Here's a federal case I think you'll find interesting (sorry for the length). It's an AAS case, not ancillaries, but it does shed light on the processes by which a suspicious package (domestic Express Mail) is investigated, a knock-and-talk is conducted, and a suspect is deceived by a postal inspector in order to induce consent in the absence of probable cause. Those who've read LEGAL MUSCLE will be thoroughly familiar with all these issues, but others will get an intro to them. Here, the testimony led to the suppression of the evidence. But a case can go the other way on fairly similar facts if the agents are craftier on the stand. Enjoy!
Best,
Rick Collins
UNITED STATES OF AMERICA, Plaintiff, Vs. JON COURTNEY
CABRERA, Defendant.
No. 00-40013-01-SAC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
117 F. Supp. 2d 1152; 2000 U.S. Dist. LEXIS 19547
September 18, 2000, Decided
September 18, 2000, Filed, Entered on the Docket
DISPOSITION: [**1] Defendant Cabrera's Motion to Suppress (Dk. 17) granted;
Defendant's motion for bill of particulars (Dk. 19) denied.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL: For JON COURTNEY CABRERA, defendant: Donald R. Hoffman, Hoffman &
Hoffman, Topeka, KS.
Jon Courtney Cabrera, defendant, Pro se, Topeka, KS.
U. S. Attorneys: Gregory G. Hough, Office of United States Attorney, Topeka, KS.
JUDGES: Sam A. Crow, U.S. District Senior Judge.
OPINIONBY: Sam A. Crow
OPINION:
[*1153] MEMORANDUM AND ORDER
The case comes before the court on the defendant's following pretrial
motions: Motion to Suppress (Dk. 17) and Motion for Bill of Particulars (Dk.
19). The government has filed separate responses (Dks. 21 and 23) opposing the
respective motions. The court heard the parties' arguments and evidence on July
6, 2000. After reviewing all matters submitted and researching the relevant law,
the court issues the following as its ruling on these motions.
[*1154]
INDICTMENT
The defendant, Jon Courtney Cabrera, is charged in a single count indictment
with having possessed with the intent to distribute approximately one gram of
lysergic acid diethylamide, commonly known as LSD, on November 5, 1999, in
violation of 21 U.S.C. § 841(a)(1). [**2]
MOTION TO SUPPRESS
At the hearing, the government presented the testimony of United States
Postal Inspector Richard Britain. He was the officer in charge of the
investigation on November 5, 1999, that began with the knock and talk at the
defendant's residence and ended with the seizure of the express mail package
addressed to the defendant. The defendant presented his own testimony regarding
the events that occurred on the same afternoon. While each witness gave his own
account of the events occurring that afternoon, the accounts were in substantial
agreement in many respects but differed in several critical areas. The following
findings of fact will reflect the court's credibility determinations in those
areas where the witnesses' accounts conflicted.
Findings of Fact
An Express Mail envelope No. EJ747661456US went through the Kansas City Air
Mail Center in Kansas City, Missouri, on November 5, 1999. It was addressed to
"Jon Cabrera, 1701 Vermont, Lawrence, KS 66044." Its mailing label carried a
return address of "Mike Smith, 102 Precita, SF, CA 94110." Richard Britain, a
United States Postal Inspector, was performing routine profiling of Express Mail
when he noticed [**3] this envelope. He observed the return address used a
common name, the return address appeared to have been erased and written over,
the zip code in the return address did not match the zip code for the place
where the package was mailed, and the package appeared to contain small bottles
or vials.
Inspector Britain checked the return address by computer and learned it did
not exist. He then called the San Francisco Postal Police and was informed that
102 Precita was a fictitious or non-existent address. Inspector Britain had a
narcotics canine sniff the exterior of the envelope, but there was no positive
alert. Believing the package may contain steroids to which a dog would not
alert, Inspector Britain continued his investigative efforts.
Inspector Britain called the Lawrence Police Department and spoke with
Officer Chamberlin assigned to its drug unit. Chamberlin did not have any
information about Jon Cabrera or 1701 Vermont. Because he did not have enough
facts for a search warrant, Inspector Britain decided to conduct a "knock and
talk." This investigative procedure entailed having Britain wear a postal
service uniform and deliver the package in the hope that he can persuade the
[**4] addressee to open the package in his presence.
Inspector Britain drove to Lawrence and picked up a postal service vehicle to
use in his undercover delivery. Dressed in a postal service uniform, Inspector
Britain took the package No. EJ747661456US to 1701 Vermont, Lawrence, Kansas,
shortly before noon on November 5, 1999. Two other postal inspectors and two
officers with the Lawrence Police Department followed in two separate vehicles.
They parked their vehicles a short distance away and observed the delivery. On
the porch of the residence, Britain was greeted by two persons whom he described
as "a long-haired man" and a woman who was wearing a tie-dyed dress and playing
a guitar. When Britain announced he had a package for Jon Cabrera, the woman
asked if she could sign for it, but Britain responded that Jon Cabrera should
sign for it. The woman said Cabrera was across the street and directed the other
man to get him. Minutes later, two men approached the residence and the man, who
presumably was Jon Cabrera, jokingly told Britain that if the delivery had been
made a minute later then it would have been free.
Britain said he needed to see Cabrera's identification and to get his
signature [**5] for [*1155] the package. Cabrera showed his driver's license
and then signed his name to the form on the package and accepted delivery of it.
After raising his hand to signal the other officers to approach, Inspector
Britain flashed his badge and identified himself as a "federal agent." Two cars
then pulled up to the residence, the four officers exited and converged towards
the porch. At that point, Inspector Britain said that Cabrera "needed to open
the package." When Cabrera asked what was going on, Britain said that a
narcotics canine had alerted to the package and that he had some concerns about
its contents. n1 Cabrera said nothing more and complied with what he had been
told.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The court found the defendant's testimony in this regards more credible.
Inspector Britain testified that he could not remember much about what he said
to Cabrera about why they were interested in the package.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
With Britain and another postal inspector standing a foot away, Cabrera
opened the exterior package and inside was another express [**6] mail envelope
that was not sealed. In the second envelope was a padded envelope, and inside of
it was a plastic sack. Cabrera took out the plastic sack and Inspector Britain
reached over and assisted in unfolding the white plastic sack which contained
another plastic sack. Inspector Britain opened this last plastic sack and looked
over the contents that included: candy consisting of "Hershey's Kisses" and
"Starburst," small bottles of a breath solution marked "Ice Drops," and a
plastic toy cellular telephone. Britain set the sack on the table, and the other
inspector began checking it out. Cabrera voiced no objection to Inspector
Britain's actions.
Britain asked Cabrera why he would receive a package with these items.
Cabrera answered that he assumed the candy was left over from Halloween and the
breath solution was for his bad breath. During this questioning, Britain
observed that Cabrera was becoming more nervous. From these circumstances,
Britain said he became "more concerned that possibly some of the items . . .
might contain narcotics."
A short time later, the other officers took the sack from the table and
walked towards their vehicles with it. They opened the breath solution [**7]
bottles and smelled them. Inspector Britain eventually smelled the bottles also
and detected nothing but the smell of mint. The defendant voiced no objection to
the officers' actions.
Inspector Britain continued to question Cabrera about why the dog had alerted
to the package and why the return address was fictitious. Cabrera said he had no
explanation for the dog alert but that he believed the package was from Josh
Porter who was a friend in the music business and who often sent him compact
discs, t-shirts, and breath solutions. Inspector Britain testified "at that
point of time, we didn't know what in the world we had. We just had the items
there. It wasn't clearly narcotics that we could see, although from his
demeanor, it seemed a little strange."
Inspector Britain next asked Cabrera for the address of Josh Porter and if he
would call Josh "to try to clear things up." Cabrera told officers he would need
to retrieve the numbers from the address book in his room. Britain told Cabrera
that he was not free to go inside his house without an officer accompanying him.
Britain testified that Cabrera was free to go elsewhere, so long as they could
watch him. Cabrera refused to let an [**8] officer inside his house and
subsequently remembered a telephone number for Josh Porter. Using the Postal
Inspection Service's cellular telephone, Inspector Boyer dialed the number and
gave the phone to Cabrera to talk. Standing in the front yard with the officers
all around him trying to overhear the conversation, Cabrera described the
situation over the telephone, asked about the package's contents, and asked
whether Josh would speak with the federal agents. The conversation ended
quickly, and Cabrera [*1156] reported that Porter had said he was busy and
could not talk now.
Shortly after this phone call, the five officers still standing around
Cabrera began trying to persuade him to give them the package for testing.
Inspector Britain testified that his approach was a little more aggressive even
though they did not know whether the package contained drugs or not. Officers
asked Cabrera several times for the package, but he refused. They told him that
they "needed to send" the contents to the lab "to see what was inside of it."
Inspector Hamilton suggested that the Postal Service would replace the items if
he gave them the package. Britain opined from the witness stand that Cabrera
could [**9] have told them "to get lost and at this point we probably would
have had to just get lost."
After turning them down at least three times, Cabrera asked the officers what
would happen if he did not give them the package. Inspector Britain answered
that an officer would stay with Cabrera while the others got a search warrant,
this would take two hours, and neither he nor the judge would be happy about it.
Despite making these comments, Inspector Britain testified that he was actually
thinking the following: "We really were about ready to go, because we had two
other packages to deliver, and we thought at that point in time we might just
have to--something we were going to have to possibly leave. We were kind of at a
loss at this point in time." In a matter of minutes, Cabrera gave Inspector
Britain the package and signed a consent form turning over possession. Sometime
later, Cabrera was sent replacement candy and breath solution.
At no time during the above encounter did the officers advise Cabrera of his
right to refuse to talk or cooperate with them. Inspector Britain also testified
that if Cabrera had refused to open the package in his presence, "I would have
had to leave him with [**10] the package because I didn't have enough at that
point in time to really get involved and I had two other packages besides that
had smelled of marijuana so I probably would have gone off with those and left
this thing."
Arguments
The defendant seeks to suppress all physical evidence seized from the Express
Mail envelope No. EJ747661456US by government agents on November 5, 1999. The
defendant argues that this envelope was addressed to him and that the government
agents discovered and obtained the envelope's contents during an illegal,
warrantless, and non-consensual search of the envelope. The defendant denies
that he ever consented to opening the envelope. Rather, Inspector Britain with
the four other agents present simply directed him to open the package and he
obeyed them as he had no other choice. If the court finds that consent to search
was given, the defendant alternatively argues this consent was not freely and
voluntarily given. The defendant likewise challenges the voluntariness of his
consent to have the package taken and tested. The government maintains the
defendant did consent to the search and seizure of the envelope and did so
freely and voluntarily.
Governing [**11] Law
A warrantless search is "per se unreasonable" unless one of specifically
established exceptions, like consent, is present. Schneckloth v. Bustamonte,
412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (quotations omitted).
Valid consent is that which is freely and voluntarily given." United States v.
Patten, 183 F.3d 1190, 1194 (10th Cir. 1999) (citation omitted). Voluntariness
is a question of fact to be determined from the totality of all the
circumstances. Schneckloth v. Bustamonte, 412 U.S. at 227. A court makes this
determination without presuming the consent was voluntary or involuntary.
United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
The government bears the burden of proving valid consent to a warrantless
search. United States v. Patten, 183 F.3d at 1194. The government does not
[*1157] discharge its burden "by showing no more than acquiescence to a claim
of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 549, 20 L. Ed. 2d
797, 88 S. Ct. 1788 (1968); see United States v. Rodriguez, 525 F.2d 1313, 1316
(10th Cir. 1975). [**12] The government first "must present 'clear and positive
testimony that consent was unequivocal and specific and freely and intelligently
given.'" United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United
States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 19965)), cert. denied,
525 U.S. 903 (1998). The government also must prove that the officers used no
implied or express duress or coercion in obtaining the consent. Id.; United
States v. Hernandez, 93 F.3d at 1500; United States v. McRae, 81 F.3d 1528, 1537
(10th Cir. 1996).
There are various factors relevant to this determination. An officer's
failure to advise that a person may refuse to consent is relevant, but it is
only one factor and is not dispositive. United States v. Pena, 143 F.3d at 1367;
see also United States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir. 1996)
("Failure to inform a defendant that he was free to leave or that he could
refuse consent are 'important factors in our consideration'" of whether consent
was voluntary, but they are not dispositive); United States v. Little, 60 F.3d
708, 713 (10th Cir. 1995). [**13] Other relevant factors include the number of
officers present, "'physical mistreatment, use of violence, threats, threats of
violence, promises or inducements, deception or trickery, and physical and
mental condition and capacity of the defendant within the totality of the
circumstances.," United States v. Pena, 143 F.3d at 1367 (quoting United States
v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994) (internal quotation omitted));
see United States v. Bozarth, 1998 U.S. App. LEXIS 7131; 141 F.3d 1186, 1998 WL
163387, at *3 (10th Cir. 1998) (Table) (Because the pressure to acquiesce to an
officer's request may be increased if more than one officer is present, this is
a relevant factor, but not a dispositive one.) (citing United States v.
Orrego-Fernandez, 78 F.3d at 1505) Another relevant factor may be "the extent
and level of the defendant's cooperation with the police." United States v.
Tompkins, 130 F.3d 117, 121 (5th Cir. 1997) (quotation omitted), cert. denied,
523 U.S. 1036, 140 L. Ed. 2d 495, 118 S. Ct. 1335 (1998). Finally, the court
must determine whether the consent was the result of any detention [**14] or
seizure in violation of the Fourth Amendment. A court must remain mindful that
these factors are not evaluated in a vacuum but rather in the totality of the
circumstances.
Inspector Britain testified that he and the fellow officers employed a "knock
and talk" procedure. "Courts have defined this tactic as 'a noncustodial
procedure [in which] the officer identifies himself and asks to talk to the home
occupant and then eventually requests permission to search the residence.'"
United States v. Hardeman, 36 F. Supp. 2d 770, 777 (E.D. Mich. 1999) (quoting
United States v. Miller, 933 F. Supp. 501, 505 (M.D.N.C. 1996)). Courts
generally have upheld this investigative procedure as a legitimate effort "to
obtain a suspect's consent to search." Id. (citations omitted). "Courts may
consider the use of the 'knock and talk' procedure as one of the circumstances
in evaluating whether consent was given and, if so, whether consent was given
voluntarily." Id. (citing Miller, 933 F. Supp. at 505 and United States v. Tobin
, 923 F.2d 1506, 1509 (11th Cir.), cert. denied, 502 U.S. 907, 116 L. Ed. 2d
243, 112 S. Ct. 299 (1991)). [**15]
Discussion and Analysis
The government has failed to satisfy its burden of proving with clear and
positive testimony that Cabrera consented to opening the package and did not
merely acquiesce to the officers' show of lawful authority. Highly motivated to
learn whether the package contained contraband, Inspector Britain employed a
knock and talk procedure that was plainly designed to impress Cabrera with the
officers' lawful authority to be present while the package was opened. Cabrera,
as [*1158] would most reasonable persons be, was initially bewildered to learn
upon receipt of the package that the mailman was actually an undercover "federal
agent" and that the situation was so serious as to warrant four other officers
converging on the scene. Exploiting this display of police presence, Inspector
Britain told Cabrera that he "needed" to open the package now. This statement is
unclear as to whether Britain was asking Cabrera if he would open the package or
was just telling Cabrera that he needed to open the package. See United States
v. Cole, 195 F.R.D. 627, 2000 WL 1137669, at *4 (N.D. Ind. 2000).
Cabrera showed either his confusion or some measure [**16] of fortitude when
he asked Britain what was going on. In response, Britain did not clarify that he
was asking for Cabrera's consent. Nor did he advise that Cabrera had a choice to
cooperate. n2 Rather, Inspector Britain simply reiterated his lawful authority
to be present by saying that a narcotics dog had alerted to the package and that
other features of the package were also suspicious. A reasonable person upon
hearing this response would likely believe that the officers were authorized
under these circumstances to discover why the dog had alerted. Britain said
nothing to contradict this plain impression that he and his fellow officers were
lawfully entitled to know what was inside the package. Moreover, Britain relied
on a blatant deception--the positive dog alert--to further the impression that
Cabrera had no choice but to permit their search.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 "Although law enforcement officials are not required to inform criminal
suspects of their right to refuse consent to search, 'knowledge of the right to
refuse consent is one factor to be taken into account.'" United States v. Worley
, 193 F.3d 380, 386-87 (6th Cir. 1999) (quoting Schneckloth, 412 U.S. at 227).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**17]
Cabrera's reaction shows the effectiveness of what had been conveyed to him.
He asked no further questions and voiced no objections. In fact, he said nothing
and simply began opening the package in acquiescence to what he reasonably
understood was the officers' lawful authority. Consequently, the court finds no
credible, clear and positive testimony that the defendant was ever asked to give
his consent to opening the package for the officers. Nor is there clear and
positive testimony to sustain a finding of unequivocal, specific, and freely and
intelligently given consent. It is true that "non-verbal conduct, considered
with other factors, can constitute voluntary consent to search." United States
v. Gordon, 173 F.3d 761, 766 (10th Cir.), cert. denied, 528 U.S. 886, 120 S. Ct.
205, 145 L. Ed. 2d 172 (1999). The court, however, is not satisfied that the
government has proved such implied consent was given without duress or coercion
considering the deceptive statement made about the positive dog alert. In these
circumstances, the court finds that Cabrera's silence and lack of resistance in
response to Britain's apparent directives to be mere acquiescence [**18] to a
show of lawful authority and not the voluntary consent needed to justify the
officers' warrantless search.
The evidence shows the officers continued to conduct themselves in a manner
that conveyed their lawful authority to learn whether the package contained any
contraband regardless of Cabrera's interests. Without asking permission or
saying anything, Inspector Britain took the package from Cabrera just before the
actual contents were revealed. He looked through the sack himself and set it
down on the table away from Cabrera. Other officers looked through the sack and
eventually took it to their vehicles for a closer inspection. They opened the
bottles and smelled the contents. The officers exercised this authority over the
package and never once asked for the defendant's consent. That the defendant did
not voice any objection to their actions is not surprising in light of the
officers' earlier and ongoing display of lawful authority to discover whether
the package contained contraband.
Taking into account all of the circumstances--exercising control over the
[*1159] package, the imperative wording, their number and proximity, repeated
questioning about the package, and prohibiting [**19] the defendant from
entering his own house without an officer--the police conduct here would have
communicated to a reasonable person that he was not at liberty to ignore the
officers and go about his business. See United States v. Hill, 199 F.3d 1143,
1147 (10th Cir. 1999), cert. denied, 121 S. Ct. 83, 148 L. Ed. 2d 45 (2000). The
court does not believe the officers explained to Cabrera that his movement was
restricted for purposes of officer safety and that he was free to end the
encounter anytime and go about as he pleased. The totality of these
circumstances gave the defendant an objective reason to believe he was not free
to end the conversation with officers and proceed on his way. United States v.
Hernandez, 93 F.3d at 1498. The government did not come forth with evidence
showing that the officers had reasonable suspicion to detain Cabrera. As the
defendant had reasonably explained most of the circumstances to Britain's
satisfaction, only Cabrera's nervousness remained as a factor. Indeed, Inspector
Britain's testimony cited in the above findings demonstrate they found no
evidence of narcotics and had nothing [**20] but Cabrera's nervousness.
Nervousness alone is not sufficient to sustain reasonable suspicion, but it is
relevant and may contribute to a reasonable suspicion. United States v.
Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir.), cert. denied, 525 U.S. 853
(1998); see United States v. Ozbirn, 189 F.3d 1194, 1200 (10th Cir. 1999).
Inspector Britain's testimony does not sustain any finding of reasonable
suspicion.
When a detention was unlawful, "evidence obtained as a result of that illegal
detention must be excluded to the extent it was fruit of the poisonous tree."
United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 522 U.S.
985 (1996). In short, the government must not only "show consent is voluntary in
fact, but it must also demonstrate a break in the causal connection between the
illegality and the consent, so that the court will be satisfied that the consent
was 'sufficiently an act of free will to purge the primary taint.'" United
States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994) (quoting Wong Sun
v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963));
[**21] see United States v. Davis, 197 F.3d 1048, 1052 (10th Cir. 1999). In
determining whether the illegal detention taints the defendant's consent to
search, the court looks to the following rules:
"A search preceded by a Fourth Amendment violation remains valid if
the consent to search was voluntary in fact under the totality of
circumstances." United States v. Fernandez, 18 F.3d 874, 881 (10th
Cir. 1994); (citation omitted). "The government bears the burden of
proving the voluntariness of consent, and that burden is heavier when
consent is given after an illegal [detention]." Fernandez, 18 F.3d at
881 (citations omitted); (citation omitted). The government must
demonstrate that Mr. McSwain's consent to search is "sufficiently an
act of free will to purge the primary taint of the illegal
[detention]." (footnote omitted); United States v. Maez, 872 F.2d
1444, 1453 (10th Cir. 1989); (citations omitted). No single fact is
dispositive under the totality of the circumstances test, (citation
omitted), but the three factors articulated in Brown v. Illinois, 422
U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), [**22] are
especially relevant: "the temporal proximity of the illegal detention
and the consent, any intervening circumstances, and, particularly, the
purpose and flagrancy of the officer's unlawful conduct." [United
States v.] Walker, 933 F.2d [812] at 818 [(10th Cir. 1991)] (citations
omitted).
United States v. McSwain, 29 F.3d 558, 562 (10th Cir. 1994); see United States
v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996).
The government has not carried its heavier burden of proving that Cabrera
voluntarily consented to the seizure of his package while he was being
unlawfully detained. There are no facts or circumstances from which to infer
that Cabrera's [*1160] consent is sufficiently an act of free will to purge
the primary taint of the illegal detention.
Even if the evidence did show the taint here to be purged, the court would
still conclude that Cabrera's permission to take the package was not consent but
a mere acquiescence to a claim of lawful authority. This claim of lawful
authority was created in part by Inspector Britain's statement that they would
get a warrant if Cabrera did not consent. The Tenth Circuit recently summarized
[**23] the relevant law in an unpublished decision:
Where some basis exists to support an application for a search
warrant, an officer's express intention to seek a search warrant in
the absence of consent does not render a consent involuntary. See,
e.g., United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997)
(officer's statement that "he would obtain" a search warrant if
defendant refused to consent was but one factor to be considered among
the totality of the circumstances); United States v. White, 979 F.2d
539, 542 (7th Cir. 1992) (where officer's expressed intention to
obtain a search warrant was genuine and not merely a pretext to induce
submission, such intention did not vitiate consent); see generally
United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998)[, cert.
denied, 523 U.S. 1122, 140 L. Ed. 2d 944, 118 S. Ct. 1805 (1998)].
United States v. Creech, 221 F.3d 1353, 2000 WL 1014868, at *2 (10th Cir. 2000)
(Table); see also United States v. Watson, 117 F.3d 1421, 1997 WL 377035, *3
(6th Cir.) (Table) ("Notifying a person that a warrant can be [**24] obtained
does not render consent involuntary unless the threat to obtain the warrant is
baseless."), cert. denied, 522 U.S. 961, 139 L. Ed. 2d 307, 118 S. Ct. 393
(1997). Thus, a court may find consent to have been vitiated where there was no
probable cause for a search warrant and the officers knew the same but
misrepresented that a warrant could be obtained and allowed the defendant to
rely this misrepresentation in deciding to consent. See United States v. Vasquez
, 638 F.2d 507, 529 (2nd Cir. 1980), cert. denied, 450 U.S. 970 (1981). The
testimony of Inspector Britain establishes that he knew they lacked probable
cause to obtain a search warrant and that they intended just to leave the
package with Cabrera if he did not consent to the seizure. The timing of Britain
's misrepresentation and Cabrera's consent indicates Cabrera may have relied on
this misrepresentation. Under these circumstances, the court finds that
Inspector Britain's misrepresentation vitiated any voluntary consent which
Cabrera could have given.
MOTION FOR BILL OF PARTICULARS
Arguments
The defendant seeks an order directing the government to provide [**25] a
bill of particulars that specifies "the exact manner, . . ., in which defendant
'knowingly and intentionally' possessed 'with intent to distribute and dispense
one (1) gram or more of a mixture or substance containing a detectable amount of
' LSD." (Dk. 19, p. 1). The defendant contends the narrative report of Inspector
Britain, which is the only narrative report that the government has provided the
defendant in discovery, does not afford an adequate basis for "discerning what
acts on the part of Cabrera the government believes constitute possession." (Dk.
20, p. 3).
Law and Analysis
An indictment is held only to minimal constitutional standards, and the
sufficiency of an indictment is judged "by practical rather than technical
considerations." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997).
"An indictment is sufficient 'if it contains the elements of the offense
charged, putting the defendant on fair notice of the charge against which he
must defend and if it enables a defendant to assert an acquittal or conviction
in order to prevent being placed in jeopardy twice for the same offense.'"
United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) [**26] (quoting
United [*1161] States v. Staggs, 881 F.2d 1527, 1530 (10th Cir. 1989), cert.
denied, 493 U.S. 1020, 107 L. Ed. 2d 739, 110 S. Ct. 719 (1990)). In the Tenth
Circuit, it is usually enough for the indictment to track the statute when the
statute adequately expresses all of the elements to the offense. United States
v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988).
The indictment here adequately apprises the defendant of the crime charged.
The indictment quotes the essential elements of 21 U.S.C. § 841(a)(1) and
alleges the specific date of possession, describes the general location of the
possession as within the District of Kansas, identifies the specific controlled
substance possessed, and alleges the amount of the controlled substance
possessed. As far as learning which theory the government will use to prove
possession, this is not a valid ground for seeking a bill of particulars.
United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983). The defendant's
request for a bill of particulars is denied.
IT IS THEREFORE ORDERED that the defendant Cabrera's Motion to Suppress (Dk.
17) is granted; [**27]
IT IS FURTHER ORDERED that the defendant's motion for bill of particulars
(Dk. 19) is denied.
Dated this 18th day of September, 2000, Topeka, Kansas.
Sam A. Crow, U.S. District Senior Judge
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