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United States v. Miller

United States District Court, Ninth Circuit

June 20, 2013

United States of America, Plaintiff,
v.
Earnest Lee Miller, Defendant.

REPORT AND RECOMMENDATION

JACQUELINE M. RETEAU, Magistrate Judge.

In a four count Superseding Indictment filed on August 17, 2011, Defendant Earnest Lee Miller was charged with conspiracy to possess with intent to distribute marijuana and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 922, and possession of a firearm by a convicted felon in violation of was a convicted felon in possession of ammunition in violation of 18 U.S.C. §§ 922 and 924. On February 19, 2013, Miller filed a Motion to Suppress All Evidence Gathered Pursuant to Search Warrants and Fruits Thereof (Doc. 248). The Government filed a response (Doc. 260) and Miller filed a reply (Doc. 268). The Motion was heard by Magistrate Judge Rateau on May 28, 2013. Defendant Miller was present at the hearing and was represented by counsel. The Government presented the testimony of Homeland Security Investigations Special Agents David Slagle, Eric Feldman and Ian Cruikshank and Pima County Sheriff's Department Deputy Gary Halkowitz. Defendant Miller testified on his own behalf and also presented the testimony of Michael Kleving from Interstate Investigative Services. The witnesses were examined, cross-examined, and questioned by the Court. Having considered the matter, the Magistrate Judge submits the following Findings of Fact and Conclusions of Law and recommends that Defendant Miller's Motion be denied.

I. FINDINGS OF FACT

On the morning of February 5, 2011, Pima County Sheriff's Department Detective Gary Halkowitz was working with the Border Patrol canine unit at the Border Patrol Checkpoint located at milepost 22 of Arivaca Road. (Tr. 52-53.) A vehicle, which was towing a trailer, approached the checkpoint and Detective Halkowitz recognized it as belonging to Defendant Earnest Miller. (Tr. 53.) Detective Halkowitz was familiar with Miller's vehicle because he had 15 or 20 documented encounters with him and additional undocumented encounters. (Tr. 55.) Halkowitz was also familiar with the properties Miller frequented, including a property on which Miller lived which was located at 36335 Arivaca Ranch Road. (Tr. 55.)

A canine alerted to the trailer prompting agents to drill a hole in it and discover a large amount of marijuana in a hidden compartment. (Tr. 53.) The occupants of the vehicle, Rachel Mayber and Vanessa Martinez, both of whom were known to Detective Halkowitz as living on Defendant Miller's properly, were arrested, informed of their Miranda rights, and questioned by Detective Halkowitz. (Tr. 11, 54.) The two were then transported to the Border Patrol station in Tucson. (Tr. 11, 54.)

At approximately 10:00 a.m. on February 5, 2011, Homeland Security Investigations Agent David Slagle was informed by Border Patrol agents that the vehicle and a trailer belonging to Defendant Miller had been stopped at the Border Patrol checkpoint on Arivaca Road. (Tr. 10-11.) Detective Halkowitz transported Mayber to the Tucson Station so Agent Slagle could interview her. (Tr. 55.) Based on that interview, Agent Slagle believed that there was probable cause to apply for a search warrant for Defendant Miller's property. (Tr. 11-12.)

Agent Slagle then consulted with his supervisor, Agent Eric Feldman, who was familiar with the area where Miller's property was located, and together they prepared an application for a search warrant. (Tr. 12, 72.) During the preparation of the application, Agents Slagle and Feldman consulted with Detective Halkowitz, who had been at the scene of the arrest and had interviewed Mayber and Martinez. (Tr. 13, 56.) Halkowitz, who had worked in the area around Arivaca where Defendant Miller's property was located and who was familiar with the location and the structures on the property, provided Slagle with an overview of the property and the property address. (Tr. 13-15, 56-57.) Agent Slagle obtained additional information from Tucson Border Patrol intelligence agents and from Rachel Mayber, who identified the location of the property on Google Maps. ( Id., Tr. 16, 33.)

After getting the United States Attorney's approval, Agent Slagle telephonically applied for the warrant by calling United States Magistrate Judge Estrada and submitting the application via email. (Tr. 14-15.) Judge Estrada verbally approved on the warrant at 9:17 p.m. on February 5, 2011. (Tr. 15.) After Agent Slagle was given verbal approval of the warrant, he telephoned Agent Eric Feldman, who had traveled from Tucson and was at the property, at about 9:28 p.m. (Tr. 18-19.) After getting a signed copy of the warrant by fax from the judge at 9:37 p.m., Agent Slagle made copies and left for Arivaca at about 9:50 p.m. (Tr. 15, 20; Ex. 1 (Search and Seizure Warrant with fax stamp time)).[1]

On the face page of the warrant, the address of Defendant Miller's property is indicated as 36335 South Arivaca Ranch Road. (Ex. 1.) Attachment A to the warrant, which is a list of items to be seized, also indicates that the property address as 36335 South Arivaca Ranch Road. ( Id., Attach. A.) However, on attachment B to the warrant, which is a satellite photo and description of Miller's property, the address is identified as 36335 South Universal Ranch Road. ( Id., Attach. B.) Agent Slagle explained that the Arivaca Ranch Road address is correct and that he inadvertently substituted Universal Ranch Road, which is a nearby road, on Attachment B. (Tr. 15-16.)

After transporting Mayber to Tucson, Detective Halkowitz proceeded to Defendant Miller's Arivaca Ranch Road property to assist in securing the property and stationed himself to the rear of the location. (Tr. 60.) While at the property, he was informed by another deputy that two suspects were leaving the front entrance to the property in a Dodge Durango. (Tr. 61.) When Detective Halkowitz got to the front of the property, Defendant Miller and the man with him, Mario Noriega, had already been detained. Defendant Miller was handcuffed with his hands in front of him and was sitting in the backseat of a Pima County Sheriff's Deputy's vehicle with his infant child. (Tr. 61, 94.) Detective Halkowitz took Mr. Noriega, read him his Miranda rights, and questioned him. (Tr. 62.) He then went to the patrol vehicle in which Miller was detained and Miller requested he get a bottle for his child, which Halkowitz retrieved from the Durango. ( Id. )

While Slagle was applying for the warrant, Agent Feldman left Tucson and traveled to Miller's Arivaca property. (Tr. 73.) When he arrived at the property, Agent Feldman saw several marked sheriff's units on the scene, as well as vehicles belonging to Homeland Security Investigations agents parked on the road outside the property. He met with all the law enforcement officers on the scene and explained that Agent Slagle was in the process of obtaining the search warrant, described to the agents what buildings on the property would be searched and described how the search would be conducted. (Tr. 74-75.) Then, after receiving notice at about 9:30 p.m. from Agent Slagle that the warrant had been signed, Agent Feldman conducted a last minute head count, reminded the officers of safety precautions, and commenced searching the property. (Tr. 75-77.)

When Agent Slagle arrived in Arivaca at about 10:35 p.m. with a hard copy of the warrant, the search had already commenced. (Tr. 20.) When he arrived, Defendant Miller was still detained in the backseat of a Pima County Sheriff's deputy's car. He remained handcuffed and his infant child was still with him. (Tr. 21-22.) Although he does not know the precise time, Agent Slagle recalls that he gave a copy of the warrant to Miller and informed him about the search. (Tr. 21-22, 26-27, Ex. 1 (search warrant).) According to Defendant Miller, he was not given a copy of the warrant, but found it later lying in the driveway leading to his house. (Tr. 116.) Agent Slagle then proceeded to assist in the search, which Agent Feldman had paused after the property was cleared and recommenced when Agent Slagle arrived with the hard copy of the warrant. (Tr. 23, 78.)

A few days later, on February 8, 2011, Agent Slagle applied for a second warrant to search Defendant Miller's property at 36335 South Arivaca Ranch Road. (Tr. 23.) The second warrant includes an Attachment B similar to that used on the first warrant except that the incorrect Universal Ranch Road ...


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