People v. Devera

Opinion

•

1 so Rte COURT

2 20l8FE8,:g /PM 141 52

3 CLERK 0 OURT

4 By ?

5

6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE NO, CF0294-16 9

10 vs. DECISION AND ORDER

HECTOR c. DEVERA and MONICA ANN NINETE DEVERA, 13

14 Defendants,

15 INTRODUCTION

16 This matter came before the Honorable Vemon P. Perez on October 24, 2017, for a 17 continued Motion Hearing. Both defendants Hector C. DeVers and Monica Ann Nanete DeVera 18 filed their own respective suppression motions. Defendant Hector C. DeVera ("Hector") was 19 present with his counsel, Jeffrey A. Moots, and Co-Defendant Monica Ann Ninete DeVera 20 ("Monica") was present with her counsel, Howard Trapp. Assistant Attorney General James C.

21 Collins was present on behalf of the People of Guam ("the Government"). Having reviewed the 22 pleadings, the arguments presented, and the record, the Court now issues the following Decision 23 and Order. » 24 BACKGROUND

25 On May 16, 2016, Hector and Monica were each indicted with the following charges:

26 (1) Manufacture of a Schedule I Controlled Substance (As a First Degree Felony); (2)

27 Possession of a Schedule II Controlled Substance with Intent to Deliver (As a First Degree 28

People v. DeVora and DeVora Case No.CF0294-16 Decision and Order l

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ORIGINAL 3l

x Felony), (3) Possession of a Schedule II Controlled Substance (As a Third Degree Felony) - 2

2 Counts, and (4) Possession of More than an Ounce of Marijuana (As a Petty Misdemeanor).

3 (Indictment, May 16, 2016). These charges stem from the discovery of drugs and drug

4 paraphernalia at defendants' residence during the execution of a search warrant on May 5, 2016.

5 (Decl. of James C. Collins, Magistrate's Comal., May 7, 2016).

6 On June 8, 2016, Monica filed her Motion for the Suppression of Evidence, attaching a

7 copy of the executed search warrant and a copy of the affidavit in support of the warrant as 8 exhibits. On June 24, 2016, the Government filed its Opposition. On June 29, 2016, Monica

9 filed her Reply. 10 On August 10, 2016, at the first calendared Motion Hearing, Hector indicated he

requested a continuance to review the motion and file his own brief. On August 18, 2016, 12 Hector tiled his Motion to Suppress Evidence, joining in the Motion for Suppression of

13 Evidence filed by co-defendant Monica,

14 After a period of time and a subsequent ruling on a discovery motion,l the parties 15 returned to Court and indicated that there would be no further testimony or evidence required to 16 resolve the motion. At the hearing, Hector submitted to the Court a Declaration in support of

17 his Motion. The Court gave the parties leave to submit proposed findings of fact and 18 conclusions of law within three weeks, and indicated it would take the matter under advisement

19 at the conclusion of that time period. On October 30, 2017, the Court received Proposed 20 Findings of Fact and Conclusions of Law from the Government ("Gov 't FFCL"). No proposed

21 findings were submitted by either defendant. 22 DISCUSSION 23 The first issue before the Court is whether the affidavit attached to the search warrant 24 provided sufficient basis for the issuing judge to find probable cause. Defendants argue that the 25 affidavit supporting the warrant was insufficient. " A fi ndi ng of probabl e c ause c an be 26

27 l The Court granted Hector's Motion for Discovery and ordered the Government turn over a recording of a statement made by Defendant to an agent of the Government, the SOI, during the alleged controlled buy operation 28 on April 18, 2016 at his residence.

People v. DeVora and DeVora Case No.CF07.94-16 Decision and Order

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\ supported by less evidence than is required to support a conviction." United States v. Cochrane,

z 896 F.2d 635, 641 (let Cir. 1990) (citation omitted). "The purpose of a search warrant affidavit,

3 and a confidential informant's contribution thereto, is simply to establish that there is a fair

4 probability that contraband or evidence of a crime will be found in a particular place." Id.

5 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal quotation marks omitted). 6 This Court's review of "a probable cause determination by another judge on the same

7 court should ensure that the issuing judge had a substantial basis for concluding that probable 8 cause exists." People v, Gallo, 2017 Guam 24 'II 25. The Coup "may not suppress evidence 9 based upon a lack of probable cause unless the issuing court's probable cause determination was

10 clearly erroneous." Id. Thus, it is not this Court's role to make its own assessment as to

ll weedier probable cause through a De novo review, but to give great deference to the issuing 12 court, so long as there is a substantial basis for concluding that probable cause existed.

13 In this case, an affidavit was submitted by GPD Officer Brian D. Awa to the issuing

14 court in support of the Search W arrant. The affidavit provides that a control buy was

15 coordinated with a Source of Information ("SOI") to investigate a Target of Interest - Hector

16 DeVera. The officers conducting this operation met with the SOI who indicated to them that 17 Hector was selling drugs at his residence. The officers coordinated with the SOI to purchase 18 drugs from Hector on April 18, 2016, observed the SOI arrive at the residence where the 19 purchase was made, and escorted the SOI back to the office where the drugs were immediately 20 confiscated and tested presumptive positive for methampbetamines. See Monica Mot, Suppress,

21 Ex. C. The SOI was equipped with a digital recording device which recorded the encounter. Hz Id. On May 4 and 5, 2016, officers also conducted visual surveillance of Hector, observing on

23 May 4th at 6:00 a.m., that within the hour, several different vehicles would arrive at the 24 residence and would leave immediately, and then on May 5th that at 6:30 a.m. he was followed

25 to Tiyan High School, Harmon Industrial Park, and then FHP where he met with another

26 individual and they stayed within their vehicles parked next to each other. Id. 27 Although the controlled buy took place on April 18, 2016, the Search W arrant was not

28 obtained until May 5, 2016. Defendants argue that the information in the affidavit was stale in

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1 that "there was an unreasonable lapse of time between the date on which it was alleged to have

2 been acquired and the date on which the warrant was issued." (Monica Mot. Suppress at 2,

3 Hector Mot. Suppress at 3). "[W ]hether information is too stale to establish probable cause 4 depends on the nature of the criminal activity, the length of the activity, and the nature of the

5 property to be seized." United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004) (citation

6 omitted). In this case, a controlled buy took place with an SOI and then observations were later

7 made by the officers on May 4, 2016 and May 5, 2016 of cars arriving and immediately

8 departing the residence, and Hector leaving the residence to meet up with another individual in

9 a vehicle and then returning home. Officer Awa's Affidavit provides a description of these

10 specific observations supporting a conclusion that drug dealing may be occurring at defendants'

residence. See Gates, 462 U.S. at 239 ("Sufficient information must be presented to the 12 magistrate to allow that official to determine probable cause, his action cannot be a mere

13 ratification of the bare conclusions of others."). While the initial transaction may have occurred

14 more than a week prior to these observations, the Court recognizes that this matter involves

15 allegations of drug dealing, which is "a continuing pattern of criminal conduct, not a crime

16 consisting of a single transaction." Cochrane, 896 F.2d at 642 (citations omitted). See also

17 United States v. Format, 152 F.3d 768, 771 (8th Cir. 1998) ("where continuing criminal

18 activity is suspected, the passage of time is less significant."). Therefore, the Count does not

19 find that the information was state. 20 Lastly, Hector alleges that the "[a]ffidavit left out critical inform ation which [if]

21 provided to the issuing judge would have led to a different outcome." (Hector Mot. Suppress at 22 3). Hector does not specify what information was left out in particular, however, he has

23 provided statements in his Declaration submitted to the Court on October 24, 2017, indicating

24 that on the night of the alleged controlled buy, he was hosting a barbeque at his house for his

25 wife's birthday, as well as reasons why he was driving around the moving of May 5th, 2016.

26 See Decl. of Hector C. DeVera.

27

28

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l "There is . a presumption of validity with respect to the affidavit supporting the search 2 warrant." Franks v. Delaware, 438 U.S. 154, 171 (1978). A defendant is entitled to an 3 evidentiary hearing on the validity of the affidavit underlying a search warrant if:

4 he can make a substantial preliminary showing that (1) the affidavit contains intentionally or recklessly false statements or misleading omissions, and (2) the 5 affidavit cannot support a finding of probable cause without the alleged false 6 information, i.e., the challenged statements or omissions are material. If both requirements are met, the search warrant must be voided and the fruits of the 7 search excluded." United States v. Kleinman, __ F.3d -_ (9th Cir. 2017), 2017 WL 8 6997333 at l2* (citations omitted). 9 The Government argues that while Hector submitted a Declaration with statements offering 10 explanations for what may have occurred, he did not present to the Court as evidence in support ll of his position, the recording generated by the SOI of the controlled buy occurring on April 18,

12 2016, "evidence that could clearly have exonerated Hector had that recording appeared to depict 13 a birthday party rather than a drug deal." (Gov 't FFCL at 9-10). The Court is inclined to agree, 14 and finds that Hector has not made a substantial preliminary showing that the affidavit 15 contained misleading omissions, and that there is no basis to invalidate the search warrant on 16 this basis. 17 Therefore, the Court, in applying a deferential standard of review, finds that the issuing 18 court had a substantial basis for its finding of probable cause based on these facts, and DENIES 19 defendants' motions to suppress. 20 CONCLUSION

21 For the foregoing reasons, the Court hereby DENIES Monica's Motion for Suppression 22 of Evidence and Hector's Motion to Suppress Evidence. A Further Proceedings is set for 23 unnvszmq at 96047 gal 24

25 IT IS S0 ORDERED this day of February, 2018 SERVICE vIA COURT Box

26 I acknovdedgo that a copy of the original hereto was placed in Me -_ 4 27 coin box of:

HONORABLE VERNON p. PEREZ 28 M06*3 Judge, Superior Court of Guam FEB-:,§@1W Jule:

People v. DeVora and DeVora Case N0.CF0294-1- Deputy riot Court of Guam Decision and Order

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