Skinner v. Mountain Lion Acquisition, Inc et al

Filing 77


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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, Plaintiff, 11 For the Northern District of California United States District Court 10 12 No. CR 13-00704-1, 2 JSW v. NOTICE OF QUESTIONS FOR HEARING VALENTIN CORTEZ GARCIA and ULYSES CORTEZ CONTRERAS, 13 Defendants. 14 / 15 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE 16 NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON 17 JUNE 24, 2014 at 1:00 p.m.: 18 The Court has reviewed the parties’ papers and does not want to hear the parties reargue 19 matters addressed in those papers. If the parties intend to rely on authorities not cited in their 20 briefs, they are ORDERED to notify the Court and opposing counsel of these authorities 21 reasonably in advance of the hearing and to make copies available at the hearing. If the parties 22 submit such additional authorities, they are ORDERED to submit the citations to the authorities 23 only, with reference to pin cites and without argument or additional briefing. Cf. N.D. Civil 24 Local Rule 7-3(d). The parties will be given the opportunity at oral argument to explain their 25 reliance on such authority. 26 Contreras Motion to Suppress Evidence 27 1. What material facts does Defendant contend are in dispute, with respect to whether the 28 silencer was located in plain view? 1 2. Does Defendant have any authority to suggest that the amount of time that elapses 2 before an item is alleged to have been found in plain view is legally significant to the 3 analysis? 4 Motion to Traverse and Quash the Search Warrant and Suppress Evidence 5 As a threshold matter, the Government has discussed facts regarding three purchases 6 that are not discussed in the Search Warrant Affidavit. Unless the Government can provide 7 legal authority as to why those facts would be relevant to the instant motion, the Court shall not 8 consider them and it shall not hear argument about those facts. 9 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 11 For the Northern District of California United States District Court 10 forth at page VCG-UCC-0198 of the Affidavit in Support of the Search Warrant? 12 2. “Expert opinion may also be considered in the totality of the circumstances analysis for 13 probable cause. ... [H]owever, if the government presents expert opinion about the 14 behavior of a particular class of persons, for the opinion to have any relevance, the 15 affidavit must lay a foundation which shows that the person subject to the search is a 16 member of the class.” United States v. Underwood, 725 F.3d 1076, 1081-82 (9th Cir. 17 2013). 18 Defendant Garcia argues, in reply, that Officer Jacobo failed to establish that the 19 firearms traffickers - the class of persons at issue - would keep evidence of their illegal 20 fire arms sales at their homes, because he stated that he has learned that “persons who 21 possess and purchase firearms and ammunition do so for their personal use and as such 22 keep the firearms for an extended period of time [and] ... are typically maintained on 23 their persons or in their residences....” (Search Warrant Affidavit at VCG-UCC-0198.) 24 What is Defendant’s best argument that the following paragraphs do not suggest that 25 firearms traffickers would keep evidence of illegal gun sales at their residences? 26 3. The Ninth Circuit has held that “[b]ased on the nature of the evidence and the type of 27 offense, a magistrate may draw reasonable inferences about where evidence is likely to 28 be kept.” United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992). It has also 2 1 repeatedly concluded that, in cases of drug dealing, evidence is likely to be found in a 2 dealer’s residence. See, e.g., United States v. Gil, 58 F.3d 1414, 1418-19 (9th Cir. 1995) 3 (citing cases). The Government relies on a number of these cases to support its 4 argument that there was probable cause to search Defendants’ residence. (See Opp. Br. 5 at 13:12-20.) Defendant argues that these cases are “inapposite and unpersuasive.” 6 Although this is not a drug case, does Defendant have any authority to suggest that the 7 principle articulated by the Ninth Circuit could not be extrapolated to gun cases? 8 9 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? 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: June 23, 2014 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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