DALE A. DROZD, District Judge.
Presently before the court is a motion to suppress evidence filed on behalf of defendant Kastis, styled as an amended motion to quash search warrant.
A Franks evidentiary hearing was held. (Doc. No. 102.) Assistant U.S. Attorneys David Gappa and Christopher Baker appeared on behalf of the government at that hearing, and defendant's then appointed counsel, attorney Carol Moses, appeared on behalf of the defendant. After the evidentiary hearing, the court requested additional briefing from the parties. (Id.) Thereafter, defendant filed supplemental briefing in support of the motion and the government filed supplemental briefing opposing defendant's motion. (Doc. Nos. 110, 111.) Defense counsel then filed a supplemental reply and the government filed a supplemental sur-reply. (Doc. Nos. 112, 113.)
Having considered the briefing submitted by the parties, the testimony presented at the May 22, 2017 evidentiary hearing, and for the reasons set forth below, the court grants defendant's motion.
This criminal prosecution has a long and tortured history. Unfortunately, the undersigned has contributed to that history by taking entirely too long to resolve the motion to suppress evidence. Below, the court summarizes the history of these proceedings before addressing that motion.
Clovis Police Department Corporal B. Kerr initiated a child molestation investigation of defendant on June 9, 2007, after receiving an anonymous report from a woman alleging that a neighbor had kissed her nine-year-old daughter. (Doc. No. 78 at 2.) The anonymous woman also alleged that her daughter had told her that two girls living in the same building were complaining about the same individual. (Id.) Following investigation of this report, on July 5, 2007, a search warrant was sought and obtained from a judge of the Fresno County Superior Court by Detective Joe Alvarado of the Clovis Police Department.
(Doc. No. 85-1 at 8-9.)
Based on this supporting affidavit, a warrant was issued authorizing the search of the defendant's apartment for the property listed in Attachment B to the warrant.
(Doc. No. 85-1 at 4.) However, Attachment B to the warrant, which was purportedly limited to describing the property to be seized, then oddly turned to a description of the affiant's opinion (based on his training, experience and conversations with other law enforcement officers or review of reports), as to those who produce, trade, distribute or possess images/pictures of minors engaged in sexually explicit conduct and the property/information they retain. (Id. at 4.) Immediately following that detour, Attachment B then broadly listed the following additional property, apparently authorizing the executing officers to search for and seize it as well:
(Doc. No. 85-1 at 5-6.)
The search warrant was executed at the defendant's apartment and vehicle on July 7, 2007. According to the affidavit in support of the complaint filed in this court, the executing officers seized a computer and electronic storage media, as well as books with photos of nude females under the age of 18, a printed story regarding a minor being forcefully molested, the candy dish and Gatorade, evidence detailing how the defendant only coached young girls in soccer, and a digital camera containing photographs of young girls focusing on their groin area with their underwear visible. (Doc. No. 1 at 6.) During a post-Miranda interview following the execution of the search, defendant admitted that he should not have possessed books with images of nude children and that he had taken photos, which he referred to as "fun photos," of little girls that focused on their faces and groin areas, but denied any inappropriate touching of young girls. (Id. at 6-7.) A subsequent forensic examination of the defendant's computer and hard drive seized during the search resulted in the discovery of 5,563 images of children being sexually exploited, with those images stored in an organized manner. (Id.) In addition, multiple sexually explicit stories in which the sexual molestation of children were a common theme were found on the defendant's computer. (Id. at 8.) Finally, 83 photos of 8 to 13-year-old girls that were sexual in nature, including images that appeared to have been produced by the defendant of children he had previously had access to, were found on that computer as well. (Id.)
Following the search of the apartment, but presumably prior to the forensic search of his computer, defendant was arrested and charged in the Fresno County Superior Court with violations of the California Penal Code for annoying or molesting a child.
In October 2011, in the state court proceedings, defendant moved to suppress the evidence seized from his apartment on various grounds, including pursuant to the Supreme Court's decision in Franks. (Doc. No. 85-2.) That motion was eventually denied in March 2013 without evidentiary hearing, following oral argument at which the defendant appeared in propria persona.
In the motion to suppress evidence that has been long-pending before this court, defendant contends that Detective Alvarado's three-page affidavit in support of the search warrant for defendant's apartment, and the seizure of all computer systems located therein, contained numerous false statements and omitted numerous material facts known to the affiant either intentionally or in reckless disregard for the truth, and that correction of these deficiencies would have been fatal to the probable cause determination. (Doc. No. 78 at 3-10.) Defendant further contends that the search warrant suffers from other deficiencies requiring the suppression of all evidence seized pursuant thereto. Among these other claimed deficiencies are: the warrant did not specify the crime(s) to which probable cause related (Doc. No. 110 at 5-7); the information set forth in the affidavit was stale (id. at 11-12); the warrant lacked particularity in its description of what was authorized to be seized (id. at 8-10); the warrant was overbroad (id. at 10-12); and the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984) is inapplicable here and suppression of all evidence seized is appropriate given the obviously defective nature of the search warrant. (Id. at 12-13.)
Defendant first argues that Detective Alvarado knowingly or recklessly included false statements in and omitted material facts from his affidavit, even though the true facts were known or should have been known to him at the time he drafted that affidavit. Where a challenge such as this is raised, the affidavit in support of a search warrant is entitled to "a presumption of validity." Franks, 438 U.S. at 171. However,
United States v. Craighead, 539 F.3d 1073, 1080-81 (9th Cir. 2008) (quoting Franks, 438 U.S. at 155-56); see also United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011); United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988).
Detective Alvarado's brief, three-page search warrant affidavit has been set forth in its entirety above. Defendant asserts that the affidavit in support of the warrant contains materially false statements and omitted material facts that were necessary to the finding of probable cause. Specifically, defendant contends as follows:
As noted, the undersigned granted defendant's request for a Franks hearing, finding that he had made a substantial preliminary showing that false statements were made or that there were material omissions from the affidavit knowingly and intentionally, or with reckless disregard for the truth, and that if corrected would have impacted the finding of probable cause. (Doc. No. 88 at 6.) In finding that a substantial preliminary showing had been made, the court stated:
(Id. at 7.)
At the Franks hearing, Detective Alvarado generally testified that he believed that the information he recounted in his statement of probable cause was truthful, and that he did not intend to include anything that was not truthful or designed to mislead the magistrate judge. (Doc. No. 107 at 14:7-15.) However, Detective Alvarado conceded that the following statements made in his three-page affidavit were inaccurate and, at least potentially, misleading:
In addition to conceding several false statements and omissions from his affidavit, Detective Alvarado also admitted during his testimony that he had simply cut and pasted the several paragraphs authorizing the search for and seizure of "[a]ll electronic processing and storage devices, computers and computer systems, etc." from a previous child pornography search warrant he had done. (Id. at 60:16-61:13.) He did so, even though he acknowledged he had developed no evidence indicating the defendant possessed lewd or lascivious photographs of children, photographs of children posed in a suggestive manner, or child pornography, but rather only evidence of one photograph taken of a young girl in her bathing suit. (Id. at 55:19-57:22, 61:10-13, 67:16-68:15.) Confusingly, Detective Alvarado testified that he did not intend to seek a search warrant authorizing a search for child pornography (despite his cutting and pasting of an excerpt from a previous child pornography warrant), but that he believed the search of defendant's computer would result in the seizure of child pornography.
Since it was established at the hearing that the affidavit contained false statements and omitted seemingly material information, the next question is whether the affiant officer did so intentionally or with reckless disregard for the truth. See Perkins, 850 F.3d at 1116; Martinez-Garcia, 397 F.3d at 1214-15. Here, the prosecution suggests that some of the false statements in the affidavit could be attributed to the fact that the affiant did not have the transcripts of the MDIC interviews of CV1 and CV2 at the time that he drafted his affidavit. This explanation rings hollow. Detective Alvarado's testimony establishes that, at the time he drafted his search warrant affidavit, he had both of Corporal Kerr's reports. (Doc. No. 107 at 12:10-13:5, 35:23-36:4, 40:14-18.) In addition, he was present for the MDIC interviews of both CV1 and CV2 and took his own notes of what was said during those interviews. (Id. at 19:11-21:7.) While it is true that transcripts of those interviews were not yet prepared at the time he drafted his search warrant affidavit (id. at 20:14-16), he had recordings of those interviews to review if he wished to, as well as his own notes. (Id. at 39:22-40:18.) Under these circumstances the false statements in and omissions from the affidavit were done, at the very least, with a reckless disregard for the truth of that affidavit.
Over his short three-page affidavit, the affiant related the facts developed by the investigation inaccurately and in a manner suggesting a stronger showing of probable cause, despite the fact that he possessed the few reports and interviews upon which his affidavit was purportedly based. See Chism v. Washington State, 661 F.3d 380, 388 (9th Cir. 2011) ("The most commonsense evidence that the officers acted with at least a reckless disregard for the truth is that the omissions and false statements contained in the affidavit were all facts that were within [the affiant's] personal knowledge."); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (omission of the complete statement of a witness which in part arguably detracted from the probable cause showing was done in reckless disregard for the truth even where the information was hidden from the affiant officer by another investigator); United States v. Chesher, 678 F.2d 1353 (9th Cir. 1982) (reckless disregard in saying a suspect was a current member of the Hell's Angels when affiant had been conducting an investigation for some time which should have apprised him that was untrue); see also United States v. Garcia-Zambrano, 530 F.3d 1249, 1257-58 (10th Cir. 2008) (upholding finding of reckless disregard for the truth of a search warrant affidavit where the affidavit was inconsistent with police reports and witness interviews); Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985) ("If an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth . . . he cannot be said to have acted in an objectively reasonable manner[.]").
Having determined that the affidavit demonstrated an intentional or reckless disregard for the truth, the final question is whether the warrant would have nonetheless been properly issued. As the Ninth Circuit has explained:
United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014); see also Perkins, 850 F.3d at 1119; United States v. Stanert, 762 F.2d 775, 782, amended on other grounds, 769 F.2d 1410 (9th Cir. 1985). In retesting the warrant, the court is to employ the well-recognized probable cause standard. See Illinois v. Gates, 462 U.S. 213, 231 (1983); United States v. Faagai, 869 F.3d 1145, 1150 (9th Cir. 2017); United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (recognizing that probable cause means "fair probability," not certainty or even a preponderance of the evidence, and concluding that it was reasonable to infer that there was a fair probability that defendant "received or downloaded" child pornography images based on the defendant's paid subscription to a child pornography website).
Here, the court is convinced that with the false statements and omissions corrected, this search warrant, as issued, could not have been properly authorized. All the reviewing judge would have had before him was an affidavit stating that: 1) a month earlier police received a report that at some unspecified time the defendant had invited three girls into his apartment for candy and Gatorade and then blocked CV1 in the doorway of his apartment and quickly kissed her five times; 2) on one subsequent occasion CV1 saw defendant purposely grab CV2's butt while they were playing soccer; 3) on one occasion at an unspecified time the defendant had purposely touched CV2's butt while they were swimming in the apartment complex pool; 4) CV2 also reported that six months earlier the defendant had invited her to get candy from a bowl in his apartment and had placed his hands over her shoulders onto her chest; and 5) the defendant had on one unspecified occasion taken a photograph of CV2 while she was wearing her bathing suit and had used the image as a screen saver on his computer. That limited information would have perhaps established probable cause to believe that the defendant had annoyed or molested a child in violation of California Penal Code § 647.6(a), a misdemeanor offense absent certain prior convictions. See California Penal Code § 647.6(c). Even if these facts could have arguably supported probable cause to believe that the felony offense of lewd or lascivious acts on a child in violation of Penal Code § 288(a) had been committed,
This conclusion is in keeping with settled, binding Ninth Circuit precedent. The Ninth Circuit has held that "a warrant predicated on the bare inference that those who molest children are likely to possess child pornography . . ., alone, does not establish probable cause to search a suspected child molester's home for child pornography." United States v. Needham, 718 F.3d 1190, 1195 (9th Cir. 2013); see also Perkins, 850 F.3d at 1120-21 (holding that absent any explanation of why defendant's prior child molestation conviction made it more likely that he possessed child pornography, the prior conviction did not support probable cause for child pornography warrant); Dougherty v. City of Covina, 654 F.3d 892, 899 (9th Cir. 2011) ("Officer Bobkiewicz's conclusory statement tying this `subject,' alleged to have molested two children and looked inappropriately at others, to `having in [his] possession child pornography' is insufficient to create probable cause here."); United States v. Weber, 923 F.2d 1338, 1344-45 (9th Cir. 1991) (holding that conclusory statements about the habits of "child molesters," "pedophiles," and "child pornography collectors," coupled with evidence that on one occasion the defendant had ordered but never picked up child pornography, was insufficient to establish probable cause).
Indeed, in this case and as he conceded at the evidentiary hearing, Detective Alvarado did not even attempt to draw this impermissible connection in his affidavit. (Doc. No. 107 at 65:6-68:15.) At the evidentiary hearing, Detective Alvarado testified that the only link suggesting that defendant might possess child pornography was "[t]he fact that [defendant]'s taking photographs of the juveniles." (Id. at 67:23-68:4.) The mere taking of photographs of children—when there was no suggestion that those photographs were lewd or lascivious—cannot suffice as probable cause to believe defendant was in possession of child pornography. The Fourth Circuit's decision in United States v. Doyle is instructive in this regard. There, the warrant application contained detailed allegations that Doyle had sexually assaulted three children, but only a single fact conceivably related to pornography: a statement that one of the alleged victims disclosed to a relative that Doyle had shown the victim pictures of nude children. 650 F.3d 460, 472 (4th Cir. 2011). The Fourth Circuit held that probable cause to search Doyle's home for child pornography was lacking in part because even though the statement was credible, it did not include any facts tending to show "that the pictures referenced . . . actually constituted child pornography," as opposed to mere nudity. Id. at 473. The facts here are even less probative than those in Doyle: here, the child in the singular photograph was not nude, and there was no suggestion that the photograph was otherwise lewd or lascivious. (Doc. No. 107 at 56:14-18, 57:12-15.)
Finally, at the evidentiary hearing the government elicited testimony from the affiant regarding facts that may have contributed to probable cause but were not included in the affidavit. The government suggests that the court should take such information into account in determining whether a corrected affidavit would have properly resulted in the issuance of this warrant. This argument is unpersuasive. As the Ninth Circuit has held:
Baldwin v. Placer County, 418 F.3d 966, 967 (9th Cir. 2005); see also Ewing v. City of Stockton, 588 F.3d 1218, 1225 at n.8 (9th Cir. 2009); Gaines, 2013 WL 5533192, at *5. The review of the corrected affidavit is therefore properly limited to what is left within its corrected four corners. Crowe w. County of San Diego, 608 F.3d 406, 434 (9th Cir. 2010) (quoting Stanert, 762 F.2d at 778); see also United States v. Luong, 470 F.3d 896, 904 (9th Cir. 2006) ("This Court has repeatedly held that [a]ll data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." (internal quotation marks omitted)). Finally, probable cause must exist to seize all the items of a particular type described in a search warrant. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986); see also United States v. SDI Future Health, Inc., 568 F.3d 684, 705 (9th Cir. 2009) ("We therefore conclude that Categories 9, 10, 11, 12, and 24 were overbroad because "probable cause [did not] exist[] to seize all items of [those] particular type[s].") (quoting United States v. Adjani, 452 F.3d 1140, 1148 (9th Cir. 2006)).
The court has concluded that defendant has established a Franks violation in this case. "Suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth." Leon, 468 U.S. at 923. The good faith exception to the exclusionary rule, therefore, does not apply in cases involving a Franks violation. Id.; see also United States v. Huggins, 299 F.3d 1039, 1044 (9th Cir. 2002); Mills v. Graves, 930 F.2d 729, 733 (9th Cir. 1991) ("There is no `good faith' exception to the Franks doctrine: a warrant based upon knowing or recklessly made falsehoods in the affidavit will be invalid."). Accordingly, defendant's motion to suppress the evidence seized pursuant to the challenged warrant must be granted.
Defendant also contends that the search warrant suffered from numerous other deficiencies and should be quashed in its entirety. First, defendant argues that the search warrant stated that the identified property subject to seizure was "lawfully seizable pursuant to [California] Penal Code § 1524" but did not identify which grounds for issuance of the warrant identified by that state statute were being relied upon for its issuance. (Doc. No. 110 at 5.) However, by its terms, it appears that § 1524 does not require an affiant seeking a warrant to specify the law or laws believed to have been violated. Moreover, there is no constitutional requirement that a search warrant describe the specific crimes the evidence to be seized relates to. See United States v. Grubbs, 547 U.S. 90, 98 (2006) (observing that the Fourth Amendment "specifies only two matters that must be `particularly describ[ed]' in the warrant: `the place to be searched' and `the persons or things to be seized[;]', and that the court has "previously rejected efforts to expand the scope of this provision to embrace unenumerated matters"); see also United States v. Hill, 55 F.3d 479, 481 (9th Cir. 1995) ("[T]he failure to specify an offense did not render the warrant invalid."); United States v. Koyomejian, 970 F.2d 536, 548 (9th Cir. 1992) (concurring opinion) ("I am aware of no constitutional requirement that an applicant for a warrant specify, and the judge determine, the precise statute violated; all authority is to the contrary."). Thus, it would appear that this contention by defendant lacks merit.
Defendant next objects that the information contained in the search warrant affidavit was stale. (Doc. No. 110 at 11-12.) However, the "mere lapse of substantial amounts of time is not controlling in a question of staleness." United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988). Rather, the court must "evaluate staleness in light of the particular facts of the case and the nature of the criminal activity and property sought." United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993) (internal quotation omitted). "The information offered in support of the application for a search warrant is not stale if `there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises.'" United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (quoting United States v. Gann, 732 F.2d 714, 722 (9th Cir. 1984)). Here, the facts presented to establish probable cause for the issuance of the warrant were not limited to the kissing incident involving CV1, but also included other instances of alleged inappropriate touching by defendant. Considering the search warrant affidavit as a whole, and the various reported incidents, the issuing judge had a substantial basis upon which to find probable cause to believe that the defendant was engaged in a pattern of inappropriate touching of female minors that continued to the date of the affidavit. Likewise, this showing would appear to support a conclusion that there was probable cause to believe that the candy bowl—which defendant contends is the only item of property to be seized listed in the search warrant related to the inappropriate touching allegation (Doc. No. 110 at 11)—would be found at the defendant's apartment at the time of the search.
Defendant next challenges the specificity of the search warrant. (Doc. No. 110 at 8-12.) For a search to be reasonable under the Fourth Amendment, the warrant must be specific. United States v. Towne, 997 F.2d 537, 544 (9th Cir. 1993); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856 (9th Cir. 1991). The specificity requirement has two distinct aspects: particularity and breadth. Towne, 997 F.2d at 544; In re Grand Jury Subpoenas, 926 F.2d at 856-57; see also SDI Future Health, Inc., 568 F.3d at 702.
For a warrant to be sufficiently particular, it must make clear to the executing officer what it is that he or she is authorized to search for and seize. See SDI Future Health, 568 F.3d at 702; Spilotro, 800 F.2d at 963 ("The description must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized."). The level of detail required in the warrant to satisfy the particularity requirement "is related to the particular circumstances and the nature of the evidence sought." SDI Future Health, 568 F.3d at 702 (quoting Adjani, 452 F.3d at 1147). Here, assessment of whether this warrant was sufficiently particular is made extremely difficult by the affiant's cutting and pasting of a statement and description of property to be seized from a prior child pornography warrant he had drafted into Attachment B of this warrant, with no connection being drawn in his affidavit between this investigation and that description of property.
With respect to overbreadth, the scope of a search warrant must also be limited to only those items for which there is probable cause. United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980) ("The command to search can never include more than is covered by the showing of probable cause to search.") (quoting United States v. Hinton, 219 F.2d 324, 325 (7th Cir. 1955)); see also United States v. Fries, 781 F.3d 1137, 1151 (9th Cir. 2015); Towne, 997 F.2d at 544 ("[T]he scope of the warrant [must] be limited by the probable cause on which the warrant is based." (internal quotation marks omitted)). Here, defendant alleges that the search warrant was overbroad because it authorized the seizure of evidence related to the possession of child pornography, even though Detective Alvarado's affidavit/statement of probable cause did not allude to any possible crime other than the inappropriate touching of children. (Doc. No. 110 at 10.) Defendant argues that although the affidavit stated that CV2 had reported that he had taken photographs
At the evidentiary hearing Detective Alvarado testified that, based on his training and experience, there was a connection between individuals who commit lewd or lascivious acts against minors and possession of child pornography. (Doc. No. 107 at 65:6-11.) Despite being asked to do so, however, he was unable to identify anywhere in his search warrant affidavit that there were facts provided establishing such a connection. (Id. at 65:6-68:15.) Moreover, as noted above, the Ninth Circuit has held that "a warrant predicated on the bare inference that those who molest children are likely to possess child pornography . . ., alone, does not establish probable cause to search a suspected child molester's home for child pornography."
As the court has concluded above in addressing the Franks violation, under this Ninth Circuit authority, the search warrant at issue here would appear to be clearly overbroad. Needham, Dougherty, and Weber are indistinguishable from the present case. Detective Alvarado's affidavit provided no facts supporting probable cause to believe that child pornography would be found at defendant's apartment. There was no allegation of nudity in the photograph of CV2, and no other information in the affidavit supporting a belief that defendant in fact possessed child pornography apart from affiant's apparent conjecture. Moreover, in Attachment B to the warrant identifying what was to be seized, the affiant apparently described the characteristics of "people who produce, trade, distribute or possess images/pictures of minors engaged in sexually explicit conduct," without ever even identifying defendant as such a person (Doc. No. 85-1 at 4), and with "boilerplate recitations" about the proclivities of such individuals specifically rejected by the Ninth Circuit. See Weber, 923 F.2d at 1345.
Despite all this, it would appear that even if the search warrant affidavit failed to establish probable cause to search for evidence of child pornography here and the warrant was therefore overbroad, suppression of the evidence seized would not be authorized on this ground because the defendant cannot show that the executing officers' reliance on the warrant was objectively unreasonable. See Leon, 468 U.S. at 922-23; Dougherty, 654 F.3d at 899-900; Needham, 718 F.3d at 1195.
Given the court's determination that the Franks violation that occurred in this case requires suppression of the evidence seized pursuant to the warrant, the court need not resolve these additional issues, some much more difficult than others, raised by defendant's challenge to the search warrant.
For the foregoing reasons, defendant's motion to suppress evidence, styled as an amended motion to quash the search warrant (Doc. No. 78), is granted based upon the court's determination that a Franks violation occurred in this case.
Pursuant to the court's August 16, 2018 minute order, this case is set for status conference on September 10, 2018 at 10:00 a.m. in Courtroom 5. (Doc. No. 120.) In another case pending before the undersigned a motion to dismiss based upon an asserted Speedy Trial Act violation is now pending. See United States v. Verduzco-Verduzco, Case No. 17-cr-00231-DAD-BAM, Doc. No. 32. That motion refers somewhat extensively to this action, suggesting that a Speedy Trial Act violation has occurred in this case as well. The court will direct the Clerk of the Court to serve a copy of the motion to dismiss filed in Case No. 17-cr-00231-DAD-BAM, Doc. No. 32 upon defendant Kastis. The court will also direct that the government be prepared to indicate whether it wishes to proceed with the prosecution of this action in light of this order granting defendant's motion to suppress evidence.
For all the reasons set forth above:
