Case 3:17-cr-00093-WHA Document 332 Filed 12/14/18 Page 1 of 7

1 ALEX G. TSE (CABN 152348)

United States Attorney
2
BARBARA J. VALLIERE (DCBN 439353)
3 Chief, Criminal Division

4 MEREDITH B. OSBORN (CABN 250467)

WILLIAM FRENTZEN (LABN 24421)
5 Assistant United States Attorneys

6 450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495
7 Telephone: (415) 436-6774
[email protected]
8
Attorneys for United States of America
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
SAN FRANCISCO DIVISION
12

13 UNITED STATES OF AMERICA, ) CASE NO: CR 17-00093 WHA

)
14 Plaintiff, )
) UNITED STATES’ OPPOSITION TO
15 v. ) DEFENDANT ETIENNE’S MOTION TO
) SUPPRESS #2; SEARCH OF VEHICLE AND
16 MARCUS ETIENNE, ) PHONES ON DECEMBER 5 AND 6, 2016
)
17 ELIZABETH GOBERT, ) Hearing Date: December 20, 2018
) Time: 1:00 p.m.
18 CRAIG MARSHALL, AND ) Courtroom 12, 19th Floor
)
19 MARIO ROBINSON, )
)
20 Defendants. )

21

22

23 INTRODUCTION
24 Defendant Etienne has filed an untimely motion to suppress the search of his vehicle after a
25 traffic stop that took place on December 5, 2016. ECF No. 307. Etienne also moves to suppress the

26 search of his phones that were seized during that stop, and that was conducted pursuant to a search

27 warrant issued by a St. Martin Parish Judge in the state of Louisiana. Id. Defendant’s motion should be

28 denied as untimely, but it also lacks a basis in fact or law.

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1 FACTUAL BACKGROUND

2 As described in the police report, which defendant Etienne does not contest, Detective Logan

3 Kartchner of the St. Landry Parish Office, saw defendant Etienne driving down the highway in

4 Opelousas, Louisiana, on December 5, 2016. ECF No. 307-1. Detective Kartchner was familiar with

5 Etienne, as he had previously stopped him on May 12 of the same year. Detective Kartchner, who has

6 testified before this Court, knew that Etienne had an active warrant out for his arrest. He also noted that

7 Etienne was not wearing his seatbelt. Detective Kartchner therefore initiated a traffic stop.

8 When the vehicles came to a stop, Detective Kartchner saw Etienne and his passenger “moving

9 significantly in the car.” ECF No. 307-1 at 2. Detective Kartchner asked Etienne to get out of the
10 vehicle, placed him in restraints, and asked him whether he had any weapons on his person. Etienne

11 responded that he had marijuana in his left front pocket. Detective Kartchner then removed a clear

12 plastic bag of marijuana from Etienne’s left front pocket, along with a Samsung flip cellular phone.

13 Detective Kartchner then approached the passenger side window to speak with the passenger.

14 He smelled marijuana odor coming from the vehicle. Detective Kartchner then decided to search the

15 vehicle.

16 Detective Kartchner found two white Styrofoam cups containing suspected liquid promethazine

17 (cough syrup), a LG smart phone, four empty medicine bottles, and another clear bag containing

18 suspected marijuana.

19 On December 6, 2016, Detective Cory Winmill of the Parish of St. Landry, executed a search

20 warrant application for the search of “multiple mobile telephones in the possession of Marcus Etienne.”

21 ECF No. 307-2. Detective Winmill stated that Etienne was arrested with codeine and $15,000 in U.S.

22 Currency on May 2016, and arrested on drug charges in July 2016. ECF No. 307-2 at 6. Detective

23 Winmill also attested that Etienne was arrested with marijuana on December 5, 2016, and that he was

24 currently under investigation by the FBI and DEA. Id. Detective Winmill also stated that Etienne had

25 “admitted to supplying the Acadian area with Hydroponic marijuana” in May 2016. Id. Detective

26 Winmill also attested that based on his training and experience, cell phones used by criminals often

27 contain evidence of their activities, including photographs of contraband, narcotics, and weapons. Id. at

28 3.

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1 The warrant application and search warrant were both signed by Judge Anthony Thibodeaux of

2 the 16th Judicial District of the State of Louisiana. The warrant authorized the search of 509 Margaret

3 Street, St. Martinville, LA, and “[a]ny and all electronic devices” including “Multiple mobile phone[]s

4 in possession of Marcus Etienne.” ECF No. 307 at 10.

5 ARGUMENT

6 I. Etienne’s Motion to Suppress The December 5, 2016 Search of His Car and Seized Phones
is Untimely
7

8 The government produced the search warrant for Etienne’s phones seized during the traffic stop

9 to defendant Etienne on March 27, 2017. Exhibit A (Ltr Dated March 27, 2017). The government
10 produced the state police reports related to the December 5, 2016, arrest, on May 21, 2018. Exhibit B

11 (Ltr Dated May 21, 2018). Under these circumstances, defendant Etienne’s failure to timely file this

12 motion to suppress under the Court’s scheduling order is inexcusable. The Court can deny defendant’s

13 motion on this basis alone. See United States v. Wardlow, 951 F.2d 1115, 1116 (9th Cir. 1991) (holding

14 that district court did not abuse its discretion in denying defendant’s motion to reconsideration of the

15 denial of the suppression motion in light of lack of timeliness).

16 II. The Warrantless Search of Etienne’s Car Was Lawful

17 a. The Officers Had Probable Cause to Believe the Vehicle in Which Etienne Was
Driving Contained Contraband
18

19 The Supreme Court has long held that police officers may conduct warrantless searches of

20 automobiles where they have probable cause to believe the vehicle contains contraband. Carroll v.

21 United States, 267 U.S. 132 (1925). The Supreme Court extended this holding in United States v. Ross,

22 456 U.S. 798 (1982) to hold that, “police officers – who have legitimately stopped an automobile and

23 who have probable cause to believe that contraband is concealed somewhere within it – may conduct a

24 probing search of compartments and containers within the vehicle whose contents are not in plain view.”

25 Id. at 800. The Supreme Court went on to hold that officers, “may conduct a search of the vehicle that is

26 as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be

27 searched.” Id. Because this search falls within the vehicle exception to the Fourth Amendment’s

28 warrant requirement, Etienne’s argument based on Arizona v. Gant, 556 U.S. 332 (2009), is misplaced.

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1 As the Ninth Circuit recently held, “Unlike search incident to arrest, the vehicle exception is not rooted

2 in arrest and the Chimel rationales of preventing arrestees from harming officers and destroying

3 evidence.” United States v. Camou, 773 F.3d 932, 941 (9th Cir. 2014). Rather, “the vehicle exception is

4 motivated by the supposedly lower expectation of privacy individuals have in their vehicles as well as

5 the mobility of vehicles, which allows evidence contained within those vehicles to be easily concealed

6 from the police.” Id.

7 Here, the officers clearly had probable cause to believe that the vehicle contained contraband

8 based on the marijuana contained in defendant Etienne’s pockets and the odor of marijuana emitting

9 from the vehicle. See ECF No. 307-1 at 2-3. The Ninth Circuit has held that the odor of marijuana
10 emanating from a vehicle alone is “sufficient to constitute probable cause for a subsequent search for

11 marijuana.” United States v. Barron, 472 F.2d 1215, 1217 (9th Cir. 1973); see also United States v.

12 Johnson, 224 F. Supp. 3d 881, 891 (N.D. Cal. 2016) (finding that officer had probable cause to believe

13 vehicle was likely to contain evidence of marijuana possession and distribution when he “smelled fresh

14 and burnt marijuana emanating from the vehicle”).

15 III. The Search of Etienne’s Phones Did Not Violate the Fourth Amendment

16 As a preliminary matter, for the reasons explained above, the search of defendant Etienne’s car

17 was lawful. Therefore, the seizure of his cell phones was not “the fruit of the poisonous tree.” See

18 Wong Sun v. United States, 371 U.S. 471 (1963). As a matter of fact, however, even if the search of the

19 vehicle was unlawful under the Fourth Amendment, the Samsung flip phone was found on Etienne’s

20 person. Therefore, it cannot be considered fruits of the search of his vehicle. Defendant Etienne does

21 not challenge the validity of his arrest on an outstanding search warrant, and therefore the search of his

22 person incident to that arrest was also lawful.

23 Separately, the seizure of the silver LG phone found in the vehicle is also not fruits of the

24 poisonous tree under the attenuation doctrine. “Evidence is admissible when the connection between

25 unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening

26 circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would

27 not be served by suppression of the evidence obtained.’” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016)

28 (quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)). When determining whether the issuance of a

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1 valid search warrant is sufficient to “break the casual chain” between an unlawful act and the discovery

2 of evidence, the Court must weigh three factors: (1) temporal proximity; (2) intervening circumstances;

3 and (3) “the purpose and flagrancy of the official misconduct.” Id. at 2062 (internal quotations omitted).

4 Here, all three factors weigh in favor of finding attenuation here. First, the search of phones took place a

5 day after the allegedly unlawful seizure, and only after the officers had obtained a search warrant.

6 Second, the officers’ search of the vehicle was not flagrantly unlawful – indeed, as described above, it

7 was not unlawful at all. Thus, even if this Court were to find the search of the vehicle unlawful, it

8 should not suppress the search of the silver LG phone seized during that search.

9 a. The Warrant Was Not Facially Invalid

10 Defendant Etienne claims that the warrant for the search of Etienne’s cell phones was facially

11 invalid under Groh v. Ramirez, 540 U.S. 551 (2004). There, the Supreme Court held that a warrant that

12 “did not incorporate other documents by reference, nor did either the affidavit or the application (which

13 had been placed under seal) accompany the warrant” was facially invalid. Groh, 540 U.S. at 558. Here,

14 however, the search warrant does incorporate Detective Winmill’s affidavit, the affidavit is attached to

15 the warrant, and, in fact, the issuing judge signed the search warrant application and the search warrant

16 itself. Under these circumstances, any defect in the warrant is clearly cured by the incorporation of the

17 accompanying affidavit. See id.at 557-58 (recognizing that “most Courts of Appeals have held that a

18 court may construe a warrant with reference to a supporting application or affidavit if the warrant uses

19 appropriate words of incorporation, and if the supporting document accompanies the warrant.”).

20 In any event, the errors in the search warrant were more akin to the kind of clerical errors that are

21 not fatal to an otherwise valid search warrant. “An officer . . . can be excused for not being aware that

22 he had made a clerical error in the course of filling out the proposed warrant.” Groh, 540 U.S. at 568

23 (Kennedy, J., dissenting) (citing Maryland v. Garrison, 480 U.S. 79, 87 (1987) (recognizing “the need to

24 allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process

25 of making arrests and executing search warrants”)). Here, where the search warrant referenced the

26 mobile phones in Etienne’s possession, but also a physical location, the error did not leave the officers in

27 any doubt about what was to be searched. In fact, unlike the cases where the courts have found a lack of

28 particularity, Etienne cannot claim that the wrong devices were searched or that the resulting search was

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1 overbroad.

2 b. The Officers Were Entitled To Rely On the Warrant in Good Faith

3 Even if this Court were to find that the search warrant was not sufficiently particularized, the

4 Court should not suppress the evidence because the officers undoubtedly relied on the warrant in good

5 faith. The Supreme Court has clearly stated that suppression is “an issue separate from the question

6 whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police

7 conduct.” United States v. Leon, 468 U.S. 897, 906 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 223

8 (1983)). Even if the warrant in this case was not sufficiently particular, the fruits of the search are

9 admissible under the good faith exception. See id. at at 913 (“[O]ur evaluation of the costs and benefits
10 of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a

11 detached and neutral magistrate leads to the conclusion that such evidence should be admissible ....”).

12 “As the Supreme Court recently recognized in Herring v. United States, 555 U.S. 135 (2009), the

13 exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his

14 rightful position but on deterring police officers from knowingly violating the Constitution.” United

15 States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). Evidence should be suppressed “only if it can be said

16 that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the

17 search was unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 141. In Allen, the Fifth

18 Circuit upheld the application of the good faith exception even where the government conceded that the

19 “warrant was not sufficiently particularized and . . . the attachment detailing the items to be seized was

20 not incorporated by reference in the warrant.” Allen, 625 F.3d at 835.

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1 CONCLUSION

2 For the foregoing reasons, the government respectfully requests the Court deny defendant

3 Etienne’s motion to suppress the search of his vehicle and his phones on December 5 and 6, 2016.

5 DATED: Respectfully submitted,

6 ALEX G. TSE
United States Attorney
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_/s/__________________
9 MEREDITH B. OSBORN
WILLIAM FRENTZEN
10 Assistant United States Attorney
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