IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · 2014-10-08 · District Judge J. Michael...

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C.A. NO. 13-10317 UNITED STATES OF AMERICA, ) CR. NO. 12-00055 JMS

) (USDC-Hawaii) Plaintiff-Appellee, )

) vs. )

) MICHAEL SAKUMA, )

) Defendant-Appellant. )

) ___________________________________) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRIEF OF PLAINTIFF-APPELLEE UNITED STATES OF AMERICA

FLORENCE T. NAKAKUNI United States Attorney District of Hawaii

BEVERLY WEE SAMESHIMA Assistant U.S. Attorney Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, Hawaii 96850 Telephone: (808) 541-2850 Email: [email protected]

Attorneys for Plaintiff- Appellee UNITED STATES OF AMERICA

Case: 13-10317 02/12/2014 ID: 8976185 DktEntry: 14-1 Page: 1 of 46

TABLE OF CONTENTS

Page(s) TABLE OF AUTHORITIES.........................................i-ii I. JURISDICTION AND BAIL STATUS...............................1

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW...................1

III. STATEMENT OF THE CASE......................................2

IV. STATEMENT OF THE FACTS.....................................4

A. The Search Warrant....................................4

B. Execution of the Search Warrant.......................8

C. The Court’s Ruling...................................11

1. Whether the Warrant Properly Described Place to be Searched.....................................11

2. Good Faith Exception............................11

a. Whether the Affiant Misled the Judicial Officer by Making a False Statement or Recklessly Disregarded the Truth...........12

b. Whether the Judge Wholly Abandoned His

Judicial Role in Approving the Warrant.....12

c. Whether the Warrant is Facially Deficient in Detail as to the Place to be Searched...13

d. Whether the Warrant is so Lacking in

Indicia of Probable Cause That No Reasonable Officer Could Rely Upon It in Good Faith.................................13

3. Whether Warrant Described Items to be Seized....14

V. STANDARDS OF REVIEW.......................................18


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VI. SUMMARY OF ARGUMENT.......................................19

VII. ARGUMENT..................................................21

A. There is No Evidence of Police Misconduct or Recklessness in Connection With Preparation or Execution of the Warrant.............................21

B. The Warrant was Not Overbroad in Authorizing a Search of the Defendant’s Warehouse Residence Where

Defendant Had Access and Control to the Entire Warehouse and There was Probable Cause to Believe

that the Entire Warehouse was Suspect................24

C. The Warrant Described the Property with Particularity, as Well as the Property to be Seized...............................................29

D. The Good Faith Exception Applies in This Case

Because the Officers Relied on the Search Warrant in an Objectively Reasonable Manner..................31

1. There was No Evidence that Officer Jackson

Misled the State Court Judge by Making a False Statement or recklessly Disregarded the Truth...32

2. There was No Evidence the State Judge Wholly

Abandoned His Judicial Role in Approving the Warrant.........................................34

3. Whether the Warrant is Facially Deficient in

Detail as to the Place to be Searched...........35

4. Whether the Warrant was so Lacking in Probable Cause so as to Render Reliance on it Unreasonable....................................36

VIII. CONCLUSION..............................................37


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TABLE OF AUTHORITIES Cases Page(s) Alexander v. United States, 761 F.2d 1294 (9th Cir. 1985) ..............................24, 27, 29, 37 Arizona v. Gant, 556 U.S. 332 (2009)...........................18 Clark v. United States, 638 F.3d 89 (2d Cir. 2011).........27, 35 Mena v. City of Simi Valley, 226 F.3d 1031 (9th Cir. 2000) .....27 Ortiz v. Van Auken, 8878 F.2d 1366 (9th Cir. 1989) .............35 United States v. Baldwin, 987 F.2d 1432 (9th Cir. 1993) ........31 United States v. Battles, 362 F.3d 1195 (9th Cir. 2004) ........23 United States v. Brown, 563 F.3d 410 (9th Cir. 2009) ...........19 United States v. Butler, 71 F.3d 243 (7th Cir. 1995) ...........27 United States v. Bynum, 362 F.3d 574 (9th Cir. 2004) ...........18 United States v. Cannon, 264 F.3d 875 (9th Cir. 2001)...........19 United States v. Cervantes, 678 F.3d 798 (9th Cir. 2012) .......18 United States v. Christakis, 238 F.3d 1164 (9th Cir. 2001) .....24 United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004), cert. denied, 543 U.S. 1057 (2005)........................18 United States v. Crews, 502 F.3d 1130 (9th Cir. 2007)...........19 United States v. Dorsey, 418 F.3d 1038 (9th Cir. 2005) .........18 United States v. Fernandez-Castillo, 324 F.3d 1114 (9th Cir.), cert. denied, 540 U.S. 959 (2003) .............18 United States v. Gamez, 301 F.3d 1138 (9th Cir. 2002), cert. denied, 538 U.S. 1067 (2003)........................19 United States v. Gilman, 684 F.2d 616 (9th Cir. 1982) ..........26 United States v. Haswood, 350 F.3d 1024 (9th Cir. 2003) ........19


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United States v. Kurt, 986 F.2d 309 (9th Cir. 1993).............19 United States v. Leon, 468 U.S. 897 (1984).................32, 36 United States v. Mann, 389 F.3d 869 (9th Cir. 2004) ............31 United States v. Meek, 366 F.3d 705 (9th Cir. 2004) ............18 United States v. Moore, 149 F.3d 773 (8th Cir. 1998) ...........31 United States v. Parks, 285 F.3d 1133 (9th Cir. 2002)...........19 United States v. Schesso, 730 F.3d 1040 (9th Cir. 2013).........19 United States v. Summers, 268 F.3d 683 (9th Cir. 2001) .........19 United States v. Towne, 997 F.2d 537 (9th Cir. 1993) ...........35 United States v. Vesikuru, 314 F.3d 1116 (9th Cir. 2002)........19 United States v. Whitney, 633 F.2d 902 (9th Cir. 1980), cert. denied, 450 U.S. 1004 (1981)....................25, 27 Statutes and Rules 18 U.S.C. ' 3231 ................................................1 18 U.S.C. ' 3742(a) .............................................1 21 U.S.C. ' 841(a) ...........................................1, 3 21 U.S.C. ' 841(b)(1)(A) ........................................3 21 U.S.C. ' 846 .................................................1 28 U.S.C. ' 1291 ................................................1 Haw. Rev. Stat. § 329-1........................................30


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BRIEF OF PLAINTIFF-APPELLEE UNITED STATES OF AMERICA I. JURISDICTION AND BAIL STATUS

Defendant-Appellant Michael Sakuma (“Sakuma”) appeals his

240-month sentence for conviction of conspiracy to distribute and

possess with intent to distribute 500 grams or more of a mixture and

substance containing a detectable amount of methamphetamine in

violation of 21 U.S.C. '' 841(a) and 846. The district court had

jurisdiction pursuant to 18 U.S.C. ' 3231. Sakuma entered a

conditional plea on January 18, 2013. (ER 9-20) Sakuma’s sentence

was imposed on May 28, 2013. (ER 3-8) His judgment was filed on

June 3, 2013, and he filed a timely Notice of Appeal on June 11, 2013.

(ER 1-2) This Court has jurisdiction over Sakuma’s appeal pursuant

to 18 U.S.C. ' 3742(a) and 28 U.S.C. ' 1291. Sakuma is currently

serving his sentence.

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW

A. Whether the police engaged in misconduct or acted

recklessly in obtaining a search warrant for the Sakuma residence?

B. Whether the search warrant for Sakuma’s residence which

commanded the police to search for items “located within the property

boundaries found under the control of Michael SAKUMA” was overbroad

and lacking in probable cause to search the entire warehouse where

Sakuma occupied the second floor studio portion of the warehouse,

but exercised control of the warehouse?


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C. Whether the property description in the warrant lacked

particularity?

D. Assuming arguendo the warrant was overbroad or lacked

particularity, whether the good faith exception to the exclusionary

rule applies to the police conduct in this case?

III. STATEMENT OF THE CASE

On November 15, 2011, a State of Hawaii search warrant was

issued and executed on Sakuma’s residence, a warehouse in

Kailua-Kona, on the island of Hawaii. As a result of the search,

approximately seven pounds of methamphetamine and non-drug

paraphernalia were recovered from two safes hidden behind a shelf

in Sakuma’s bathroom. Sakuma was arrested by State of Hawaii county

police, waived his Miranda rights and gave a videotaped confession

in which he admitted that the seven pounds of methamphetamine hidden

in the safes belonged to him and that he received them from a supplier

from the mainland. (ER I 98)

In January 2012, the case was referred to the Drug

Enforcement Administration for federal prosecution. Sakuma was

indicted by a federal grand jury on January 12, 2012, on two counts:

conspiracy to distribute and possess with intent to distribute 500

grams or more of a mixture and substance containing a detectable

amount of methamphetamine and one count of knowing and intentional

possession with intent to distribute 500 grams or more of a mixture


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and substance containing a detectable amount of methamphetamine in

violation of 21 U.S.C. '' 841(a) and 841(b)(1)(A). (ER1 258-261)

On August 31, 2012, Sakuma filed a motion to suppress the

evidence asserting that his constitutional rights were violated.

Sakuma alleged that the state officers violated the “knock and

announce” rule, the police failed to serve a copy of the warrant on

the owner of the Sakuma property, Sakuma’s landlord, George

Tamashiro, and whether the warrant lacked probable cause because it

failed to describe the property with particularity. (ER I 219-245)

District Judge J. Michael Seabright presided over the

hearing on the suppression motion on October 25, 2012. Witnesses

testified for both parties. Although not an argument specifically

raised by Sakuma, the court opined that the main deficiency in the

warrant was its overbreadth because it gave the police the authority

to search the entire premises “within Sakuma’s control,” despite the

fact Sakuma lived only in a “studio” on the second floor of the

warehouse. The court questioned whether the warrant affidavit

contained sufficient probable cause for a search of the entire

warehouse and acknowledged the warrant contained sufficient probable

cause to search Sakuma’s residence within that warehouse. (ER 2 408)

1 All references to “ER I” or “ER 2” hereafter are to the

Defendant’s Excerpts of Record in either Volume I or Volume II. All references to “SER” are to the Government=s Supplemental Excerpts of Record. “CR” refers to the District court record.


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The court requested supplemental briefs on this issue post-hearing.

(ER 2 407-408) The parties filed supplemental briefs. (ER I

64-112) On November 28, 2012, the Court issued a 43 page Order

denying the motion and finding that the good faith exception applies

to any deficiencies in the warrant’s description of the place to be

searched or items to be seized. (ER I 22) The Court also rejected

Sakuma’s arguments that the warrant lacked particularity and that

the police violated the “knock and announce” rule, as well as alleged

failure to serve a third party-owner with the warrant. (ER I 22)

On January 25, 2013, Sakuma entered a Rule 11(a)(2)

conditional plea to Count 1 of the Indictment, reserving his right

to appeal the court’s denial of the suppression motion. (ER 9-20)

On May 28, 2013, Sakuma was sentenced to 240 months, 5 years

supervised release and a $20,000 fine. (ER 3-8) This appeal

followed on June 11, 2013.

IV. STATEMENT OF THE FACTS

A. The Search Warrant

On November 15, 2011, Hawaii County police officer Erich

Jackson obtained a state search warrant for Sakuma’s residence

located in Kailua-Kona. (ER I 113-114) The state court judge

issued the warrant after reviewing Jackson’s Affidavit which recited

that a third party, Donald Lewis, was arrested for drug-related

offenses by Hawaii County officers on February 8, 2011 and told


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officers that he purchased pound quantities of methamphetamine from

the defendant on four separate occasions between June 2010 and

February 6, 2011. (ER I 119-120) Lewis described Sakuma as living

on the second floor of the yellow warehouse in a “studio style”

apartment secured by a door and gold key locking mechanism and that

there are three separate sets of stairs leading to the upper level

of the warehouse. (ER 119-122) Lewis further relayed that three

of the drug transactions occurred in Sakuma’s studio and that he

observed thirteen to fifteen pounds of methamphetamine in Sakuma’s

studio. (ER I 120) The affidavit also described Lewis as stating

that Sakuma told him he had two safes in the building and “access

to all units within the warehouse except for one which is secured

by the business owners.” (ER I 121) The affidavit further provides

that Lewis’ information was consistent with information “from

several independent sources that Sakuma has in his possession more

than seventeen pounds of methamphetamine” and that he keeps

methamphetamine “within a safe inside the warehouse.” (ER I 122)

The Jackson Affidavit further provides that Officer

Jackson arrested another individual, Jeffrey Cho on November 14, 2011

after Cho was seen leaving Sakuma’s warehouse. Officers seized .5

grams of marijuana, 3.9 grams of methamphetamine and $1,590 in cash.

During his post-arrest interview, Cho said he owed Sakuma $4,400

which he was paying off by delivering methamphetamine for Sakuma,


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including the methamphetamine in his possession at the time of his

arrest. (ER I 124) Cho stated that he had been making

methamphetamine deliveries twice a day for Sakuma during the prior

three months. (ER I 125) Cho also said that during the prior

month, he saw Sakuma in possession of a gallon size ziplock bag filled

with methamphetamine. Cho told officers Sakuma told him he has had

in excess of seventeen pounds of methamphetamine in the past. Id.

Jackson’s Affidavit also contains a section entitled,

“Building Description” in which the warehouse is described as located

at 74-592 A Hale Maka’i Place, Kailua-Kona, Hawaii, provides

directions to the warehouse and attaches a Google map of the location.

(ER I 125-126) The affidavit also contains a physical description

of the warehouse as a cream-colored metal structure enclosed with

a gated chain link fence, with a “John Deere” sign located towards

the top of the building on its west side and a garage bay door with

a “D&M” hydraulics sign. Id.

The warrant commands the Hawaii County Police Department

to search:

“A warehouse located at 74-592 A Hale Maka’i Place, Kailua-Kona, Hawai’i, 96740, occupied by Michael SAKUMA and Penny NOLAN; described as being a cream colored, metal structure; more particularly located by traveling east on Hale Maka’i Place from Queen Kaahumanu Highway, then making a right turn into the driveway leading to 74-592 A Hale Maka’i Place. The property located at 74-592 A Hale Maka’i Place, Kailua-Kona, HI 96740, is owned by two different owners, (1) Suzuko TAMASHIRO (2) George Y.


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TAMASHIRO. This inquiry also lists the property located at 74-592 A Male Maka’i Place, Kailua-Kona, HI 96740, as Tax Map Key Number 740200180000; occupied by Michael SAKUMA, a 48-year old male, with Date of Birth [REDACTED]- 1963, and having a Social Security Number with the last four numbers being 0192; to include but not limited to, all rooms and other parts therein, the surrounding grounds and any garages, storage rooms, outbuildings of any kind, vehicles, garbage cans, safety lock boxes, safes, and containers located within the property boundaries found under the control of Michael SAKUMA.” (ER I 113)

At the suppression hearing, Officer Jackson testified that

he received numerous reports that Sakuma was living in the upstairs

portion of the warehouse and that he had control of the warehouse

at night and during the day and that he was the maintenance guy. (ER

2 279) Jackson also testified that he was told Sakuma could go

anywhere in that warehouse and had keys for everywhere. (ER 2

279-280) Jackson also testified that the address, “74-592 A Hale

Maka’i Place” encompassed the entire warehouse. (ER 2 281) Jackson

testified that he talked to the owner/landlord of the warehouse,

George Tamashiro who told him that he and Sakuma were close friends

and that Tamashiro let Sakuma live in the warehouse rent free in

exchange for doing maintenance on the building. (ER 2 283-284)

Jackson was asked why the warrant was written to authorize

a search of the entire warehouse when there were other businesses

within the warehouse. Jackson explained:

“The reason for that is because Mr. Sakuma had access to the whole warehouse. I was unsure if maybe he had a stash placed within the warehouse where he could hide his


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items. I knew at night he had free reign of the place. No one was there, so he could have hidden things anywhere throughout that warehouse, and that’s why I wanted to conduct a search for the whole warehouse.” (ER 2 287-288)

Officer Jackson also testified that confidential

informants told him that Sakuma had keys to the entire

warehouse. (SER 2 335)

B. Execution of the Search Warrant

Officers executed the warrant on November 15, 2011 based

upon information that Sakuma was in the process of moving out of the

building. (ER 2 291-292) The officers formed an entry team to

secure the inside of the warehouse and a perimeter team to secure

multiple exits of the warehouse. (ER 2 292) The officers were

dressed in raid vests with the words, “Police” printed on them and

formed a line formation or “stack” at a glass door in the middle side

of the warehouse (ER 2 293, 346) where entry was planned. Informants

identified the glass door as the one which would offer direct access

to Sakuma’s second floor studio. (ER 2 293-296, 300) After forming

the stack, Officer Jackson, at the head of the line, knocked and

announced police presence several times in a loud voice. Another

officer, Matsushima also knocked and announced. (ER 2 296-297)

After waiting a minute and a half and hearing no response, the

officers entered through a window to the right of the door which was

unlocked. (ER 2 297-298)


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After entering the building, the officers encountered

another door with punch locks. They announced their presence at that

door as well and then pulled it open and went up a stairwell where

they encountered a second door with gold locks. (ER 2 301) They

again announced their presence and had to use a ram to make entry

into that room. (ER 2 302) Behind this door was a hallway with glass

windows and rooms on either side. Officers went into each room to

clear it for safety reasons. In a room at the end of the hall,

officers encountered Sakuma who was vacuuming. He was placed on the

ground and handcuffed at this time. (ER 2 301-302) In the same

room, a metal tin containing methamphetamine on a desk and a scale

were observed in plain view. Sakuma was placed under arrest. He

was advised and shown the search warrant and then taken to the police

station which was located across the street. (ER 2 302-303) The

officers continued their search and found a safe hidden behind a

bookshelf in the closet area of a bathroom which was within Sakuma’s

second floor area. Within the safe were seven pounds of

methamphetamine. (ER 2 291)

The officers searched no other units or locations within

the warehouse other than the second floor “studio” area occupied by

Sakuma. When asked why no other areas were searched when the warrant

authorized the search of the entire warehouse, Officer Jackson

testified:


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Q: And you ended up not searching the entire warehouse; is that accurate?

A: That is.

Q: And can you tell us generally what you ended up searching?

A: When we did the search warrant, I had been advised about the gold key number locks that Mr. Sakuma put up in his area. So we searched the bay for – our initial entry point where we went in, we searched the bay attached to that, which is the only access through there, and we searched the upstairs area. The reason I changed it up was after going and doing the search warrant and being inside the building, I realized that he had trust issues. He wanted to be in control of everything; that is why the punch locks and the hidden space - - (objection) He had hidden areas. And so, in my opinion as the investigator at that time, if he was going to hide things it would be in his own area and not anywhere else, and that’s why I did not search the rest of the warehouse. I made the determination after we went in there and saw how things were set up inside.” (ER 2 288-289)

In response to further questioning from the court, Officer

Jackson said:

“. . . when we went in, after we made entry into his unit and seen how he had hidden areas within his unit itself, the hidden safes and stuff, once we saw that, we realized that he’s going to keep all of his items up here. He’s not going to put it anywhere because he wanted to be in control of them.” (ER 2 289-290)

After completing the search, Officer Jackson left a copy

of the warrant at Sakuma’s residence which he testified was in

accordance with state policy and procedure. (ER 2 303-304) The

next day when Sakuma was interviewed at the police station, he was

provided with a copy of the search warrant. (ER 2 304)


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C. The Court’s Ruling

1. Whether the Warrant Properly Described Place to be Searched

On November 28, 2012, the district court issued a ruling

denying the motion. 2012 WL 5954962 (D. Hawaii). The court found

that the plain language of the warrant authorized officers to search

the entire warehouse and rejected the government’s argument that it

was limited only to areas “found under the control” of the Defendant.

(ER 2 35) The court thereafter framed the issue as whether the

signing judge had a substantial basis for concluding that probable

cause existed to search all units. However, the court declined to

decide whether probable cause existed for each unit within the

warehouse because, “if the good faith exception applies the court

need not determine whether the warrant’s description of the place

to be searched lacked particularity and/or whether probable cause

existed to search the entire warehouse.” (ER 2 37) The court

concluded that suppression was not required because the good faith

exception applied. (ER 2 38)

2. Good Faith Exception

The court noted that the good faith exception applies where

officers have “relied on the search warrant in an objectively

reasonable manner.”


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The court found that none of the four circumstances

preventing the good faith exception applies in the case.

a. Whether the Affiant Misled the Judicial Officer by Making a False Statement or Recklessly Disregarded the Truth

The court found no evidence in the record that Officer

Jackson made any false statements or disregarded the truth in his

Affidavit and found no other indicia of bad faith. (ER I 40-41)

After taking oral testimony, the court found all three of the

government witnesses, including Officer Jackson credible. (ER I 22)

The court concluded that Officer Jackson did not mislead the state

court judge.

b. Whether the Judge Wholly Abandoned His Judicial Role in Approving the Warrant

Secondly, the court also found no evidence that the issuing

judge acted as an “adjunct law enforcement officer” or did anything

more than review the Affidavit for the purposes of making an

independent and neutral determination of probable cause. (ER I 42)

The court rejected the defense claims that the judge was a “rubber

stamp” because the signature page of the warrant did not include any

substantive text and the warrant failed to include an “Exhibit A”

providing the statutory definition of “drug-related paraphernalia.”

The court concluded that these alleged errors do not suggest that

the issuing judge failed to perform his job. There is no requirement


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that the signature page contain text unique to the particular warrant

and Officer Jackson included the Exhibit “A” to the Affidavit, which

was also part of the materials reviewed by the judge. The court

concluded there was no abandonment of the judge’s role in issuing

the warrant. (ER I 42-44)

c. Whether the Warrant is Facially Deficient in Detail as to the Place to be Searched

The court also rejected this exception, finding no facial

deficiency in the warrant. The warrant specifically identifies the

place to be searched by accurately providing the street address, tax

map key number and description and directions to its location. The

court further rejected the defense claim that there were “four

separate addresses for the warehouse” and concluded that the warrant

recites the correct address and this was proven by the government

at the hearing. (ER I 46-47)

d. Whether the Warrant is so Lacking in Indicia of Probable Cause That No Reasonable Officer Could Rely Upon It in Good Faith

The court found that the Affidavit easily establishes

probable cause that Defendant was selling methamphetamine from his

second floor apartment at the warehouse. The court also concluded

that the Affidavit provides at least a colorable argument for

probable cause to search the entire warehouse because defendant’s

living area within it had no unit number; the Affidavit explains the


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informants described Defendant lives on the second floor which is

accessible by three different sets of stairs. Additionally, the

affidavit establishes that although Defendant resides in only one

area of the warehouse, the informant Lewis said Defendant told him

he has two safes within the building and has access to all units within

the warehouse except for one which is secured by the business owners.

The court concluded that this suggests Defendant controls most areas

within the warehouse and drugs could be found almost anywhere, making

the entire warehouse “suspect.” The court concluded that the Ninth

Circuit has not defined what facts an affidavit must contain to

establish probable cause for control/access. The lack of guidance,

combined with the facts of the case was sufficient to create

disagreement among thoughtful and competent judges as to the

existence of probable cause. (ER I 50-52) The court concluded that

any ambiguity did not result in the officers extending their search

beyond the bounds of probable cause - they only searched defendant’s

living quarters. A reasonably well trained officer would not have

known that the search was illegal given all the circumstances. (ER

2 52)

3. Whether Warrant Described Items to be Seized

The court also rejected the defense arguments that the

warrant failed to describe the property to be seized. Officer

Jackson testified that the Search Warrant he presented to the state


15

court judge was the version relied upon on the date of execution and

the one left at the Sakuma studio after the search was completed,

as well as the version given to Sakuma after his arrest. (ER 2 301,

303-304) The court found that “Officer Jackson’s credible testimony

establishes that he presented Government’s Exhibit 3 for Judge

Florendo’s signature, and that this was the warrant that was executed

on Defendant’s residence.” (ER I 53-54) During the suppression

hearing, the defense introduced three other versions of the residence

search warrant in order to confuse the issue and further the claim

that the warrant lacked particularity. One was an attachment to the

Affidavit of Officer Mekia Rose in Support of a Search Warrant for

Computer Laptop (hereafter, “Computer Search Warrant”). (ER I

153-154) The Sakuma residence attachment to the Computer Search

Warrant did not contain the list of property to be searched. Officer

Jackson testified that he did not prepare Officer Mekia Rose’s

Affidavit or the Computer Search Warrant and did not give Officer

Rose a copy of the warrant he prepared for Sakuma’s residence. He

could not explain why the version attached to the Computer Search

Warrant affidavit was different from the one he executed and served

on the defendant.2 (ER 2 319-321, 340-341) He testified that other

2 The Sakuma search warrant attachment to the Mekia Rose affidavit was not a filed or certified copy.


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officers have access to his computer and documents.3 (ER 2 341)

Judge Seabright rejected the defense argument that because there were

different versions of the Jackson affidavit, it was impossible to

know which version was actually presented to the state court judge

for issuance:

Officer Rose’s Affidavit establishes at most only that he attached an earlier, incomplete version of the warrant to his November 18, 2011 Affidavit—it does not establish that the warrant signed by Judge Florendo and executed on the warehouse failed to describe the property to be seized. Rather, Officer Jackson’s credible testimony establishes that he presented Government’s Exhibit 3 for Judge Florendo’s signature, and that this was the warrant that was executed on Defendant’s residence. (ER I 53-54)

The “second version” of the warrant introduced by the

defense was one that was attached to a follow up Search Warrant for

Sakuma’s Storage Locker (hereafter, Storage Locker Search Warrant).

This version misspells Sakuma’s street address as “Makai’i Place”

instead of “Maka’i Place.” (SER 13-14) There were no other

substantive differences in the warrant. This warrant was not

challenged in Sakuma’s suppression motion and the government did not

intend to offer any evidence recovered from the storage locker.4

3 The government did not intend to use any of the evidence recovered from the Computer Search Warrant at trial and made representations to that effect. (ER 2 264-265) 4 The court rejected defense claims of “tampering:” (Judge Seabright): “It has not been tampered. There’s no evidence that anyone’s tampered with it. The only substantive difference that I see is an extra I in the street name. That’s the only substantive


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The “third version” of the warrant was introduced by

Priscilla Basques, Sakuma’s friend, during her testimony at the

suppression hearing. Basques testified that she recovered Sakuma’s

personal belongings from the jail, including the warrant which was

given to him by Officer Jackson while in custody the day after the

warrant was executed. (ER 2 387-389; SER 1-2) Basques said she

reviewed Government’s Exhibit 3 which was the warrant Officer Jackson

testified was issued by the court and executed on November 15, 2011

and it was not the same as the one Jackson served on Sakuma. (ER

I 113-114) Judge Seabright did not find Basque credible and stated

in his Order, “. . . based on her demeanor and manner of testifying,

the court does not credit Priscilla Basque’s testimony, who appeared

primarily motivated to assist Defendant through any means possible.”

(ER 2 23) Judge Seabright made short shrift of the defense attempt

to suggest nefarious motives on the police’s part in generating

different versions of the same warrant and rejected the notion that

it was unclear exactly what warrant was executed at the Sakuma

residence. The court’s order addressed this point:

“Priscilla Basque, a friend of Defendant, testified that she picked up Defendant’s belongings from the jail, and that the warrant included with Defendant’s belongings was not the same as the one left at Defendant’s apartment.

difference that I see between the two. It’s hard to imagine-if you’re arguing that there’s some really bad faith activity going on here, something very underhanded and something is being made up-it’s hard to imagine over that-why would anyone do that?” (ER 2 400)


18

Other than some formatting differences, the only substantive difference between the two warrants is that the one which Basque asserts she picked up from the jail misspells Defendant’s street address as “Makai’i Place” instead of “Maka’i Place.” Officer Jackson inadvertently attached this version of the search warrant (with the misspelled street address) to a follow up Affidavit for Search Warrant to search a storage container rented by Defendant that is not at issue in this action. (cite omitted.) Based on Basque’s demeanor in testifying, the court does not find her credible. And in contrast to Basque’s testimony, Officer Jackson credibly testified that he provided the correct search warrant (Govt’s Ex. 3) as signed by Judge Florendo to Defendant. Because the court credits Officer Jackson’s testimony and discredits Basque’s testimony, the court finds that Defendant was provided a correct copy of the November 15, 2011 search warrant.” (ER I 32-33)

Finally, the court rejected the defense arguments

regarding violations of the “knock and announce” rule as well as

failures to serve the warrant. Neither of these issues are the

subjects of this appeal.

V. STANDARDS OF REVIEW

A. The district court’s denial of a motion to suppress evidence

is reviewed de novo. United States v. Cervantes, 678 F.3d 798, 802

(9th Cir. 2012); United States v. Dorsey, 418 F.3d 1038, 1042 (9th Cir.

2005), overruled on other grounds by Arizona v. Gant, 556 U.S. 332,

343-44 (2009); United States v. Crawford, 372 F.3d 1048, 1053 (9th

Cir. 2004), cert. denied, 543 U.S. 1057 (2005); United States v. Meek,

366 F.3d 705, 711 (9th Cir. 2004); United States v. Bynum, 362 F.3d

574, 578 (9th Cir. 2004); United States v. Fernandez-Castillo, 324


19

F.3d 1114, 1117 (9th Cir.), cert. denied, 540 U.S. 959 (2003); United

States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001). The district

court’s factual findings are reviewed for clear error. United

States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009); United States v.

Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003); United States v. Gamez,

301 F.3d 1138, 1144 (9th Cir. 2002), cert. denied, 538 U.S. 1067

(2003).

B. Whether Officer Jackson’s affidavit contained sufficient

probable cause to search the warehouse is a mixed question of law

and fact and subject to de novo review. United States v. Vesikuru,

314 F.3d 1116, 1122 (9th Cir. 2002); United States v. Parks, 285 F.3d

1133, 1141 (9th Cir. 2002). The scope of a warrant is a question of

law reviewed de novo. United States v. Cannon, 264 F.3d 875, 878

(9th Cir. 2001).

C. Whether the good faith exception to the exclusionary rule

applies in any given case is subject to de novo review. United States

v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013); United States v.

Crews, 502 F.3d 1130, 1136 (9th Cir. 2007); United States v. Kurt,

986 F.2d 309, 311 (9th Cir. 1993).

VI. SUMMARY OF ARGUMENT

A. There is no evidence of police misconduct or recklessness

where the property address and description were accurately

identified and described and the officers conducted a thorough


20

investigation regarding the property, corroborated informant

information and included all that information in the search warrant.

B. The warrant for Sakuma’s residence was not overbroad

because there was probable cause for searching the entire warehouse

where the information contained in the affidavit supported a finding

that although Sakuma resided in a second floor “studio” in the

warehouse, he exercised dominion and control over the entire premises

and had access to the entire premises during the night and day, and

was responsible for maintenance of the entire premises with keys for

the premises.

C. The warrant described the property to be searched and the

items to be seized with particularity where the warrant contained

a detailed description of the street address, tax map key number,

directions to the property and attached a google map which was

associated with the defendant’s residence and the items to be seized

were listed in detail within the warrant.

D. Even if the warrant was deficient, the good faith exception

applies because the officers relied on the search warrant in an

objectively reasonable manner and did not mislead or make false

statements in the affidavit. Nor was there evidence that the issuing

judge abandoned his judicial role in approving the warrant. The

warrant was not facially deficient and described the property to be

searched in detail and with specificity and contained sufficient


21

probable cause for a search of the entire premises which was under

the defendant’s control.

VII. ARGUMENT

A. There is No Evidence of Police Misconduct or Recklessness in Connection With Preparation or Execution of the Warrant

Sakuma makes the bold statement that his Fourth Amendment

rights were violated by reckless conduct on the part of the Hawaii

County Police Department. (See page 22, Part A of Sakuma Opening

Brief.) The only support for this assertion is: “. . . Hawaii

county police officers recklessly prepared the warehouse search

warrant and affidavit in support of search warrant by omitting

relevant information about the multi-occupancy character of the

warehouse. The police officers failed to perform a minimal amount

of investigation, which resulted in the omission and representation

of information contained in the affidavit supporting the search

warrant.”

District Judge Seabright found otherwise and the record

supports the court’s findings. The court found all government

witnesses, including Officer Jackson credible. (ER I 22-23)

Officer Jackson’s Affidavit sets forth the information learned from

the investigation regarding Sakuma’s residence, including the

information received from two informants with respect to where Sakuma

lived. One, Lewis described defendant as having a “studio style


22

apartment on the second level which is secured by a door and gold

key locking mechanism.” “There are three separate sets of stairs

leading to the upper level of the warehouse.” (ER I 24) Under the

“Building Description” section of the warrant, the affidavit

describes the warehouse as one physical address, “74-592 A Hale

Maka’i Place.” (ER I 26) The Affidavit also set forth detailed

directions to the residence and a google map and tax map key

description were also attached as exhibits. (ER I 125-126, 137)

Officer Jackson testified that although he knew there were several

units within the warehouse, defendant’s specific space had no

official unit number. (ER I 26) Officer Jackson also testified

that he interviewed the owners of the warehouse for more information

concerning the premises. (ER 2 283-284) Accordingly, there is no

basis for the claim that the officers failed to perform any

investigation or made misrepresentations concerning the property.

The defense also imputes wrongful motive in the fact that

there are three versions of the Sakuma warehouse affidavit. The

first, (Government Exhibit 3; ER I 113-114) was the one Officer

Jackson testified was the one he submitted to the state court judge

for signature. This was the one which was issued and executed on

the Sakuma property. A copy of this warrant was left at the warehouse

after the search and given to Sakuma at the police station several


23

days later. (ER I 300-303) Judge Seabright specifically found

Officer Jackson’s testimony on this point credible. (ER I 33)

The second version was a copy of the Sakuma search warrant

which is referenced in and attached to Officer Mekia Rose’s affidavit

submitted in support of a follow up computer search warrant. (ER

I 153-154) The paragraph listing the items to be seized on the Sakuma

search warrant attached to the Rose warrant are blank. Officer

Jackson testified that he did not prepare Officer Rose’s affidavit,

did not provide him with a copy of Sakuma’s search warrant and could

not explain why Officer Rose’s affidavit had a different version of

the Sakuma search warrant attached to it. (ER I 142-154) Officer

Jackson testified that other officers have access to his computer

files. (ER 2 320-321) This version is not a filed stamped copy nor

is it a certified copy of the original Sakuma search warrant.

The third version was introduced by Sakuma’s friend,

Priscilla Basques who claimed this copy was the one Officer Jackson

served on Sakuma while he was in custody. (ER 2 387-388; SER 3-31)

Judge Seabright did not find Basques credible and noted that the only

difference between the third version and Government’s Exhibit 3 was

the misspelling of the street name. (ER 2 398-399; ER I 22-23, 33)

The district court’s factual findings should not be

disturbed absent clear error and should be accorded due deference.

United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004); United


24

States v. Christakis, 238 F.3d 1164 (9th Cir. 2001). Judge

Seabright’s findings of facts concerning the credibility of Officer

Jackson and other government witnesses were well supported by the

record. Judge Seabright’s findings of fact rejecting Sakuma’s

allegations of misconduct or implied improper motives based on the

different versions of search warrant should also be accorded due

deference. There is no basis for any claims of police misconduct

and recklessness.

B. The Warrant was Not Overbroad in Authorizing a Search of the Defendant’s Warehouse Residence Where Defendant Had Access and Control to the Entire Warehouse and There was Probable Cause to Believe that the Entire Warehouse was Suspect

The Ninth Circuit has upheld warrants in multi-unit or

larger properties where there is probable cause to believe that the

defendant exercised control of the entire premises or the entire

premises was suspect. In Alexander v. United States, 761 F.2d 1294

(9th Cir. 1985), a warrant authorizing a search of an entire forty

acre ranch which included a mobile home, several abandoned vehicles

and two sheds was challenged as overbroad and failed for lack of

particularity. Id. at 1300. Because defendant did not contend that

the ranch was insufficiently identified, the court characterized the

defendant’s challenge as one based on lack of probable cause rather

than particularity and concluded that the warrant would be upheld

if probable cause existed to search each building, or if all the


25

buildings were under common control. Id. at 1301. Citing to United

States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980), cert. denied,

450 U.S. 1004 (1981), the court noted that the warrant is valid where

it authorizes the search of a street address with several dwellings

if the defendants are in control of the whole premises, if the

dwellings are occupied in common, or if the entire property is

suspect. Id. The court concluded that probable cause existed to

search the entire ranch. The probable cause included:

observations by police that chemicals used in cocaine manufacturing

were delivered to the ranch; the driver of vehicles and persons in

connection with these transactions had engaged in cocaine

trafficking in the past; one informant had been on the ranch and told

police a cocaine factory was being constructed there; and two others

also provided information that a cocaine factory was being

constructed on the ranch. Id. at 1300.

The court stated that the ranch was rural, undeveloped and

without permanent structures. The defendant owned the entire ranch

which was under his admitted control. The court rejected the defense

argument that a small trailer was not specifically mentioned in the

warrant. Id. at 1301. This did not make the warrant overbroad.

The officers’ access to the ranch was limited. The contraband was

of a type that could be hidden easily in any structure. The court

ultimately concluded that because the defendant owned and controlled


26

the entire ranch, the warrant to search all 40 acres was not

overbroad. The fact that other people occupied the property did not

affect the court’s analysis. Id.

United States v. Gilman, 684 F.2d 616, 617 (9th Cir. 1982)

involved a warrant to search “924 Grove Street” a building which

contained multiple units, including offices and residential units.

The affidavit recited probable cause for a portion of the premises

only although the warrant authorized a search of the entire building.

The court held that the general rule voiding the warrant for an

undisclosed multiunit structure does not apply if the defendant was

in control of the whole premises. The court rejected any contention

that the officers intentionally omitted facts revealing the

multi-unit character of the premises. There was indication that the

defendant was in control of the entire premises. Id. at 618.

Both these cases are factually similar to the instant case.

The Jackson affidavit contained information that although Sakuma

lived in a portion of the warehouse on the second floor, he was

responsible for maintenance and had keys for the entire premises.

His control and access to the entire warehouse, which was a

multi-office/unit structure was unfettered except for “one location

which was secured by the owners.” (ER I 121) The affidavit also

noted that Sakuma used safes in the warehouse to store his drugs and


27

seldom left the warehouse, directing others to make his drug

deliveries. (ER I 122)

In United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995),

the same rule was applied for a warrant for a three flat residence

in Chicago, the headquarters of a reputed gang leader. The court

easily found no dispute there was probable cause to search the

defendant’s second floor apartment. Id. at 249. The court found

that the affidavit which provided information that the defendant

exercised dominion and control over the entire three flats, including

the first floor of the apartment provided probable cause for the

“single unit exception” for the entire building. Id. See also,

Mena v. City of Simi Valley, 226 F.3d 1031, 1038 (9th Cir. 2000)

(restating holding from Alexander that warrant valid where

authorizes street address with several dwellings if defendants are

in control of premises); United States v. Whitney, 633 F.2d 902, 908

(9th Cir. 1980) (search upheld where warrant authorized entire search

of one building which had two apartments where defendant had control

of the entire residence). Cf, Clark v. United States, 638 F.3d 89

(2d Cir. 2011) (Informant’s uncorroborated statement that defendant

exercised full control over multi family dwelling insufficient to

establish probable cause for search of entire building but good faith

exception applied to warrant).


28

The Sakuma affidavit sets forth ample probable cause for

search of Sakuma’s second floor “studio” apartment. The affidavit

also contains a substantial basis for the judge to find probable cause

to believe that Sakuma exercised “dominion and control” over the

entire warehouse, based on:

1. Informant Lewis’ information that Defendant kept

methamphetamine “within a safe inside the warehouse.” (ER I 122)

2. Informant Lewis’ information that Sakuma told him “that he

has two safes within the building and that he has access to all units

within the warehouse except for one which is secured by the business

owners.” (ER I 121)

3. Informant Lewis’ information was corroborated by Defendant

Cho’s arrest coming from the Sakuma warehouse in possession of drugs.

(ER I 122-125)

4. Other independent sources provided information that Sakuma

sells methamphetamine throughout the day and night and has others

transport the methamphetamine to various people. Sakuma rarely

leaves the warehouse with methamphetamine for fear of being arrested.

(ER I 122)

Judge Seabright found “these facts suggest that Defendant

had control of most areas within the warehouse, or at the very least

that drugs could be found almost anywhere within the warehouse,

making the entire warehouse “suspect.” (ER I 51)


29

Under the Alexander and other cases, there is probable

cause for the warrant authorizing the officers to search the entire

warehouse under the theory that Sakuma had control and dominion over

the entire building and that based on information in the affidavit,

the entire warehouse was suspect. Accordingly, there was probable

cause to search the entire premises.

C. The Warrant Described the Property with Particularity, as well as the Property to be Seized

Sakuma argues that the warrant and affidavit were lacking

in particularity as to the items to be seized. The list of items

to be seized includes:

1. Methamphetamine and derivatives of same;

2. Drug related paraphernalia as defined by the Hawai’i Revised Statutes Section 329-1 of the Hawai’i Revised Statutes, described in Exhibit A and attached hereto;

3. Articles of personal property tending to establish the

existence of a conspiracy to use, sell, and transport methamphetamine including but not limited to personal telephone books, address books, telephone bills, papers, and papers containing lists of names, addresses and phone numbers of narcotics customers and suppliers, evidence of proceeds from sales of illegal drugs including but not limited to bank and financial statements such as deposit receipts and monthly statements, wire transfer receipts, and safe deposit box receipts;

4. Articles of personal property tending to establish the

identity of persons in control of the described residence, property, storage areas and containers being searched, to include but not limited to Certificate of Registration, Safety Check Certificates, No-Fault Insurance Cards, gasoline/automobile service, utility company receipts, rental agreements and receipts, addressed envelopes,


30

court documents, personal identification, cellular phones, keys, photographs, video tapes of suspect(s) and their associates;

5. Any proceeds resulting from methamphetamine and other

illegal drug derivatives sales or transactions including monies, money orders, cashier’s checks, jewelry and traveler’s checks;

6. Firearms and ammunition for said firearms found at or near

controlled substances such as methamphetamine. (ER I 113) Sakuma’s main complaint is that Item 2, “Drug Related

Paraphernalia as defined by the Hawai’i Revised Statutes Section

329-1 of the Hawaii Revised Statutes, described in Exhibit A and

attached hereto” is lacking because Exhibit A, a copy of the Hawaii

statute was not attached to the warrant, but instead was attached

to the Affidavit in support of the warrant.5 Officer Jackson

testified that he attached Exhibit A to the affidavit and did not

realize it should have been attached to the warrant itself. (ER 2

305-307) Judge Seabright found that “although the warrant could

have been more detailed by providing the definition of drug related

paraphernalia in HRS Section 329-1, numerous courts have found that

a warrant allowing seizure of “drug paraphernalia” is not too

indefinite to render a warrant invalid (cites omitted) and that the

warrant’s authorization to seize “drug related paraphernalia”

without providing the statutory definition meets the particularity

5 Sakuma also makes reference to an “Exhibit “B,” but there was no such reference in the Search Warrant. (ER I 130)


31

requirement.” (ER I 55-56) Item 3 on the list of property to be

seized includes “articles of personal property tending to establish

the existence of a conspiracy to use, sell and transport

methamphetamine” which would also cover drug-related paraphernalia.6

United States v. Mann, 389 F.3d 869, 877 (9th Cir. 2004) (warrant met

particularity requirement which allows officers to seize “any

dangerous drugs and drug paraphernalia”); United States v. Moore,

149 F.3d 773, 783 (8th Cir. 1998) (warrant’s reference to “drug

paraphernalia” not impermissibly broad or vague); United States v.

Baldwin, 987 F.2d 1432, 1436 (9th Cir. 1993) (scale, mirror and vial

are within warrant’s description of “paraphernalia used to weigh,

store and distribute cocaine”). Moreover, even if the warrant was

not sufficiently particularized because it did not attach Exhibit

“A,” the good faith exception applies and the evidence should not

be suppressed. None of the four exceptions to application of the

good faith exception as discussed in part D below apply.

D. The Good Faith Exception Applies in This Case Because the Officers Relied on the Search Warrant in an Objectively Reasonable Manner

Even if the court finds that the warrant lacked probable

cause or was overbroad and not sufficiently particular, the search

falls within the good faith exception. The Supreme Court has framed

6 The items the officers seized within this category included a glass pipe, several scales, a cut straw and ziplock baggies.


32

the issue as whether a reasonably well trained officer would have

known that the search was illegal in light of all the circumstances.

United States v. Leon, 468 U.S. 897, 925 (1984). Unless one of the

four following circumstances exist, the exclusionary rule will not

apply to the search: (1) where the issuing judge was knowingly

misled; (2) where the issuing judge wholly abandoned his/her judicial

role; (3) where the application is so lacking in probable cause as

to render reliance on it unreasonable; or (4) the warrant is so

facially deficient that reliance upon it is unreasonable. Leon,

supra, at 923. Judge Seabright found that none of these four

circumstances existed and therefore suppression was not appropriate.

(ER I 37-52)

1. There was No Evidence that Officer Jackson Misled the State Court Judge by Making a False Statement or recklessly Disregarded the Truth

The Jackson Affidavit provided sufficient information to

enable the issuing judge to know there were other individuals in the

warehouse with interests separate and apart from Sakuma. While

Sakuma was the only “resident,” the affidavit expressly noted the

presence of “D & M Hydraulics” and of “John Deere.” The affidavit

also contained information that Sakuma had access to “all units

within the warehouse except for one which is secured by the business

owners,” (ER I 119, 125-126) thereby indicating there were multiple

businesses within the warehouse. (ERI 119, 121, 125-127)


33

Additionally, the affidavit outlines in detail the

location of the warehouse and the facts supporting probable cause.

There is nothing in the record to even suggest that any statements

were false or misleading. (ER I 41)

Sakuma argues that the Jackson affidavit was misleading

and that CI#1’s7 information was not substantiated. Therefore,

there was no basis upon which the issuing judge could conclude the

information was reliable. (Opening Brief at page 36) This claim

is contradicted by information provided by a second CI#28 which

corroborates much of the information provided by CI#1-(that Sakuma

sold methamphetamine and had large quantities of methamphetamine

stored at his residence). (ER I 124-125) Moreover, CI#2 was

surveilled by police leaving Sakuma’s residence, arrested, and found

to be in possession of methamphetamine distributed to him by Sakuma.

(ER I 123-124)

The defense also argues that CI#1 was willing to purchase

drugs from Sakuma but “this purchase never materialized.” (Opening

Brief at page 34) The Jackson Affidavit sets forth four separate

pound quantity methamphetamine purchases CI#1 made from Sakuma. (ER

I 119-120) Accordingly, the record does not support defense claims

7 CI#1 was identified as Donald Lewis, his full name in the Jackson Affidavit. (ER I 119) 8 CI#2 was fully identified as Jeffrey Cho. (ER I 122)


34

and Judge Seabright found that Officer Jackson did not mislead the

issuing judge and there was no evidence in the record that any false

statements were made that Jackson disregarded the truth nor any

indicia of bad faith. (ER I 40-41)

2. There was No Evidence the State Judge Wholly Abandoned His Judicial Role in Approving the Warrant

There is no evidence whatsoever that the state court judge

acted as a “rubber stamp” or “adjunct law enforcement officer,” or

did anything more than review the affidavit to make an independent

and neutral determination of probable cause. Sakuma fails to point

to anything in the record which lends support to the argument that

the judge wholly abandoned his judicial role.

Sakuma makes much of the fact that an “Exhibit B,” a google

map, was missing from the search warrant and not attached to the

search warrant. (Sakuma Opening Brief at pages 42-43) Exhibit “B”

is not referenced anywhere in the search warrant. (ER I 113-114)

“Exhibit B” is referenced on page 8 of Officer Jackson’s Affidavit

as being attached to the affidavit. (ER I 126) Exhibit “B” is in

fact attached to the affidavit. (ER I 132) Accordingly, Jackson’s

statements regarding Exhibit “B” are accurate and the exhibit was

properly included for review by the judge. Judge Seabright found

that this exception to the good faith exception was inapplicable.

(ER I 23-24)


35

3. Whether the Warrant is Facially Deficient in Detail as to the Place to be Searched

The third exception to the good faith exception is where

a warrant is facially defective when it omits or misstates

information specifically required to be contained therein- e.g., the

place to be searched and the persons or things to be seized. Thus,

a warrant that is facially deficient exists where “officers poised

to conduct a search should be able to ascertain that such a warrant

fails to offer sufficiently detailed instruction and instead leaves

them guessing as to their task.” United States v. Towne, 997 F.2d

537, 549 (9th Cir. 1993), citing to Ortiz v. Van Auken, 8878 F.2d 1366,

1370 (9th Cir. 1989). As Judge Seabright found, the Sakuma warrant

was not so lacking. The warrant specifically identified the place

to be searched by accurately providing the address, tax map key

number, and description of the warehouse, as well as directions to

its location. (ER I 46-47, 113) “Given this correct and particular

description, there is simply no basis to find that executing officers

could not reasonably presume the warrant to be valid from its face.”

(ER I 47) Additionally, it described in detail six specific

categories of items to be seized. (ER I 113) See also, United

States v. Clark, 638 F.3d 89, 102 (2d Cir. 2011) (warrant not facially

deficient where identified by street address and plot number and

items to be seized). This exception also was inapplicable as the


36

warrant specifically detailed the property location, as well as the

items to be seized.

4. Whether the Warrant was so Lacking in Probable Cause so as to Render Reliance on it Unreasonable

As previously argued in part VI. B, supra, there was more

than sufficient bases to support a finding that probable cause

existed to search the Sakuma warehouse. Even if the court disagrees,

the probable cause is not so lacking as to preclude the officers from

relying on the warrant. For the good faith exception to apply, the

affidavit must establish a “colorable argument for probable cause”

which is “sufficient to create disagreement among thoughtful and

competent judges as to the existence of probable cause.” Leon, supra

at 923, 926. The Jackson Affidavit established more than a colorable

argument for probable cause.

Officer Jackson’s affidavit contains information from two

identified informants, Lewis and Cho who corroborated each other

regarding Sakuma’s residence in the warehouse and his storage of

methamphetamine there. One of them, Jeffrey Cho, was surveilled

leaving the Sakuma warehouse, arrested and found to be in possession

of methamphetamine which he had just received from Sakuma. (ER I

122-124) The information from both these informants created a

reasonable nexus between Sakuma’s drug distribution and possession

and the search location. Information concerning Sakuma’s control


37

and access to the entire warehouse location which was described as

one address was also obtained from Cho and Lewis, as well as other

sources of information. (ER I 119-125) Under the Alexander case,

supra and other Ninth Circuit cases, the defendant’s control of a

multi-unit premises affords a probable cause basis to search the

entire premises. Judge Seabright found as much, concluding that the

Affidavit was not so lacking in indicia of probable cause that no

reasonable officer could rely upon it in good faith. (ER I 52)

VIII. CONCLUSION

WHEREFORE, for all of the foregoing, the United States

requests that Sakuma’s conviction be affirmed in all respects.

DATED: February 12, 2014, at Honolulu, Hawaii.

Respectfully submitted,

FLORENCE T. NAKAKUNI United States Attorney District of Hawaii

By s/ Beverly Wee Sameshima BEVERLY W. SAMESHIMA Assistant U.S. Attorney

Attorney for Plaintiff-Appellee UNITED STATES OF AMERICA


CERTIFICATION OF RELATED CASES

Pursuant to Rule 28-2.6, Rules of the United States Court of

Appeals for the Ninth Circuit, Appellee United States of America,

by and through its undersigned attorney, hereby certifies that it

is unaware of any other pending cases related to this appeal.

DATED: February 12, 2014, at Honolulu, Hawaii.

By s/ Beverly Wee Sameshima BEVERLY WEE SAMESHIMA

Assistant U.S. Attorney


Certificate of Compliance Pursuant to Fed. R.App. 32(a)(7)(C)and Circuit Rule 32-1 for Case Number 13-10317 (see next page) Form Must Be Signed By Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief I certify that: (check appropriate options(s)) X 1. Pursuant to Fed.R.App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the attached

opening/answering/reply/cross-appeal brief is

Proportionately spaced, has a typeface of 14 points or more and contains ________ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words, reply briefs must not exceed 7,000 words),

or is

☒ Monospaced, has 10.5 or fewer characters per inch and contains 8,451 words or

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2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P.

32(a)(7)(B) because

This brief complies with Fed.R.App.P. 32(a)(1)(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;

This brief complies with a page or size-volume limitation established by separate

court order dated and is

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3. Briefs in Capital Cases This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is

Proportionately spaced, has a typeface of 14 points or more and contains_____ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words)

or is

Monospaced, has 10.5 or fewer characters per inch and contains _______ words or _______ lines of text opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

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Pursuant to Fed.R.App.P. 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less,

or is

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Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32(a)(1)(5).

February 12, 2014 s/ Beverly Wee Sameshima Date Signature of Attorney or Unrepresented Litigant


CERTIFICATE OF SERVICE

I hereby certify on February 12, 2014 , I electronically filed

the foregoing with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF

system.

s/ Dawn Aihara


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · 2014-10-08 · District Judge J. Michael...

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Transcript of IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · 2014-10-08 · District Judge J. Michael...