234 n.1 (11th Cir. 1985) (same); United States v. Payne, 805 F.2d 1062, 1065 (D.C. Cir. 1986) (same).

         The second stumbling block for Heyer is the “plain view” doctrine. It is well established that police executing a valid search warrant may seize evidence encountered in plain view. United States v. Aguirre, 839 F.2d 854, 858-859 (1st Cir. 1988); United States v. Robles, 45 F.3d 1, 6 (1st Cir. 1995); United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000); United States v. Van Damme, 48 F.3d 461, 466-467 (9th Cir. 1995). Here, the warrant at issue specified the seizure of firearms and ammunition. Even assuming, arguendo, that Agent Rizzo's affidavit failed to establish probable cause to believe that such would be found on Heyer's premises, items named in invalid portions of a warrant that are in plain view may be seized if the scope and intensity of the search leading to their discovery is consistent with the valid portions of the warrant. United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983); United States v. Soussi, 29 F.3d 565, 572 (10th Cir. 1994).

         It is true that the lawful view of an exposed item does not by itself justify a “plain view” seizure.

It is important to distinguish “plain view, “ as used . . . to justify seizure of an object, from an officer's mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search . . ., the former generally does implicate the Amendment's limitations upon seizures of personal property.

Texas v. Brown, 460 U.S. 730, 738 n.4 (1983) (plurality opinion) (citations omitted). For a plain view seizure to be valid, two mutually dependent prerequisites must be met: (1) a prior valid intrusion by officers into a constitutionally protected area; and (2) an “immediate” recognition of the item's evidentiary significance (that is, probable cause for its seizure). Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (plurality opinion); cf. Horton v. California, 496 U.S. 128, ...

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