CAROLYN K. DELANEY, Magistrate Judge.
COMES NOW Olusere Olowoyeye, Assistant United States Attorney for the Eastern District of California, to petition this Court and respectfully represent:
1. On November 16, 2012, the Honorable Dale A. Drozd, issued an order sealing the Government's application for tracker warrants and underlying affidavit in Case No. 2:12-sw-0769 DAD until further order of the Court.
2. As of today, February 20, 2014, the defendants have been arrested. The defendants request an opportunity to review the warrants and underlying affidavit as they prepare motions to suppress evidence.
It is now necessary to unseal the Government's affidavit supporting the application for tracker warrants so the defendants may prepare motions to suppress evidence.
Upon review of the affidavit supporting the application for tracker warrants, the attorney of the Government observed that personal information, including dates of birth and driver license numbers, for several of the defendants were included in the affidavit.
THEREFORE, your petitioner prays that the government may file a redacted copy of the underlying affidavit.
[PROPOSED]
IT IS SO FOUND AND ORDERED.
Brian Swenson, a Special Agent with the United State Drug Enforcement Administration, being duly sworn, deposes and states:
I am a Special Agent (S/A) with the United States Drug Enforcement Administration (DEA) and have so been employed since May of 2004. I am presently assigned to the DEA Sacramento District Office. I am a law enforcement officer of the United States and I am empowered by law to conduct investigations, execute and serve search warrants, and make arrests for offenses enumerated in Section 878, of Title 21, United States Code.
I was trained as a DEA Special Agent at the DEA Academy, Quantico, Virginia. I received specialized training in the Controlled Substance Act, Title 21 United States Code, including, but not limited to, Sections 841(a)(1) and 846, Controlled Substance Violations and Conspiracy to Commit Controlled Substance Violations, respectively. I was assigned to the Sacramento District Office in June of 2004. As part of my assignment I have participated in investigations targeting individuals and organizations trafficking marijuana, heroin, cocaine, crack cocaine, methamphetamine, ecstasy, and other controlled substances as defined in Title 21 United States Code, Section 801. I have been actively involved as a case agent in numerous investigations and have interviewed cooperating defendants and confidential sources who were involved in narcotics trafficking. I have performed enforcement related tasks such as executing state and federal search warrants, arrest warrants, utilizing confidential sources for the purchase of narcotics and surveillance of suspects.
I have been involved in several investigations targeting drug trafficking organizations who were cultivating marijuana in residential properties in the Sacramento, California area. These residential properties were typically converted into full-scale indoor marijuana gardens that posed serious hazardous conditions to the occupants of the residences as well as nearby properties and residents. I know that marijuana cultivators often steal electrical power by tampering with the main power lines going into the power meter which is typically attached to the garage area of the residence in order to avoid paying high energy bills. Indoor marijuana gardens use very high amounts of electricity to operate the sophisticated ventilation and lighting systems used to cultivate marijuana. I know that marijuana cultivators do not commonly list themselves as the utility subscribers for fear of being detected by law enforcement.
Based on my training and experience, I know that marijuana cultivators typically do not park in the driveways of the residences containing marijuana gardens for fear of being detected by law enforcement or their neighbors. Marijuana cultivators often park in the garages instead in order to conceal illegal activity, such as the loading and unloading of marijuana and cultivation equipment.
Based on my training and experience, I know that marijuana cultivators commonly use large industrial type ventilation systems in their gardens consisting of large conical carbon air filters, high-power industrial type electrical fans, large ducting, and other equipment for the purpose of providing fresh air for the marijuana plants and to ventilate the marijuana odor to lessen their risk of being discovered by police. These ventilation systems are noisy and can often be heard operating inside the marijuana garden houses by law enforcement officers standing in public areas adjoining them.
Upon information and belief, your affiant alleges that there is probable cause to believe that Shihong CHEN, Quihong LI, Jun PENG, and Zhiqiang LIU are utilizing a 2002 Lexus Sedan, CA license 4WYU928; a 2008 Toyota Sienna, CA license 6LHH222; and a 2006 Toyota Sienna, CA license 6UNC361, hereinafter "SUBJECT VEHICLES," to facilitate the manufacture and distribution of marijuana as detailed in this affidavit. Your affiant states that the facts which establish the probable cause necessary for issuance of this Order are known to me through my ongoing collaboration with Detectives of the Elk Grove Police Department.
Shihong CHEN is identified as an Asian male with black Hair and brown eyes, approximate height of 5'7", approximate weight of 128 lbs, with a date of birth of[REDACTED/> and a California driver's license of [REDACTED/] A criminal history check of CHEN was negative; he does not appear to have a criminal history.
Qinghong LI is identified as an Asian female with black Hair and brown eyes, approximate height of 5'2", approximate weight of 118 lbs, with a date of birth of [REDACTED/] and a California driver's license [REDACTED/] A criminal history check of LI was negative; she does not appear to have a criminal history.
Jun PENG is identified as an Asian male with black Hair and brown eyes, approximate height of 5'9", approximate weight of 150 lbs, with a date of birth of [REDACTED/] and a California driver's license of [REDACTED/] A criminal history check of PENG was negative; he does not appear to have a criminal history.
Zhiqiang LIU is identified as an Asian male with black Hair and black eyes, approximate height of 5'8", approximate weight of 150 lbs, with a date of birth [REDACTED/] and a California driver's license of [REDACTED/] A criminal history check of ZHIQIANG was negative; he does not appear to have a criminal history.
Your deponent further states that there is probable cause to believe that the installation of a tracking device in or on the subject vehicles, and use of the tracking devices, will lead to evidence, fruits, and instrumentalities of the aforementioned crimes as well as to the identification of individuals who are engaged in the commission of those and related crimes. Attachment A to this Affidavit describes the SUBJECT VEHICLES and is incorporated here by reference.
The source of your deponent's information and the grounds for his belief are as follows:
1. During the month of April, 2012, Detectives from the Elk Grove Police Department (EGPD) received information from investigators with the Sacramento Municipal Utilities District (SMUD) regarding large amounts of power being used at a residence located at 8646 Everidge Court, Sacramento, California. SMUD investigators advised Detectives that the average monthly use of power was 9,936 KWH which was excessively high power consumption and consistent with individuals who use residences to manufacture marijuana.
2. On April 5, 2012, EGPD Detectives observed the residence at 8646 Everidge Court to be a two story residence. The windows on the residence were covered by blinds. Detectives observed two upstairs bedroom windows at the rear of the residence to be partially open. All the other windows were closed. The two bedroom windows were open approximately six inches. The window screens were dirty and had collected debris. Your affiant knows that individuals that operate indoor marijuana grows commonly leave a window open for ventilation with the use of fans and charcoal filters. Air is sucked through the open window, which is the only source for airflow, and causes any dust or dirt to build excessively upon the screen. A computer search revealed that Zhiqiang LIU listed the residence at 8646 Everidge Court as his place of residence.
3. EGPD Detectives conducted a registered vehicle check of Li Feng, the utility subscriber for the residence at 8646 Everidge Court and learned that a Toyota Sienna vehicle was registered to her bearing license plate 6UNC361.
4. On April 12, 2012, EGPD Detectives drove to 8646 Everidge Court and observed there were no changes in the appearance of the residence. It was raining and both rear bedroom windows were open. As they approached the front door area, they could hear a humming sound coming from inside the residence, which is consistent with the high power fans and blowers often utilized in residential marijuana cultivation.
5. On April 18, 2012, EGPD Detectives conducted surveillance at 8646 Everidge Court. During the surveillance, Detectives observed Zhiqiang LIU back a silver Toyota Sienna bearing license plate 6UNC361 out of the garage and drive away. SCU maintained surveillance of Zhiqiang LIU and observed him pulling into the garage of 8270 Cliffcrest Way, Sacramento, CA. The garage door closed as soon as Zhiqiang LIU pulled inside. Detectives observations of the residence at 8270 Cliffcrest Way and noticed it had every window covered tightly with blinds, typical of residences containing marijuana cultivations. Detectives contacted SMUD investigators and learned that the residence at 8270 Cliffcrest Way had used over 10,000 KWH of power usage over the last two months which was consist with the high power usage of a residence containing a marijuana cultivation. While conducting surveillance at 8270 Cliffcrest Drive, Detectives observed a black Lexus sedan bearing license plate 4WYU928 arrive. Detectives observed an Asian female, identified as the registered owner of the vehicle Quinghong Li, exit the vehicle and walk to the front door area of the residence where she was no longer in sight. Shortly thereafter, Detectives observed Zhiqiang LIU back the Toyota Sienna bearing license plate 6UNC361 out of the garage at 8270 Cliffcrest Drive and drive back to 8646 Everidge Court where he parked the vehicle inside the garage at the residence.
6. The property owner for 8646 Everidge Ct was found to be Green Venture LLC with a mailing address of 3700 Wisconsin Street, Oakland, CA, which was the same address listed for Zhiqiang LIU through the California DMV.
7. On July 7, 2012 at approximately 0755 hours, Detectives drove by 8646 Everidge Court and observed the trash container to be sitting out in front of the residence along the curb waiting for trash pickup. Detectives observed the trash to contain a black contractor's plastic garbage bag. Detectives cut open the bag and observed it to be filled with marijuana plant leaves and stems.
8. On September 12, 2012, EGPD Detectives received SMUD customer billing information for 8646 Everidge Court and 8270 Cliffcrest Drive which revealed that both houses were still using over 10,000 KWH of electricity per month.
9. On September 18, 2012, at 0630 hours, Detectives conducted surveillance at 8270 Cliffcrest Drive and observed a light blue Toyota Sienna bearing license plate 6LHH222 pull into the garage at the residence. The garage door closed right afterwards. A vehicle registration check revealed the Toyota Sienna was registered to Shihong CHEN at 9761 McKenna Drive, Elk Grove, CA. After approximately one hour, Detectives observed the garage door of 8270 Cliffcrest Drive open and they watched the Toyota Sienna van back out of the garage and drive away driven by Shihong CHEN. Detectives observed Shihong CHEN drive and park the Toyota Sienna at 9761 McKenna Drive. Shihong CHEN walked into the garage at the residence. Shortly thereafter, Shihong CHEN exited the residence and drove away followed by Detectives. Later that day, Shihong CHEN returned to 9761 McKenna Drive at which time Detectives observed the Lexus sedan bearing license plate 4WYU928 parked inside the open garage at the residence.
10. Detectives contacted SMUD and learned that billing customer information for 9761 McKenna Drive Shihong CHEN with service start date of June 1, 2012 and an average monthly power usage of 2825 KWH. SMUD investigators indicated that the first two months of power usage were in the low hundreds of KWH and then the usage jumped up this past month to just below 5000 KWH which was extremely high.
11. On September 25, 2012, EGPD Detectives learned that a traffic stop was conducted on the Lexus bearing license plate 4WYU918 on February 21, 2012 in the area of Spengler Drive and Elkpoint Ct, Sacramento. During the traffic stop, officers identified the occupants as Qinghong LI and Shihong CHEN and observed that they had two electric ballasts that were warm to the touch and two high power cultivation light hoods inside the vehicle. Officers also could smell the strong odor of marijuana coming from inside the vehicle. The area where the traffic stop was conducted was approximately 10 houses away from 8270 Cliffcrest Drive. Detectives conducted surveillance at 9761 McKenna Drive and observed Qinghong LI walk out of the garage and enter the Lexus sedan bearing license plate 4WYU928 after which she departed the area.
12. Detectives were also conducting surveillance at 8270 Cliffcrest Drive and observed Shihong CHEN exit the garage at the residence, pull a garbage can from the curb, and then drive away from the residence in a Toyota Sienna bearing license plate 6LHH222. Detectives followed Shihong CHEN to 9761 McKenna Drive at which time Detectives observed Qinghong LI, and an individual identified as Jun PENG, who were standing in the driveway at the residence, enter Shihong CHEN's Toyota Sienna. The vehicle departed the area. Detectives were also conducting surveillance at 8646 Everidge Court at the time and observed Zhiqiang LIU back out of the garage at the residence and drive away in the Toyota Sienna bearing license plate 6UNC361. As Detectives conducted surveillance on the vehicle, Zhiqiang LIU made several quick lane changes while on the freeway and exited the freeway at the last minute onto 47th Ave in Sacramento. The vehicle then made a U-turn and quickly sped away out of the surveillance team's view. It appeared to Detectives that Zhiqiang LIU was conducting counter surveillance. I know, based on my training and experience, that individuals who are engaged in the trafficking and sales of illegal narcotics will commonly conduct counter surveillance when they leave their residences in order to detect if they are being followed.
13. On September 29, 2012, EGPD Detectives contacted SMUD investigators and received power usage comparisons for 8646 Everidge Ct, 8270 Cliffcrest Drive, and 9761 McKenna drive. The power usage for 8646 Everidge Court averaged 9,075 KWH per month. Four of the neighboring residences showed monthly average power usage of 1,347 KWH, 574 KWH, 743 KWH, and 574 KWH per month. The power usage for 8270 Cliffcrest Drive averaged 8,581 KWH per month. Three of the neighboring residences showed monthly average power usage of 853 KWH, 509 KWH, and 503 KWH per month. The power usage for 9761 McKenna Drive averaged 2825 KWH per month. Three of the neighboring residences showed monthly average power usage of 764 KWH, 447 KWH, 866 KWH, and 574 KWH per month. Based on my training and experience, I know that subjects involved with the indoor cultivation of marijuana utilize numerous grow lamps, numerous ballasts, and fans to cultivate marijuana. The grow lamps which are used contain 1000 watt bulbs. The above listed equipment uses enormous amounts of electricity compared to a normal household.
14. On October 9, 2012, Detectives conducted a trash run at 8270 Cliffcrest Drive. The trash container was located in front of the residence along the edge of the roadway and contained two small green marijuana leaves amongst the trash.
15. On October 23, 2012, at approximately 0515 hours, Detectives conducted surveillance at 8270 Cliffcrest Drive. While at the residence Detectives walked up to the front door and could smell a strong odor of marijuana coming from the residence as well as hear a loud humming sound which is consistent with the sound made from large blower fans circulating the air inside indoor marijuana grows. Detectives then drove to 8646 Everidge Court and were able to hear the loud humming sounds coming from inside the residence while in close proximity to the front door.
16. On October 25, 2012, Detectives contacted SMUD investigators and learned that the residence at 35 Caina Court, Sacramento, CA had large monthly electrical usage of 4979 KWH per month, up from 909 KWH in September. Detectives drove to 35 Caina Court and observed all the windows which are viewable from the street were closed and covered tightly with blinds. The small upstairs bathroom window was open. Based on my experience and the experience of other narcotics officers, individuals that operate indoor marijuana cultivations often leave a window open for ventilation with the use of fans and charcoal filters located inside the residence. Based on the recent jump in power usage at 35 Caina Court and the observations made of the residence, your affiant believes that the residence likely contains a marijuana cultivation.
17. On October 25, 2012, EGPD Detectives authored two California State search warrants for the installation of GPS trackers onto the Lexus sedan bearing license plate 4WYU928, and the Toyota Sienna bearing license plate 6LHH222 (which are owned by Qinghong LI and Shihong CHEN). The search warrants were approved and signed by Sacramento Superior Court Judge Jack Sapunor. The GPS trackers were authorized for a period of 10 days.
18. On October 26, 2012, Detectives located the Lexus bearing license plate 4WYU928 parked in the driveway at 9761 McKenna Drive. Detectives installed the GPS tracker onto the exterior of the vehicle.
19. October 31, 2012, 1254 hours, after monitoring the GPS tracker on the Lexus, Detectives learned that the vehicle had been parked in front of a residence located at 8108 Gwerder Court. Detectives conducted surveillance near the residence and observed Jun PENG and a passenger driving a vehicle which had seen on several occasions at 9761 McKenna Ct, into the neighborhood. Detectives observed Jun PENG drive to the residence at 8108 Gwerder Court and park in the driveway after which they began unloading the contents of the vehicle into the garage. An EGPD detective, while operating in an undercover capacity, approached Jun PENG and made contact with them regarding a ruse of seeing someone attempting to break into the Lexus. While conversing with them, the detective observed the passenger to be Shihong CHEN and they were unloading lumber and large ducting into the residence. As soon as the detective made contact with Jun PENG, he closed the hatchback on his vehicle. Based on my training and experience with investigating no less than thirty (30) indoor marijuana grows, I know that cultivators of indoor marijuana will use the lumber to frame supports for the grow trays the marijuana plants are on, and they use the lumber to build false walls. I also know that ducting is used in the residence to hook up to blower fans to help ventilate the marijuana cultivation. Based on the lumber, ducting, and closing of the hatch on the vehicle, your affiant believes that it is likely that Jun PENG and Shihong CHEN were in the process of converting the residence into a residential marijuana cultivation.
20. On November 2, 2012, Detectives conducted surveillance at 9761 McKenna drive and observed Shihong CHEN depart the residence in the Toyota Sienna bearing license plate 6LHH222. Detectives conducted surveillance of Shihong CHEN and followed him to 8108 Gwerder Court where the vehicle parked. Detectives observed Shihong CHEN walk up to the front of the residence out of view. Detectives then installed a GPS tracker onto the exterior of the Toyota Sienna bearing license plate 6LHH222 as it was parked in the street. Shortly thereafter, Detectives observed Shihong CHEN and Jun PENG exit the residence, get into the Toyota Sienna and drive away. Detectives observed the driver to be Jun PENG. They were followed to a Home Depot business nearby at which time Detectives observed them enter the store and purchase two (2) sheets of plywood and a couple of 2×4's. The Toyota Sienna was then followed back to 8108 Gwerder Court where they unloaded the items into the residence.
21. From September 26th through November 4th, Detectives continued to monitor the GPS trackers on both the Lexus bearing license plate 4WYU928 and the Toyota Sienna bearing license plate 6LHH222. Both vehicles were frequenting the suspected residential marijuana cultivations at 8270 Cliffcrest Drive and 9761 McKenna Way.
22. The GPS tracker monitoring and recording of both the Lexus bearing license plate 4WYU928 and the Toyota Sienna bearing license plate 6LHH222 was ended on November 4th, 2012 at 2358 hours pursuant to the 10 day monitoring period in the warrant.
23. On November 6, 2012, EPGD Detectives renewed the GPS tracker warrants for the Lexus sedan bearing license plate 4WYU928 and the Toyota Sienna bearing license plate 6LHH222. The tracker warrants were authorized and signed by Sacramento Superior Court Judge Jack Sapunor. Once the tracker warrants were signed, Detectives activated the GPS trackers and began monitoring the vehicle's locations. Detectives learned that the GPS tracker on the Toyota Sienna bearing license plate 6LHH222 was located in a warehouse district near of Belvedere Ave and Power Inn Road in Sacramento. Detectives responded to the area in an attempt to see what type of business the vehicle was parked at and observed a hydroponics equipment business called "Hydro World." However, the vehicle had already departed. Your affiant knows that marijuana cultivators commonly purchase hydroponics equipment such as light hoods, ballasts, fans, and carbon filters, at business such as "Hydro World" to use in their marijuana cultivations. Detectives later located the Toyota Sienna bearing license plate 6LHH222 at 8720 Cliffcrest Drive driven by Shihong CHEN with passenger Jun PENG. Detectives observed the vehicle park in the garage at the residence, after which the garage door closed. A short time later, Jun PENG and Shihong CHEN departed 8720 Cliffcrest Drive in the Toyota Sienna bearing license plate 6LHH222 and were followed to 9761 McKenna Drive where they parked.
24. Based on the abovementioned facts, it is your affiant's belief that: Qinghong LI and Shihong CHEN are driving a black colored 2002 Lexus GS 430 with California license plate 4WYU928, with vehicle identification number (VIN) JT8BL69S420010426, which is registered to Qinghong LI at 1466 Jackson Street Apt # A, San Francisco, CA; and that Shihong CHEN and Jun PENG are driving a light blue colored 2008 Toyota Sienna with California license plate 6LHH222, with vehicle identification number (VIN) 5TDZK23C78S148772, registered to Shihong CHEN at 9761 McKenna drive, Elk Grove, CA; and that Zhiqiant LIU is driving a silver colored 2006 Toyota Sienna with California license plate 6UNC361, with vehicle identification number (VIN) 5TDZA23C06S503703, registered to Limei Feng at 3700 Wisconsin Street, Oakland, CA.
25. Based on the investigation, your affiant believes that it is very likely that the residences located at 8646 Everidge Court, Sacramento, California; 8270 Cliffcrest Drive, Sacramento, California; 9761 McKenna Drive, Elk Grove, California; and 35 Caina Court, Sacramento, California, each contain a marijuana cultivation inside the residence and the target subjects listed above are tending to the marijuana plants.
26. Based on the foregoing, I believe that there is probable cause to believe the SUBJECT VEHICLES will be used to facilitate the transportation and distribution of marijuana. Moreover, I believe that monitoring of the electronic tracking devices on the SUBJECT VEHICLES would reveal to investigators the locations that the target subjects are frequenting to manufacture and distribute marijuana and will assist Agents and Detectives in identifying other co-conspirators engaged in the manufacture, transportation, and distribution of marijuana.
27. In order to track the movement of the subject vehicle effectively and to decrease the chance of detection, I seek to place a tracking device in or on the subject vehicle while it is in the Eastern District of California. Because each of the aforementioned subjects sometimes park the subject vehicle in his/her driveway and on other private property, it may be necessary to enter onto private property and/or move the subject vehicle in order to effect the installation, repair, replacement, and removal of the tracking device. To ensure the safety of the executing officer(s) and to avoid premature disclosure of the investigation, it is requested that the court authorize installation and removal of the tracking device during both daytime and nighttime hours.
28. In the event that the Court grants this application, there will be periodic monitoring of the tracking device during both daytime and nighttime hours for a period of
29. It is requested that the warrant and accompanying affidavit and application in support thereof, as they reveal an ongoing investigation, be sealed until further order of the Court in order to avoid premature disclosure of the investigation, guard against the flight of fugitives, and better ensure the safety of agents and others, except that copies of the warrant in full or redacted form may be maintained by the United States Attorney's Office, and may be served on Special Agents and other investigative and law enforcement officers of the Elk Grove Police Department, federally deputized state and local law enforcement officers, and other government and contract personnel acting under the supervision of such investigative or law enforcement officers, as necessary to effectuate the warrant.
30. In accordance with 18 U.S.C. 3103a(b) and Federal Rule of Criminal Procedure 41(f)(3), I request that the warrant delay notification of the execution of the warrant for a period not to exceed 30 days after the end of the authorized period of tracking (including any extensions thereof) because there is reasonable cause to believe that providing immediate notification would seriously jeopardize the investigation.
THEREFORE, your deponent respectfully requests that the Court issue a warrant authorizing members of the DEA, Elk Grove Police department, or their authorized representatives, including but not limited to other law enforcement agents and technicians assisting in the above-described investigation, to install a tracking device in or on the subject vehicle within the Eastern District of California within 10 calendar days of the issuance of the requested warrant, and to remove said tracking device from the subject vehicle after the use of the tracking device has ended; to surreptitiously enter the target subject's residence, or when the SUBJECT VEHICLES are parked within the curtilage of the subject's residence and/or move the subject vehicle to effect the installation, repair, replacement, and removal of the tracking device; and to monitor the tracking device, for a period of 45 days following the issuance of the warrant, including when the tracking device is inside private garages and other locations not open to the public or visual surveillance, both within and outside the Eastern District of California.
Installation of a tracking device within a black colored 2002 Lexus GS 430 with California license plate 4WYU928, with vehicle identification number (VIN) JT8BL69S420010426, which is registered to Qinghong LI at 1466 Jackson Street Apt # A, San Francisco, CA;
Installation of a tracking device within a light blue colored 2008 Toyota Sienna with California license plate 6LHH222, with vehicle identification number (VIN) 5TDZK23C78S148772, registered to Shihong CHEN at 9761 McKenna drive, Elk Grove, CA;
Installation of a tracking device within a silver colored 2006 Toyota Sienna with California license plate 6UNC361, with vehicle identification number (VIN) 5TDZA23C06S503703, registered to Limei Feng at 3700 Wisconsin Street, Oakland, CA.
