PHYLLIS J. HAMILTON, District Judge.
On August 5, 2015, this matter came on for hearing before the court on the following
Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and for the reasons stated on the record and set forth below, the court DENIES the motions for a bill of particulars; DENIES IN PART the motion for discovery and disclosure of Rule 404(b) evidence and REOPENS IN PART the motion for disclosure of the identity and communications of the confidential informant; DENIES the motion for search and disclosure of electronic surveillance; DENIES the motion to suppress eyewitness identifications filed by Pennymon; and DENIES the motion to suppress evidence seized from illegal search conducted on residential curtilage.
Because the court expects further briefing on the motion for disclosure of the confidential informant, whose communications to law enforcement were relied upon in the search warrant and arrest warrant affidavits, the motions to suppress evidence seized during the search of Apartment 212, seized pursuant to Ellis's arrest, and seized from digital devices remain under submission. The motion to suppress pretrial and in-court identifications filed by Ellis remains pending before the court, and will be taken under submission after the parties file supplemental materials related to the transcripts of audio recordings as set forth below. The application for issuance of a Rule 17(c) subpoena remains under submission, pending a determination by the court whether to grant defendants' request for an evidentiary hearing.
Defendants Purvis Lamar Ellis (aka "B.O.T."), Deante Terrance Kincaid (aka "Tay-Tay"), Damien Edward McDaniel (aka "Famous" and "Lil' Dame"), and Joseph Pennymon (aka "Junkie") are charged with racketeering as associates of the Sem City street gang in East Oakland. Sem City members allegedly conducted activities primarily in the Seminary neighborhood bordered by Seminary Ave., International Blvd., 62nd Ave. and Foothill Blvd.
The indictment alleges that defendants were involved in two specific incidents in furtherance of the racketeering conspiracy. On January 20, 2013, all defendants were
After police responded to Officer K.'s shooting the evening of January 21, 2013, Oakland police secured the apartment complex and obtained search warrants to search Apartments 108, 110 and 212, based on information provided by a confidential informant ("CI"). A separate search warrant for Apartment 112 and an arrest warrant for Ellis were issued that afternoon on January 22, 2013, based in part on information provided by the CI in support of the probable cause affidavits. The search warrant and arrest warrant affidavits are subject to a sealing order issued by the court on November 18, 2014.
At approximately 3:45 p.m. on January 20, 2013, a witness allegedly saw two suspects run after and then shoot a man who had been waiting at the bus stop near 5912 Foothill Boulevard in Oakland. Based on a statement given the day of the shooting, the witness was waiting at a bus stop in front of the diner at 2566 Seminary, at 3:30 p.m. Immediately before going to the bus stop, the witness was in C-Town Smoke Shop, located at 2550 Seminary Avenue at Fortune Boulevard. While in the store, the witness saw an African American male arguing with another man. One of the men was approximately 20 years old, 6', 170 lbs, medium complexion, faded hair with short waves on top, wearing a burgundy leather jacket, blue jeans, and sneakers that matched his jacket. Doc. no. 82, Ex. A (Alvarez report) at REPORTS-DOCUMENTS ("RD") 0012. The witness then left the store and waited at the bus stop in front of Al's Diner (2566 Seminary Avenue).
The witness then saw another black male go into the store, about 17-20 years old, 5'9", medium complexion, wearing a black beanie, black hooded sweater and jeans. He kept walking in and out of the store with the first man in the leather coat. The second man was on the phone saying "Them boys around the corner," and the man in the leather coat asked, "Who? The police?" The man on the phone said yes.
A few minutes later, the witness saw the man in the leather jacket walk to the corner of Seminary and Foothill, looking to the bus stop on the other side of Foothill, where the 40 line stops. The man in the leather jacket came back to the store and nodded to the man in the black hooded sweater and they both went around the corner to Fortune Boulevard. A few seconds later, according to the witness, he saw the man in the black hooded sweater ("Suspect 1") running from Fortune to Foothill Blvd., passing right in front of the witness on Seminary Blvd., and holding a black semi-automatic pistol. When Suspect 1 reached the corner of Foothill Boulevard and Seminary Avenue, the witness saw him shooting at the 40 bus stop on the other side of Foothill Boulevard.
The witness went into the former Tom's Kitchen, located at 5907 Foothill Boulevard, on the corner of Foothill Boulevard and Seminary Avenue. The witness looked out the window and saw a man (Victim 1) running away from the shooter (Suspect 1). The witness also saw a second suspect ("Suspect 2") running toward Seminary Avenue from the direction of 60th Avenue; Suspect 2 also was reported as shooting at the fleeing victim. Suspect
The first shooter ran to where the victim was, but the witness didn't remember if the first shooter shot the victim when he was next to him. The first shooter ran back to the white car on Walnut and got into the backseat behind the driver. The witness wrote the license plate of the white car. The witness described the driver of the vehicle as a "black male in his 20's" who "was dark skinned with dreads past his shoulders, and he had a thick mustache and a thin goatee." Def. Ex. 82-A (Alvarez report) at RD 000013. A police officer showed the witness a picture of a 2012 Dodge Avenger on her tablet device, and the witness confirmed that it was the same as the vehicle that the shooters fled in. The witness heard about 15 gun shots.
From the license plate, the police determined that the car was a Hertz rental car rented to a Laron Means.
At the July 22, 2013 preliminary hearing in the state court proceedings against Kincaid, McDaniel and Pennymon, OPD Officer Eric K. testified about the events on January 21, 2013 leading up to his shooting. The parties have provided various excerpts of the July 22, 2013 Preliminary Hearing transcript. See Kincaid Mot. Suppress Search of Curtilage (doc. no. 73), Ex. A ("Def. Ex. 73-A"); Opp. to Pennymon Mot. Suppr. (doc. no. 97), Ex. A ("Gov't Ex. 97-A").
On January 21, 2013, OPD Officer Eric K. had just finished working the Warriors game, and at around 5:00 or 6:00 pm that evening, Officer K. was asked to drive to 1759 Seminary Ave. to attempt to locate a vehicle that was used in a shooting the night before, based on a tip from an informant that the getaway car from the shooting the day before was located in the parking area. Gov't Ex. 97-A at 3. The vehicle was described as 2012 Dodge Avenger four-door white car with license plate 6VEP025. Opp. to Mot. Suppr. Arrest (doc. no. 99), Ex. A (Ellis Arrest Warrant Affidavit) ("Gov't Ex. 99-A").
Officer K. was acting in an undercover capacity, not driving a marked police car, and he was not wearing a full police uniform, but he was wearing a sweatshirt and uniform pants. Gov't Ex. 97-A at 39; Gov't Ex. 99-A. Officer K. drove past the apartment complex and made a U-Turn to confirm that it was 1759 Seminary. Def. Ex. 73-A at 7. Officer K. noticed a male black (whom he later identified as Pennymon) standing on the southeast corner of the complex who seemed to lean forward to see who was making the U-turn. Def. Ex. 73-A at 8. Officer K. circled around the block, and saw the drive-in gate to the apartment complex was closed, and noticed a Lexus approach the gate, and a passenger got out and manually opened the front gate. Officer K. followed the Lexus into the driveway, and reached the rear parking area of the complex. Id. at 11-12.
Officer K. turned his car around in the parking area and saw the suspect vehicle from the January 20 shooting parked in the rear of the apartment complex, based on the description and license plate. Officer
Officer K. saw three individuals walking down the driveway from the area of the parking lot behind the apartment complex toward his car. Gov't Ex. 97-A at 14. The first suspect (whom Officer K. identified as McDaniel) approached the front passenger door, and he was wearing a multi-colored scarf over his head, black peacoat, black T-shirt and dark baggie jeans. Def. Ex. 73-A at 14-15. A second suspect (identified as Kincaid) walked along the driver's side door and stopped at the driver's side window, and "was wearing a black hooded jacket that was open with a white T-shirt, baggie T-shirt, with black imprints or designs on it and dark dark [sic] jeans." Id. at 15. A third suspect (identified as Pennymon) walked to the driver's side door but stopped at the left rear door. Gov't Ex. 97-A at 16. Pennymon was wearing a hoodie, but nothing was blocking his face, eyes, nose, mouth or chin. Id. at 22.
Officer K. was on the phone with Officer Miller when Kincaid knocked on the window. Def. Ex. 73-A at 17. Officer K. lowered his window, Kincaid asked him "Who's you," and Officer K. told him that he was "looking for a female." Id. at 17. During the initial contact when Kincaid asked Officer K. who is you, Pennymon said, "I seent [sic] you when you made that U-turn in front of the complex." Gov't Ex. 97-A at 42. The timing and course of the conversation is not clear, but Officer K. testified that after he said he was looking for a female, McDaniel asked for a name, so Officer K. came up with a name, Keisha, and McDaniel responded, "There ain't no Keisha here." Def. Ex. 73-A at 17. McDaniel and Kincaid inquired further and were looking inside the car, asking Officer K. who he was talking to on the phone; Officer K. said "at this point Pennymon had [sic] said anything." Id. at 17-18. Officer K. had not yet identified himself as a police officer during this questioning.
Officer K. noticed Kincaid and McDaniel looking inside the car, where Officer K. kept a compact Glock sitting on the center console, partially covered by a booklet but with the rear of the gun uncovered. Def. Ex. 73-A at 20. Officer K. testified that all three suspects brandished three firearms on him, with Kincaid and Pennymon at the driver's side window, no more than one foot away from Officer K., pointing their guns about 4 inches from Officer K.'s head. Gov't Ex. 97-A at 22-23. One firearm "was a dark colored semiautomatic pistol" and the second one was a "chrome and black" semiautomatic. Id. at 23. McDaniel was pointing his gun at Officer K. through the window. Id. at 23.
Officer K. exited his car, and was kept in the V of the door. Id. at 26. He was "looking around the driveway, looking up, looking out windows, not only to see if anybody's out there, but also to look at additional possible threats besides the three that I have." Id. at 26. He was paying attention to the three individuals "[b]ecause I know at some point if I do recover from the incident, I would have to identify them." Id. at 26. He was looking at "height, weight, facial features, build, demeanor, firearms." Id.
Officer K. carried a gun holstered on his duty belt, and Kincaid told Officer K. to "give it up" or hand over his gun. Id. at 28. McDaniel was unable to remove Officer K.'s holster or firearm from the holster, and wrestled with Officer K. for the gun. First Kincaid pistol-whipped Officer
McDaniel appeared to get frustrated because he wasn't able to remove Officer K.'s gun from the holster, and pointed his firearm toward Officer K.'s forearm, and fired one round. Officer K. was shot in his left wrist. At that point, Officer K. told them "I'm the police"; "5-0"; I'm a cop." Id. at 39. Kincaid put his pistol on the bridge of Officer K.'s nose and said "I don't care if you're the police." Id. Kincaid and Pennymon pistol-whipped him again, about once or twice each, and then they fled. Id. at 41-42. McDaniel tried to run off, but Officer K. struggled with him, and he slid out of his jacket and ran off as Officer K. saw the first patrol unit arrive on scene. During the struggle, the suspects allegedly took two pistols from Officer K.
As McDaniel fled, responding officers arrived and Officer K. was transported to the hospital.
At the hospital, Officer K. was treated for a gunshot wound to the left forearm and three lacerations on the top left of his head, resulting in about 13 or 14 stitches. Gov't Ex. 97-A at 45. He was released by 1:00 am on January 22, 2013. Officer K. was given morphine, then was visited by family at the hospital. He was fine until his baby sister came in the room, at which point he became emotional. Id. at 46-47.
OPD Officers Basa, Milina, Sanchez and Nolan came to the hospital on January 21, 2013, while the family was visiting. After Officer K.'s sister arrived and after he was given morphine, the officers showed Officer K. a photographic lineup at around 9:18 pm. Id. at 47-48. The lineup included photos of Pennymon and five other men, and Officer K. did not identify him as an assailant. Pennymon Mot. Suppr. (doc. no. 71), Ex. A ("Def. Ex. 71-A"); Gov't Ex. 97-B.
Two days later, January 24, 2013, at the Criminal Investigation Division, police showed Officer K. three more photo arrays. One array included Kincaid and five other men. The second array included McDaniel and five other men. The third array included J.B., who was then a suspect, and five other men. None of those arrays shown on January 24 included Pennymon's photograph. Officer K. identified Kincaid and McDaniel, and not J.B. Opp. to Pennymon Mot. Suppr. (doc. no. 97), Ex. D (Brandwood Decl.).
On February 21, 2013, police showed Officer K. another six-pack photo lineup that included Pennymon's most recent booking photograph. Officer K. requested that black hooded sweatshirts be added over the faces because the third assailant wore a hoodie that covered his face throughout the duration of the shooting. Pennymon Mot. Suppr. (doc. no. 71) at 5. Officer K. identified Pennymon, in position number 3, in the photo array. Gov't Ex. 97-A at 52.
The Incident Recall CAD provides the following timeline of the searches of the apartments. Opp. to Mot. Suppr. Apt. Search (doc. no. 95), Ex. A ("Gov't Ex. 95-A").
January 21, 2013
January 22, 2013
Pursuant to a search warrant, Oakland police conducted a search of 1759 Seminary Ave., Apartments 108, 110 and 212. The search of Apartment 212 was conducted by OPD Officers Milina, Rosin, and Gonzales. Gov't Ex. 95-C. Among other things, Officer Milina found three pistols, including both handguns taken from Officer K. Gov't Ex. 95-C. Keys to the Dodge Avenger rental car were also found in the apartment. Id. Cell phones and boxer shorts — which contained DNA consistent
The search warrant affidavit by Officer Jason Anderson, which is subject to a sealing order, summarized the shooting of Officer K. and presented the following facts in support of the search warrant application to search Apartments 108, 110 and 212, as redacted by the government:
Mot. Suppr. Apt. Search (doc. no. 81), Ex. A ("Def. Ex. 81-A") (search warrant affidavit). A separate search warrant was issued at 12:10 pm on January 22, 2013, to authorize the search of Apartment 112.
Around 11:00 am on January 22, 2013, Ellis and several other individuals were arrested by OPD Tactical Team in Apartment 112 at 1759 Seminary Ave. Mot. Suppr. Digital Devices (doc. no. 79), Ex. B (Officer Milina's report) ("Def. Ex. 79-B") at RD 00351. Ellis was handcuffed and taken outside to a cage car. He was searched, with his belongings placed in a manila envelope, and placed in the rear of the police car driven by Officers Seay and Cumby. Def. Ex. 79-A. "A moment later, Ofc. R. Johnson asked if ELLIS was in possession of any mobile phones. Ofc. Fesmire told Ofc. Johnson that ELLIS did have a phone and that it was with his property and inside OPD Vehicle # 1203. Sgt. G. Porritt advised that he recovered a mobile phone from ELLIS's person when he was detained." Id. at RD-0088.
At 11:35 am, Ellis was brought to CID and Officer Gumby gave Officer Milina Ellis' personal belongings, including an iPhone 5 and a ZTE model 910 cell phone. Def. Ex. 79-B at RD-00351.
An arrest warrant was issued for Ellis on January 22, 2013, 12:20 pm. Mot. Suppr. Arrest (doc. no. 77), Ex. A ("Def. Ex. 77-A"). The supporting probable cause affidavit by OPD Sergeant Nolan alleged the same background facts as the search warrant affidavit and also stated what was found during the search of the apartments: the two Glock handguns that were taken from Officer K. were recovered from Apartment 212, which was attributed to Ellis. The affiant stated that the recovery of the firearms combined with the information from the confidential informant tended to indicate that Ellis had involvement in the assault and attempted murder of Officer K. Def. Ex. 77-B. The affiant also knew from past investigations that Ellis was associated with the extremely violent Gas Team gang years ago, that his name has been associated with gangs known to commit shootings with great regularity, and that search warrants have been served on Ellis that yielded firearms in the past. The affidavit also stated that in past investigations, Ellis was the target of wiretaps.
The Ellis arrest warrant affidavit referred to a prior conviction for possession of assault rifles:
Gov't Ex. 99-A. The Oakland Police Department records show that on June 6, 2008, police officers contacted Ellis who was a possible suspect in a murder investigation, and arrested Ellis after conducting a pat down search for weapons and finding suspected rock cocaine and a large amount of cash. Police searched Ellis' car and found a loaded 9mm handgun under the driver's seat where Ellis was sitting. Police obtained a search warrant later that day to search Ellis' residence at 5931 Bromley Apt. A and a 1995 Lexus license 5BDY111. Police recovered 3 assault rifles from the trunk of the Lexus, and a 9mm handgun and ammunition from the apartment. Gov't Ex. 99-B (page 25 of 44).
Ellis was charged in state court with being a felon in possession of a firearm. Ellis's attorney in the state-court proceedings made repeated requests for the affidavit to the search warrant for Apartment 212. Ellis's then-attorney filed a motion seeking the affidavits. Not long after that motion was filed, and before the search warrant affidavits were produced, the Alameda County District Attorney's office dismissed all charges against Ellis and he was released from custody. In December 2013, Ellis and his three co-defendants were indicted in the present case by the federal government. Defendants are charged as follows:
All defendants move for a bill of particulars: Ellis filed a motion for a bill of particulars on his own behalf; McDaniel filed a motion for a bill of particulars on behalf of all defendants; and Kincaid filed a motion to dismiss, or, in the alternative, for a bill of particulars, on behalf of all defendants. The government filed a consolidated opposition brief to address all three motions for bill of particulars. Doc. no. 104. Because the issues raised in the three motions overlap, the court addressed the motions collectively at the hearing and ruled on the motions as summarized below.
1. Defendants' motion for a bill of particulars to specify when each defendant joined the alleged conspiracy is DENIED. Defendants are not entitled to a bill of particulars to seek "complete discovery of the government's evidence, which is not a purpose of the bill of particulars." United States v. Giese, 597 F.2d 1170, 1181 (9th Cir.1979). With respect to the racketeering conspiracy charged in Count One, the indictment alleges that the racketeering conspiracy existed from "at least in or about 2007," through December 2013. Indictment ¶ 9. The Ninth Circuit has recognized that "uncertainty regarding a conspiracy's beginning and ending dates does not render an indictment fatally defective so long as overt acts alleged in the indictment adequately limit the time frame of the conspiracy." United States v. Forrester, 616 F.3d 929, 941 (9th Cir.2010). Unlike other cases prosecuted in this district alleging several different conspiracies and vague time frames, the indictment here specifies a beginning and end date for the alleged conspiracy, which spanned an 8-year period, and refers to racketeering activity for an alleged gang, Sem City, that occurred during that discrete time frame. Cf. United States v. Alvarez, No. 14-CR-00120 EMC (NC), 2014 WL 7240670 (N.D.Cal. Dec. 19, 2014) (granting in part the defendants' motion for bill of particulars where the superseding indictment charged three different conspiracies, including "a conspiracy with a long and vague time period (since at least the early 1990s) and [] a conspiracy that involves members of two affiliated organizations"); United States v. Cerna, No. CR 08-0730 WHA, 2009 WL 2998929 (N.D.Cal. Sept. 16, 2009) (ordering the government to provide a bill of particulars clarifying when each defendant is alleged to have first joined each conspiracy, where the government charged 24 of the total 31 defendants with three separate conspiracy counts and the three conspiracies were alleged to have been in existence since "at least the late
2. Defendants' request for the names of alleged members, shooters, leaders, employees and associates of Sem City is DENIED. The Ninth Circuit has expressly held that a bill of particulars is not required to identify some of the exact details sought by defendants, holding that a bill of particulars is not warranted to provide the following kinds of details: "(1) to obtain the names of any unknown coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity." United States v. DiCesare, 765 F.2d 890, 897-98 (9th Cir.1985) (citing United States v. Long, 449 F.2d 288, 294-95 (8th Cir. 1971) (exact times); Wilkins v. United States, 376 F.2d 552, 562-63 (5th Cir.1967) (names of all coconspirators); Cook v. United States, 354 F.2d 529, 531 (9th Cir. 1965) (all overt acts)), amended on other grounds, 777 F.2d 543 (9th Cir.1985).
3. Ellis's motion for a bill of particulars to identify the "specific effect on interstate commerce of the alleged enterprise" is DENIED. Ellis Mot. Bill Part. (doc. no. 83) at 1. Ninth Circuit authority does not require that the indictment plead evidentiary detail such as how interstate commerce was interfered with, or the theory of interstate impact. United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004) (citing United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995)). "In the Ninth Circuit `[t]he use of a "bare bones" information — that is one employing the statutory language alone — is quite common and entirely permissible so long as the statute sets forth fully, directly and clearly all essential elements of the crime to be punished.'" Woodruff, 50 F.3d at 676 (quoting United States v. Crow, 824 F.2d 761, 762 (9th Cir.1987)).
4. Defendants' motion for a bill of particulars is DENIED with respect to their request for identifying information about the racketeering acts which comprised the enterprise's pattern of racketeering activity, as alleged in Count One — Racketeering Conspiracy. The court determines that the indictment sets forth the elements of the offenses and sufficiently alleges a violation of § 1962(d). See United States v. Martinez, 657 F.3d 811, 816 (9th Cir.2011) (to convict a defendant of RICO conspiracy under § 1962(d), "the government's burden was only to show his assent to the conspiracy and the acts furthering its end") (citing Salinas v. United States, 522 U.S. 52, 63-66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997)); United States v. Fernandez, 388 F.3d 1199, 1219-20 (9th Cir. 2004) ("an indictment setting forth the elements of the offense is generally sufficient"), modified, 425 F.3d 1248 (9th Cir. 2005). However, the government is ORDERED to make disclosures that it agreed to provide, specifying the overt acts and the acts comprising the pattern of racketeering activity alleged in Count One. Accordingly, the government shall provide details, including dates, whether charges were filed, and whether convictions were entered, with respect to the racketeering activity alleged in ¶ 9 of Count One of the indictment, as reiterated in ¶ 15 of Count Two: murder, robbery, distribution of controlled substances, sex trafficking of minors, enticement of minor to engage in prostitution, and fraud in connection with identification documents and with access devices. The government shall provide these disclosures within thirty days of the date of this order.
See Fernandez, 388 F.3d at 1219-20 (citing United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir.1995); United States v. Vasquez-Velasco, 15 F.3d 833, 842 (9th Cir.1994)). The evidentiary details sought by defendants, such as "the basic who, what, when, where and why of the crimes alleged," fall within the scope of discovery and do not warrant a bill of particulars. Full discovery "obviates the need for a bill of particulars." Giese, 597 F.2d at 1180. To the extent that the § 1959 counts incorporate the allegations of overt acts and racketeering activity in Count One, the government is ORDERED to disclose specifying information about those acts, as it agreed to provide, within thirty days of the date of this order.
Defendants' motions for a bill of particulars to specify when each defendant joined Sem City, to allow the defense to determine whether coconspirator statements may be admitted against them pursuant to FRE 801(d)(2)(E), is DENIED. In advance of trial, the court will issue its standard protocol requiring the government to provide notice of coconspirator statements to be introduced at trial. The protocol will be similar, but not necessarily identical, to the protocol established by the court in United States v. Zaragoza, et al., No. CR 08-83 PJH, doc. no. 576 (Amended Pretrial Order, July 29, 2010). Given that a trial date has not yet been set, and discovery is ongoing, disclosure of coconspirator statements is not required at this juncture.
Defendants' motions for a bill of particulars to specify which defendants are principals, and who are aiders and abettors, are DENIED. The indictment may charge a defendant with being both a principal and an aider and abettor. United States v. Armstrong, 909 F.2d 1238, 1241 (9th Cir.1990) ("[a]iding and abetting is implied in every federal indictment for a substantive offense") (citing United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988)). See 18 U.S.C. § 2. To address defendants' argument that the lack of specifics fails to ensure that the crimes charged by the grand jury will be the same specific crimes presented to the petit jury at trial, the court determines that the indictment does not, on this record, present a risk that any defendant would be convicted of a crime different than the ones charged by the grand jury. Cf. United
Defendants' motion for a bill of particulars to provide notice of the government's theory of criminal liability, in order to prepare and defend against the special sentencing factors, is DENIED. The government is not required to disclose its theory of liability as to each defendant in a bill of particulars, as long as full discovery is provided to the defense. United States v. Buckner, 610 F.2d 570, 574 (9th Cir. 1979) ("Assuming, as we do, that all relevant facts were disclosed and available, the government is not obliged to disclose the theory under which it will proceed.").
Defendants' motion for a bill of particulars to specify the firearm(s) charged in Counts Five and Seven, and to specify whether a firearm was used, brandished or discharged, and by whom, is DENIED. The facts alleged in the indictment, including the specific incidents when the firearms were allegedly used in furtherance of a crime of violence, as well as the police reports related to each incident and the search returns specifying which guns were recovered, are sufficient to put defendants on notice of the charges against them.
Defendants' motion for a bill of particulars to specify the prior felony conviction that Kincaid and McDaniel suffered, as alleged in Counts Eight and Nine, is DENIED in light of the government's undisputed representation that it has provided discovery regarding defendants' prior criminal history, including their rap sheets.
At the hearing on defendants' motion to compel discovery, for disclosure whether the government will introduce evidence of Ellis's prior arrest or other acts pursuant to FRE 404(b), and for disclosure of the confidential informant's identity, the government gave notice that it would seek introduction of defendant Ellis's prior arrests pursuant to FRE 404(b) and on other grounds. The government indicated that it will produce wiretap evidence related to the June 2008 investigation of Ellis, which led to his arrest and a conviction, after conducting confidentiality review. As the court ordered at the hearing, the government shall provide the wiretap evidence within thirty days, and all other potential FRE 404(b) evidence related to Ellis's prior arrests and conviction, within sixty days, of the hearing.
Now that the court understands the extent to which the government has relied on the content of the CI's communications in opposition to several motions to suppress, and defendants have articulated a need for disclosure of the content of the CI's communications to challenge the probable cause affidavits, the court will reconsider defendants' motion for disclosure. The court is concerned with the lack of a record addressing the advisability of continued nondisclosure and will reopen the briefing to give the parties an opportunity to address the factors that the court must consider in determining whether an informant's identity and/or communications should be disclosed, such as (1) the degree of the informant's involvement in the criminal activity; (2) the relationship between the defendant's asserted defense and the likely testimony of the informant; and (3) the government's interest in non-disclosure. United States v. Gonzalo Beltran, 915 F.2d 487, 488-89 (9th Cir.1990) (per curiam).
As ordered at the hearing, the government shall file a supplemental brief to state its position on the record, with supporting legal authority and factual assertions, for continuing to withhold the confidential informant's identity and/or communications in light of the arguments made in the pending motions to suppress. These issues are not fully addressed by either party in the motions for disclosure. The government is directed to address the following issues in its supplemental brief:
The court is particularly concerned about the following issue: even if the informant was not a percipient witness to either of the shootings alleged in this case, it is important to know if the informant was a witness to any other wrongs, acts or crimes that comprise the racketeering activity. Because those wrongs, acts or crimes are not described in the indictment or elsewhere, it is impossible to understand the informant's full role and to balance the interests required under Roviaro v. United States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). As directed at the hearing, the parties shall meet and confer on a briefing schedule, with the government to file its supplemental brief on September 9 or September 16, 2015. The parties shall contact the court's courtroom deputy to set the matter on the court's calendar for further argument.
Defendants' motion for an order compelling the government to search for and disclose all information related to electronic surveillance of defendants or any evidence obtained related to this case as a result of electronic surveillance is DENIED AS MOOT in light of the government's disclosures. The parties are ordered to meet and confer on further discovery requests related to the disclosures about the use of electronic surveillance. The government shall complete production responsive to those requests within sixty days of the hearing, unless the parties agree to a later deadline.
1. As stated on the record, Pennymon's motion to suppress eyewitness identifications is DENIED. Doc. no. 71. Having reviewed the photo arrays that included Pennymon's photo, the court finds that all the individuals in the February 21 photo array appear to be in the similar age group, and at least 4 of the 6 have a similar complexion. The court concludes that Pennymon did not stand out among the other individuals in the photo array and that the identification procedure was not impermissibly suggestive. In particular, the court finds that the fact that hoods were added to all the photos in the second photo array made the identification procedure more reliable, not suggestive. The officer's inability to identify Pennymon from the first photo array on the night of the shooting was reasonable under the circumstances, including morphine treatment the officer was receiving, and does not render the later identification unreliable.
Even if the second photo array was somehow suggestive, the court determines that the identification was nonetheless reliable under the factors set forth in Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See also United States v. Love, 746 F.2d 477, 478 (9th Cir.1984). The record shows that Officer K. had close, albeit brief, contact with Pennymon and provided details about his appearance. More importantly, Officer K. demonstrated a high degree of attention and was specially trained to observe details. Under the totality of the circumstances, the court finds sufficient indicia of reliability to determine that there was no substantial likelihood of misidentification.
2. Ellis's motion to suppress pretrial and in-court identifications remains pending.
Defendants' motion to suppress all evidence seized from an illegal search conducted on residential curtilage is DENIED. Doc. no. 73. Defendants contend that Officer K. trespassed by entering uninvited onto the apartment driveway and parking lot, which they contend lie within the curtilage of the apartment building, in violation of the Fourth Amendment under the trespass test as set forth in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 954, 181 L.Ed.2d 911 (2012). Proceeding under the trespass theory, rather than the reasonable expectation of privacy theory, defendants have not demonstrated that they have a possessory interest in the driveway or parking lot to establish standing to assert a Fourth Amendment violation. See Rakas v. Illinois, 439 U.S. 128, 132 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("the proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure."). To establish a property right in the common areas of the apartment complex, defendants must show that they have the right to exclude others. Id. at 144 n. 12, 99 S.Ct. 421 ("One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.") (citation omitted).
Although there is no Ninth Circuit authority post-Jones addressing an apartment tenant's right to exclude law enforcement and other non-tenants from common areas under the trespassory test, the Ninth Circuit has expressly held that "an apartment dweller has no reasonable expectation of privacy in the common areas of the building whether the officer trespasses or not." United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.1993) (citations omitted). The Ninth Circuit expressly rejected the minority view held by United States v. Carriger, 541 F.2d 545, 549 (6th Cir.1976), on which defendants rely. Nohara, 3 F.3d at 1242. See also United States v. Roberts, 747 F.2d 537, 542 (9th Cir.1984) (a homeowner had no reasonable expectation of privacy in a shared unobstructed private road because he "had no control over the five other homeowners: they could have invited anyone, including police officers, to drive up the road").
Defendants cite authority under state and local civil law in support of their argument that tenants have a possessory interest in common areas of an apartment building. However, the state court decisions cited by defendants do not extend a tenant's right to exclude others to encompass common areas beyond their own leased apartment or residence. See Friends of the Trails v. Blasius, 78 Cal.App.4th 810, 830, 93 Cal.Rptr.2d 193 (2000) (affirming judgment against irrigation district and landowners establishing public easement for recreational trail on portion of irrigation district's canal easement, and distinguishing authority recognizing that a
In support of their argument that, under California law, tenants of an apartment complex have possessory interests in common areas, defendants cite a city ordinance defining a "Rental Unit" as "any unit in any real property ... including the land appurtenant thereto, that is rented or available for rent for residential use or occupancy ... together with all housing services connected with use or occupancy of such property, such as common areas and recreational facilities held out for use by the tenant." Reply (doc. no. 116) at 4 (citing Oakland Municipal Code, Code of Ordinances, Section 8.22.340 (Ord. 12537 § 1 (part), 2003)
Similarly, in People v. Howard, 63 Cal.App.3d 249, 254-55, 133 Cal.Rptr. 689 (1976), the court held that even when officers enter the common area through a locked outside door, where the manager gave the key to the police, there is no trespass in violation of the Sixth Amendment guarantee against unreasonable search and seizure, stating that a locked outside door does not establish the same sanctity for a common hallway as is established for the individual apartment. The court in Howard implied that an individual tenant does not have the right to exclude others from the shared common areas of the apartment building: "Appellant cannot presume to control the right of other tenants, or particularly the manager as the owner's agent, to authorize entry to the building's common areas by non-tenants." 63 Cal.App.3d at 254, 133 Cal.Rptr. 689. See also People v. Terry, 70 Cal.2d 410, 427, 77 Cal.Rptr. 460, 454 P.2d 36 (1969) ("Police officers in the performance of their duties may, without violating the Constitution, peaceably enter upon the common hallway of an apartment building without a warrant or express permission to do so."). In light of this authority, defendants fail to show that state law recognizes a tenant's right to exclude others from common areas of an apartment building.
As defendants conceded during oral argument, a shared driveway to an apartment building or a shared parking lot is not protected as curtilage under established authority. Defendants cite no authority extending Fourth Amendment protection to the shared driveway or parking lot of an apartment complex. To support their argument that Officer K.'s entry into the driveway and parking lot was a trespassory search, defendants cite state court authority recognizing the right of private parking lot owners and building tenants to prohibit trespass or pursue prosecution for trespass. However, these authorities do not address tenants' possessory rights in, or their right to exclude others from, a common driveway or shared parking lot such as the common areas at issue here, particularly where the tenants have not shown that they were authorized to restrict entry to the shared parking lot or use of the parking spaces. See Planned Parenthood v. Wilson, 234 Cal.App.3d 1662, 1671, 286 Cal.Rptr. 427 (1991) (rejecting a First Amendment challenge to Planned Parenthood's injunction restricting anti-abortion demonstrators from blocking a parking lot to a privately owned and operated medical plaza which lacked attributes of a public forum, where the medical center owner instructed Planned Parenthood to post "No Trespassing" signs throughout the parking lot and each parking space within the lot was specifically designated for either patients or employees of tenants only); In re Ball, 23 Cal.App.3d 380, 386, 100 Cal.Rptr. 189 (Cal.Ct.App.1972) (upholding conviction of
Even if defendants had standing to raise a Fourth Amendment challenge and Officer K.'s entry into the driveway and parking lot constituted a trespass, the Fourth Amendment does not protect against mere technical trespass. As Justice Scalia, writing for the majority of the Court in Jones, noted, "our theory is not that the Fourth Amendment is concerned with `any technical trespass that led to the gathering of evidence.' The Fourth Amendment protects against trespassory searches only with regard to those items (`persons, houses, papers, and effects') that it enumerates." Jones, 132 S. Ct. at 953 n. 8 (citing Jones, 132 S. Ct. at 958 (Alito, J., concurring)). In a concurring opinion, Justice Alito anticipated, and rebutted, the argument raised by defendants here, that reviving the trespassory test "based on 18th-century tort law" would extend Fourth Amendment protections to any technical trespass on private property:
Jones, 132 S.Ct. at 958 (Alito, J., concurring) (citing Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924)). To address Justice Alito's concerns that a trespass-based test could be construed to extend Fourth Amendment protection to a technical trespass under common law, Justice Scalia distinguished the use of a GPS tracking device installed on the undercarriage of a vehicle, held to be unconstitutional in Jones, from the trespass that occurred in Oliver, where the Court held that "officers' information-gathering intrusion on an `open field' did not constitute a Fourth Amendment search, even though it was a trespass at common law." Jones, 132 S.Ct. at 953. Justice Scalia noted that an open field, "unlike the curtilage of a home, [] is not one of those protected areas enumerated in the Fourth Amendment," and that trespass onto a privately owned open field "may properly be understood as a `search,' but not one `in the constitutional sense.'" Id. at 953 and n. 8 (citing Oliver, 466 U.S. at 170, 183, 104 S.Ct. 1735; United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). See Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) ("When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a "search" within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'") (quoting Jones, 132 S.Ct. at 950-51 n. 3).
In light of this authority recognizing that the Fourth Amendment has been
Alternatively, the motion to suppress is DENIED on the separate ground that law enforcement's discovery of the getaway car's presence in the parking lot was independent of Officer K.'s observation of the getaway car, when police responded to the shooting of Officer K. in the driveway. See Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ("The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation."). The government has sufficiently distinguished the initial search from the subsequent shooting to support an exception to the exclusionary rule under the independent source doctrine. Once Officer K. was shot, the responding officers secured a perimeter around the apartment complex and began looking for suspects. The government has shown that investigation of Officer K.'s shooting was an independent source of the discovery of the getaway vehicle in the parking lot, as well as any evidence discovered in the search of the apartments. The record shows that the police arrived at the parking lot in response to the officer shooting, and there is no reason to infer that the police arrived in response to Officer K.'s observation of the getaway vehicle. Furthermore, based on information related to Officer K.'s shooting, as well as the responding officer's observation of the getaway car, the police obtained search warrants to search the car and several apartment units. Thus, the court concludes that the search of the apartments was conducted as a direct result of the assault on Officer K., which was "wholly independent" of Officer K.'s initial observation of the getaway vehicle.
The court will address defendants' challenges to the search warrants in a separate order ruling on the pending motions to suppress.
Having ruled on the motions for a bill of particulars; the motion for discovery and disclosure of Rule 404(b) evidence; the motion for search and disclosure of electronic surveillance; the motion to suppress eyewitness identifications filed by Pennymon; and the motion to suppress evidence seized from illegal search conducted on residential curtilage, the court will rule on the motions that remain pending as follows:
