Skinner v. Mountain Lion Acquisition, Inc et al

Filing 77

DOCUMENT ENTERED IN WRONG CASE - PLEASE DISREGARD(jjoS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,

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For the Northern District of California

United States District Court

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No. CR 13-00704-1, 2 JSW

v.

NOTICE OF QUESTIONS FOR
HEARING

VALENTIN CORTEZ GARCIA and ULYSES
CORTEZ CONTRERAS,

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Defendants.
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/

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE
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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON
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JUNE 24, 2014 at 1:00 p.m.:
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The Court has reviewed the parties’ papers and does not want to hear the parties reargue
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matters addressed in those papers. If the parties intend to rely on authorities not cited in their
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briefs, they are ORDERED to notify the Court and opposing counsel of these authorities
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reasonably in advance of the hearing and to make copies available at the hearing. If the parties
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submit such additional authorities, they are ORDERED to submit the citations to the authorities
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only, with reference to pin cites and without argument or additional briefing. Cf. N.D. Civil
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Local Rule 7-3(d). The parties will be given the opportunity at oral argument to explain their
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reliance on such authority.
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Contreras Motion to Suppress Evidence
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1.

What material facts does Defendant contend are in dispute, with respect to whether the

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silencer was located in plain view?

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2.

Does Defendant have any authority to suggest that the amount of time that elapses

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before an item is alleged to have been found in plain view is legally significant to the

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analysis?

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Motion to Traverse and Quash the Search Warrant and Suppress Evidence

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As a threshold matter, the Government has discussed facts regarding three purchases

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that are not discussed in the Search Warrant Affidavit. Unless the Government can provide

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legal authority as to why those facts would be relevant to the instant motion, the Court shall not

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consider them and it shall not hear argument about those facts.

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1.

Would the Government agree that the sole nexus to the Defendants’ residence is Officer
Jacobo’s statement regarding his experience and consultation with other officers, as set

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For the Northern District of California

United States District Court

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forth at page VCG-UCC-0198 of the Affidavit in Support of the Search Warrant?

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2.

“Expert opinion may also be considered in the totality of the circumstances analysis for

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probable cause. ... [H]owever, if the government presents expert opinion about the

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behavior of a particular class of persons, for the opinion to have any relevance, the

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affidavit must lay a foundation which shows that the person subject to the search is a

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member of the class.” United States v. Underwood, 725 F.3d 1076, 1081-82 (9th Cir.

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2013).

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Defendant Garcia argues, in reply, that Officer Jacobo failed to establish that the

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firearms traffickers - the class of persons at issue - would keep evidence of their illegal

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fire arms sales at their homes, because he stated that he has learned that “persons who

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possess and purchase firearms and ammunition do so for their personal use and as such

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keep the firearms for an extended period of time [and] ... are typically maintained on

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their persons or in their residences....” (Search Warrant Affidavit at VCG-UCC-0198.)

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What is Defendant’s best argument that the following paragraphs do not suggest that

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firearms traffickers would keep evidence of illegal gun sales at their residences?

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3.

The Ninth Circuit has held that “[b]ased on the nature of the evidence and the type of

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offense, a magistrate may draw reasonable inferences about where evidence is likely to

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be kept.” United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992). It has also
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repeatedly concluded that, in cases of drug dealing, evidence is likely to be found in a

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dealer’s residence. See, e.g., United States v. Gil, 58 F.3d 1414, 1418-19 (9th Cir. 1995)

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(citing cases). The Government relies on a number of these cases to support its

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argument that there was probable cause to search Defendants’ residence. (See Opp. Br.

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at 13:12-20.) Defendant argues that these cases are “inapposite and unpersuasive.”

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Although this is not a drug case, does Defendant have any authority to suggest that the

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principle articulated by the Ninth Circuit could not be extrapolated to gun cases?

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4.

What is the Government’s best argument that the fact that the agents made the purchases
from a lawful parts business would not have been material to the determination that
probable cause existed to search the residence?

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: June 23, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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