United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.
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
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).
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).
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.
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, additional rounds of
ammunition, a quantity of drugs, and drug paraphernalia were
seized from the bedroom occupied by Jiminez.
Search of the Residence
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
Seizure of the Ammunition
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).
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.
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
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, ...