IN THE SUPERIOR COURT OF GUAM
PEOPLE OF GUAM, CRIMINAL CASE NO. CF0087-18 GPD Report No. 18-04351 vs.
ALLEN JAMES LIZAMA SIMITARA, DECISION AND ORDER DOB: 08/0411988 (Motion to Suppress)
DEFENDANT.
1 INTRODUCTION 2 This matter came before the Honorable Anita A. Sukola on March 17, 2019, upon
3 Defendant's Motion to Suppress. Assistant Public Defender Theresa G. Rojas represented Allen
4 James Lizama Simi tara ("Defendant") who was present. Assistant Attorney General Matthew A.
5 Phelps appeared on behalf of the People of Guam (the "People"). Upon review of the pleadings, oral
6 arguments and legal authorities presented by the Parties, the Court hereby DENIES Defendant's
7 Motion to Suppress.
8 BACKGROUND 9 A. Search Warrant 1 10 The Mandafia Drug Task Force ("MDTF") received tips from two Sources of Information
11 ("SOl") alleging illicit drug deals occurring at a residential duplex in Talofofo. 2 (Def Test., May 17,
12 2019.) Defendant and his wife, Doralynn Simitara ("Mrs. Simitara"), were identified as both owners
1 All information in Part "A. Search Warrant" is within Statement of Probable Cause. (Def Ex. A at "24. ") 2 To avoid confusion, the unidentified SOls are herein known as "SOI-A" and "SOI-B," with female pronouns.
O..R/~IN'AL CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) ·t:. li Page 1 of 12 1 and dealers of the residence (the "Simitara Residence"). On or about January 12, 2018, MDTF 2 Police Officer Peter Paulino ("Paulino") met with SOI-A. She stated that the Simitara Residence had
3 unusually frequent vehicular traffic at all hours of the day, which increased on payday weekends. 4 SOI-A also gave Officer Paulino a list of the visitors' license-plate numbers. GPD Records
5 Management System revealed the visitors were individuals previously arrested for drug possession 6 or other drug-related charges. Officer Paulino transported SOI-A to the Talofofo duplex, which she
7 ·positively identified as the Simitara Residence.
8 SOI-A's suspicions were confirmed in a later event, occurring as follows: Talofofo resident 9 Mike Naputi ("Naputi") asked SOI-A for a ride to the Simitara Residence. Along the ride, Naputi
10 implied that he buys "ice" from Defendant and "couldn't wait to smoke." When pressed further,
11 Naputi flashed a wad of cash in answer. After Naputi exited the home, he showed SOI-A his 12 purchase, which she described as a white crystal-like substance inside cut straws.
13 On or about November 2017, Officer Paulino and SOI-B drove to the Talofofo duplex.
14 There, she identified the Simitara Residence as the house where she bought "ice" from several times.
15 On January 31, 2018, in the afternoon, Officer Paulino independently surveilled the Simitara
16 Residence. He observed numerous vehicles coming and going- all within an hour timespan. Visitors
17 would arrive at the residence, enter the house, then leave- the stay being no more than five minutes. 18 Based on the information above, a search warrant was issued against the Simitara Residence on
19 February 2, 2018.
20 B. Search of Defendant
21 On February 9, 2018, around 6:00 P.M., a search warrant was executed upon the Simitara
22 Residence by Guam Police Department ("GPD"), MDTF, Special Weapons and Tactics ("SWAT")
23 and GPD K-9 Unit. (Pl. FFCL at 2; Pl. Sureply at 2.) MDTF was to secure the outside perimeter
24 while SWAT entered and secured the home. (Pl. FFCL at 2.) SWAT officers were equipped with
25 tactical gear, including bulletproof vests branded with "SWAT," helmets which obscured faces, and
26 weapons such as long-arm rifles or pistols. (Def FFCL at 1[ 3, 7.) Without knocking and
27 announcing, SWAT forcibly entered the Simitara Residence, breaking in all four doors of the
28 duplex. !d. at 1[ 6. Defendant recognized the intruders as SWAT. (Def Test., June 17, 2019.) With
CF0087-18 People v. Allen Sjmitara DECISION AND ORDER (Motion to Suppress) Page 2 of 12" 1 weapons drawn, SWAT yelled "Get the [expletive] down;'' commanding all occupants to the ground 2 to secure the area. (Def FFCL at 7! 10, 11; Pl. FFCL at 2.) The house occupants included 3 Defendant, Mrs. Simitara, Defendant's brother-in-law and Defendant's four children- aged sixteen, 4 fourteen, five and four. (Def FFCL at 7! 10.) The four-year-old is afflicted with Spina Bifida; 5 however, it is not visually apparent. /d. As SWAT attempted to restrain Defendant, he was allegedly 6 yelling and struggling. (Pl. FFCL at 2.) However, Defendant contends he was attempting to alert 7 SWAT of his daughter's spinal condition but was instead rebuffed. (Def FFCL at 7! 25.) Defendant 8 was then escorted outside, purportedly still resisting. !d. Allegedly, Defendant ceased fighting when 9 SWAT pushed him into the house's shutters, then onto the ground. (Def FFCL at 7! 12.) 10 Once SWAT secured the house, GPD and MDTF officers went inside to begin their search. 11 (Pl. FFCL at 2.) Defendant and Mrs. Simitara's bedroom closet revealed one digital scale, two
12 stainless steel scissors, eleven zip-top baggies, one heat-sealed straw and money- all within a box 13 labeled "PIPER." (Pl. FFCL at 2; Def Ex. Bat "11 ".)A purse in the kitchen yielded a glass pipe 14 with white residue, 0.38 gross grams of methamphetamine and $55.00 USD concealed in a tin box. 15 /d. Field tests of the methamphetamine returned presumptive positive. !d.
16 Outside the house, Officer Keane Pangelinan ("Pangelinan") arrested Defendant, who
17 purportedly agreed to speak with the officer. (Pl. FFCL at 2.) Defendant admitted to selling and 18 distributing methamphetamine for approximately six months and claimed to own the discovered 19 contraband. !d. at 3. In a written statement, Defendant identified several family members as his 20 suppliers. !d. at 3-4. However, Defendant's statements were later recanted. !d. He alleged his 21 admissions were the result of officer coercion, to wit, threatening to hold his family hostage, have 22 his wife arrested and have his children removed from his custody. (Def FFCL at 7! 52.) 23 As to the warrant, Officer Paulino testified he gave Mrs. Simitara a copy of the warrant that 24 night and informed her of the warrant's nature and purpose. (Pl. FFCL at 2; Paulino Test., May 30.) 25 He maintains he served her inside the house, approximately ten minutes into the search, though she 26 appeared to be in shock. (Paulino Test., Mar. 30.) On the other hand, Mrs. Simitara asserts she was 27 never given a search warrant despite her constant demands. (Def FFCL at 7! 40.) She testified that 28 even after requests in open court, the warrant was only provided upon discovery several months
CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) Page 3 of 12 1 later. !d. at 148.
2 C. Procedural History
3 On January 2, 2019, Defendant filed a Motion to Suppress concerning evidence and
4 admissions obtained during his arrest on February 9, 2018. The People filed their Opposition on
5 January 9, 2019. Defendant's Response was filed on March 14, 2019. A Motion Hearing was held on
6 March 15, 2019, during which a preliminary issue of burden-shifting arose. The Court ordered
7 additional briefing on the issue and allowed the Parties to file surreplies. 3 The Court took the burden-
S shifting matter under advisement on March 15, 2019. A Decision and Order was issued on March
9 26, 2019, resolving the intervening issue. Evidentiary Hearings were held on March 17, and March
10 30, 2019. Final arguments were heard on June 17, 2019. The People and Defendant filed their
11 Proposed Findings of Fact and Conclusions of Law on June 21, 2019, and July 9, 2019, respectively.
12 The Court took the suppression matter under advisement on July 10, 2019.
13 DISCUSSION
14 The issue before the Court is whether the execution of the search warrant was so
15 unreasonable that suppression of the evidence is justified. Defendant argues that the fruits of the
16 search should be suppressed because the Officers acted unreasonably when they: (i) failed to knock
17 and announce, (ii) used excessive force and (iii) served the warrant belatedly. The People oppose all
18 points and ultimately argue that suppression is improper. The Court denies suppression of the
19 evidence for the reasons set forth below.
20 I. No Fourth Amendment Violation Occurred When Exigent Circumstances Existed.
21 A cornerstone of the United States Constitution is the "right of the people to be secure in
22 their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Canst.
23 Amend. IV. This right extends to Guam via the Organic Act of Guam. See 48 U.S.C.A. § 142l(b)
24 (West 2017). The Fourth Amendment relies on reasonableness. U.S. Canst. Amend. IV. Accordingly,
25 searches pursuant to a valid warrant are presumptively reasonable. To rebut this presumption, a
26 defendant must prove an unreasonable Fourth Amendment violation occurred. People v. Santos,
3 Each party filed two surreplies: the People filed two surreplies on March 18 and March 20, 2019; Defendant filed his on March 19 and March 20, 2019.
CF0087-18 People v. Allen Stmitara DECISION AND ORDER (Motion to Suppress) Page 4 of12 1 1999 Guam 1151. However, the Fourth Amendment is silent as to how a warrant must be executed. 2 . U.S. v. Banks, 540 U.S. 31, 35 (2003).
3 A. Knock and Announce Rule Was Not Violated. 4 The knock and announce requirement ensures protection against unreasonable searches and 5 seizures. Wilson v. Arkansas, 514 U.S. 927, 931 (1995). This requirement is reflected in common- 6 law principles and forms part of the Fourth Amendment's reasonableness inquiry. !d. at 934. This 7 reasonableness standard maintains a measure of flexibility, allowing the balance of law enforcement 8 interests against the preservation of rights. !d. Accordingly, knock and announce violations are 9 reviewed on a case-by-case basis. Richards v. Wisconsin, 520 U.S. 385, 394 (1997). 10 In the interest of law enforcement, officers maintain discretion in knocking and announcing 11 their presence. Richards at 394. To dispense of the knock and announce requirement, officers must 12 have reasonable suspicion that knocking and announcing would be dangerous, futile or inhibit the 13 effective investigation of crime, e.g. the destruction of evidence. !d. This showing is not high; it only 14 requires that the particular circumstances known to the officer are reasonable in totality of the 15 circumstances. !d. at 394-95; Banks at 36-37. 16 The issue here is whether the search-team officers (the "Officers") had reasonable suspicion 17 to forego knocking and announcing prior to entering Defendant's home. Defendant argues the 18 Officers should have knocked and announced their presence as it is reasonable warrant procedure. 19 However, the Court finds that exigent circumstances allowed the Officers to forego the rule. 20 It was reasonable for the Officers to believe that knocking and announcing their presence
21 would pose serious safety risks to those involved. The facts support an inference that the Officers 22 believed the Simitara Residence was potentially dangerous. Consequently, the search required 23 particular precautions, such as raid gear, rifles and the element of surprise. This inference is 24 supported by the Officers' available knowledge at the scene and their following actions. 25 It was reasonable for the Officers to believe the Simitara Residence was dangerous as three
26 independent sources verified the information. Two SOls reported alleged drug activity occurring at 27 the Simitara Residence, which was verified by Officer Paulino's independent investigation. 28 Moreover, the reports were all based on first-hand knowledge: SOI-A had contact with a buyer; SOl-
CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) Page 5 of12 1 B was a buyer; and Officer Paulino conducted an on-site investigation.
2 An SOl's credibility is determined under the reliability factors in United States v. Rowland. 4
3 United States v. Duenas, CR 17-00004 (D.Guam June 12, 2017) (citing United States v. Rowland, 4 F.3d 899, 907-08 (9th Cir. 2006)). Both SOls are known informants as Officer Paulino personally 5 met with them. Their bases of knowledge are through personal experiences. Lastly, the SOls
6 provided predictive information that was substantiated through Officer Paulino's investigations. 5
7 The plate numbers given by SOI-A were proven to belong to previous drug-related offenders.
8 Officer Paulino's independent investigation yielded the same observations as SOI-A's. SOI-B, as a
9 previous buyer, also verified SOI-A's reports. Not only were the SOls' credibility important for
10 obtaining the warrant, it also formed the Officers' beliefs that knocking and announcing would
11 create dangerous conditions. See generally U.S. v. Ramirez, 523 U.S. 65 (1998) (using a reliable
12 informant as a factor in determining the reasonableness of a warrant's execution).
13 The Officers' strategy and responding actions indicated forethought and preparation for
14 deadly circumstances, which proves an exigent exception. Defendant suggests that the presence of
15 more than ten Officers, including SWAT, proves excessive force. However, the number of officers
16 also suggests preparation for unpredictable conditions, such as whom or how many individuals
17 would be present. 6 More officers evince more controi over a situation. Additionally, SWAT used
18 tactical gear, like bulletproof vests, helmets and weapons like long-arm rifles and pistols, to execute
19 the warrant. The time of procurement is important here. Because SWAT obtained the tactical gear
20 and rifles beforehand, it suggests the Officers anticipated a highly dangerous situation. This is
21 further supported by the Officers' conduct before and during the safety sweep of the house. The
22 Officers' prior strategizing closed any gaps left by incomplete or unknown information.
23 The Officers' strategy illustrates that incomplete data on Defendant was remedied by over-
24 preparedness, e.g. the number of officers present, the gear used and the strategy in entering the
25 house. It was reasonable to believe multiple people could be inside the house due to its size .as a
4 Reliability is assessed under five factors. Two factors not discussed are: a record of reliability and motive. Duenas at 4. 5 Predictive information is the intimate details of a matter unknown to the public. 6 Shortly before the warrant execution, some officers allegedly saw a person resembling "Brandon Elms" with Defendant or at Defendant's residence. This is an example of a situation the Officers may have anticipated when strategizing.
CF0087-18 People v. Allen Stmitara DECISION AND ORDER (Motion to Suppress) Page 6 of 12 1 duplex and the numerous people frequenting the house at all hours of the day. See U.S. v. Ankeny, 2 502 F.3d 829, 836 (2007) (noting that multiple individuals inside a house was a legitimate safety 3 concern). It is evident the Officers were unsure of who was inside the house. The searched happened 4 at 6:00 P.M.- a time people are normally awake. Officer Paulino's investigation revealed the 5 frequent visitors were previous arrestees. 7 The Officers also did not know Defendant's house layout. 6 The neighbor states that all four doors of the duplex were broken in: two on Defendant's side and 7 two on the empty side. The Officers likely would not have broken down the door if they knew no 8 one was inside. Considering the facts above, it was reasonable for the Officers to assume the house 9 may contain dangerous individuals. 10 Surprise was also an integral strategic element as the Officers were acting on incomplete 11 knowledge·. Ankeny at 836 (using the element of surprise and a house's design in a reasonableness 12 inquiry). 8 Defendant easily recognized SWAT, stating he believed they were SWAT upon their 13 entrance. Their gear was also branded with "SWAT." Because they were easily identifiable, surprise 14 allowed the Officers to maintain a measure of safety. Cf Banks at 39 (holding that knocking and
15 announcing was futile as the defendant quickly recognized the officers). Even if Defendant argues 16 that none their information was true, reasonableness is viewed through the eyes of an officer. ld. at 17 39; Ramirez at 71-72. Relevance only matters concerning the facts known to an officer at the time of 18 exigency, not the truth. 9 Banks at 40. Here, the Officers had exigent circumstances to. forego 19 knocking and announcing; thus, suppression cannot be granted on this ground.
20 B. Officers Did Not Use Excessive Force. 21 The touchstone of reasonableness governs the execution of a warrant. Banks at 35-36. 22 Therefore, an otherwise lawful entry may be invalidated due to unreasonableness. Ankeny at 836; cf
23 Ramirez at 70-71. To determine the use of excessive force, "the question is whether the officers' 24 actions are objectively reasonable in light of the facts and circumstances confronting them, without 7 Nevertheless, drug offenses are not indicative of a dangerous individual. See Richards at 396 (rejecting a blanket exception for searches involving drugs due to its alleged dangerous nature). 8 In Ankeny, one safety concern was the difficulty in securing the house due to its design. This, along with other factors, led officers to believe that distraction through surprise was necessary to ensure a safer entry. Ankeny at 836. 9 This standard is based on the fact that officers are often forced to make split second decisions in high tension situations. Graham at 396-97. Decisions are also made during circumstances that are often changing and have an impact on the officer's safety. !d.
CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) Page 7 of 12 1 regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989) 2 (internal quotations omitted). Reasonableness is determined though an officer's perspective while on 3 the scene, taken in totality of the circumstances. !d. at 396. 4 The Officers did not use excessive force against the Simitara family. As previously 5 mentioned, the Officers had a valid concern for their safety. Framed in this manner, the Officers' 6 manner and conduct were in response to perceived danger. Even if the Simitara family posed no real 7 danger, reasonableness is based on an officer's knowledge at the scene; it is not based on facts. 8 Graham at 396-97 (stating "[t]he calculus of reasonableness must embody allowance for the fact 9 that police officers are often forced to make split-second judgments - in circumstances that are 10 tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular 11 situation). 12 It was reasonable for SWAT to only focus on securing the occupants- instead of Defendant's
13 words- as safety was their primary task. The force used was relative to Defendant's resistance. To an 14 officer, Defendant's active resistance could be perceived as dangerous. Graham at 396 (stating 15 actively resisting arrest or attempting to evade arrest are factors in determining excessive force). 16 Defendant maintains he only attempted to alert the Officers of his daughter's condition. However,
17 this does not consider the hectic environment of the search. The incident was loud enough to be 18 heard from across the street. There was a constant influx of people as the Simitaras, GPD, MDTF, 19 SWAT and the K-9 Unit were all on the scene. Mrs. Simitara also stated, "Everything happened so 20 fast. I was shocked." (Mrs. Simitara Test., May 30.) With the flurry of events, it is reasonable that 21 voices could easily be drowned out. 22 Defendant pointedly argues it was excessive that his youngest daughter was forced onto the 23 ground despite her spinal condition. However, a look at Defendant's daughter would not inform 24 · SWAT of her spinal condition; Defendant states her condition is not visually apparent. SWAT's
25 force was not excessive; it was responsive to the observed level of threat. Graham at 396 (stating 26 whether a suspect poses an immediate threat to safety of the officers or others is a factor in 27 analyzing excessive force). Therefore, commanding the daughter to the ground was not excessive 28 force. Lastly, the strip search of Mrs. Simitara was not excessive force. Mrs. Simitara was also a
CF0087-18 People v. Allen Si,mitara DECISION AND ORDER (Motion to Suppress) Page 8 of 12 1 subject of the search warrant. However, unlike Defendant, Mrs. Sirnitara did not necessitate an 2 arrest. Yet, to reach this conclusion, she would have to be investigated, i.e. searched. Given the 3 available knowledge at the time, SWAT's conduct was not excessive force. The warrant was not 4 rendered unreasonable; thus, suppression cannot be granted on this ground. 5 II. Suppression Inapplicable In Cases of Insufficient Cause. 6 Whether a Fourth Amendment violation occurred is a separate issue from the applicability of 7 the exclusionary rule. Hudson v. Michigan, 547 U.S. 586, 591-92 (2006). Evidence becomes "fruit of 8 the poisonous tree" when obtained through unlawful searches or seizures. U.S. v. Crawford, 372 9 F.3d 1048, 1054 (9th Cir. 2004). The exclusionary rule remedies that violation by suppressing those 10 fruits. 10 Hudson at 593. However, not every but-for violation mandates the exclusionary sanction. 11 ld. at 586. The rule is judiciously applied as social costs suffer greatly at the hands of suppression.
12 ld. at 591. 13 The exclusionary rule applies when a causal link exists between the evidence seized and the 14 alleged right violated.ll Crawford at 1054. Causation is proven by the preponderance of the evidence 15 on a case-by-case basis. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986) (citations 16 omitted); Crawford at 1054 (stating the " ... application of the exclusionary rule depends largely on 17 the facts of each case, ") (citations omitted).
18 A. No Causation Between the Evidence and Violation.
19 There is no causal link between the evidence Defendant seeks to suppression and the right 20 allegedly violated. The drugs and the drug paraphernalia were found inside a purse and inside the 21 bedroom closet. Furthermore, Defendant's admissions were obtained subsequent to his valid arrest. 22 No facts suggest the Officers would not have discovered the evidence had they initially knocked and
23 announced. The evidence was not expertly hidden in a location that the Officers would not have 24 eventually searched. Regardless of excessive force, suppression is still not appropriate as nothing
10 Knock and announce violations do not warrant evidence suppression. Hudson at 599. The exclusionary rule only vindicates the right that was violated, hence, only the evidence from that particular violation is suppressible. !d. at 591. The interests protected by the knock and announce principle are distinct from the exclusionary rules' interests. !d. at 593- 94 .. Thus, the Supreme Court has held that massive, remedial suppression is unjustified. !d. at 599. II "[F]or general objections to the manner of executing a search, suppression requires a causal link between those complained-of-behaviors and the seizure of the evidence[.]" U.S. v. Ankeny, 502 F. 3d 829, 835.(9th Cir. 2007).
CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) Page 9 of 12 1 changes the fact that the Officers still would have found the evidence. Ankeny at 834-35. 2 In essence, knocking and announcing had no effect on the evidence the Officers obtained.
3 People v. Villacrusis, No. CRIM. 91-00089A, 1992 WL 97217, at 3 (D.Guam App. Div., Apr. 16, 4 1992), aff'd sub nom. People v. Villacrusis, 992 F.2d 886 (9th Cir. 1993) (stating that a search's 5 validity is irrelevant when the contraband would be inevitably discovered. See Hudson at 596 6 (stating "ignoring knock-and-announce can realistically be expected to achieve absolutely nothing 7 except the prevention of destruction of evidence and the avoidance of life-threatening resistance by 8 occupants of the premises- dangers which . . . suspend the knock-and-announce requirement 9 anyway. ") The exclusionary rule is limited to specific evidence gained through the particular 10 unreasonable search or seizure.· Hudson at 590. This circumstance is not present here. No causal link
11 exists that justifies using the exclusionary rule; therefore, suppression cannot be granted on this
12 groundY
13 III. Suppression Inapplicable for Noncompliance of Warrant Statute. 14 Defendant argues that the Officers violated his fundamental right by belatedly serving the
15 warrant- a right that is protected under 8 Guam Code Ann. § 35.35 (2018)Y Automatic suppression
16 is not mandatory for all warrant defects under Rule 41. U.S. v. Vasser, 648 F.2d 507, 510 (1980).
17 Instead, suppression is only required for fundamental violations of Rule 41. !d. Non-fundamental
18 violations do not require suppression unless there is prejudice. !d. A defendant is prejudiced if "the
19 search might not have occurred or would not have been so abrasive if the Rule had been followed, or
20 ... there is evidence of intentional and deliberate disregard of a provision in the Rule." !d. (internal
21 quotations and citations omitted). · 22 The Parties dispute the date the warrant was provided. Officer Paulino states he personally
23 served Mrs. Sirnitara the night of the search. (Paulino Test., May 30.) Defendant states they received 24 the warrant four months after his arrest. (Rojas Test., July 17.) Even if Defendant was first served
12 "Whether that preliminary misstep had occurred or no.t, the police wou.ld have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house. But even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have never held that evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police." Hudson at 592 (internal quotations omitted). 13 Guam Code Annotated "GCA" states Section 35.35 and Fed. R. Crim. P. 41(d) [now 41(f)] (2019) are similar.
CF0087-18 People v. Allen Si,!llitara DECISION AND ORDER (Motion to Suppress) Page 10 of12 1 four months later, he fails to establish a fundamental right or prejudice. Contrary to Defendant's
2 arguments, the Fourth Amendment does not require service at the outset in order to trigger a search.
3 State v. Wraspir, 20 Wash. App. 626, 628 (1978). Immediate service of a warrant is not a 4 constitutional right. !d. See generally State v. Aase, 121 Wash. App. 558 (2004) (holding that serving
5 a warrant several minutes into a search was not an unreasonable); 6 Defendant fails to prove how a four month delay amounts to a fundamental violation. State v.
7 Kern, 81 Wash. App. 308, 317-18 (1996); United States v. Johns, 948 F.2d 599, 603-04 (9th Cir. 8 1991), cert denied, 505 U.S. 1226, 112 S.Ct. 3046, (1992). Procedural non-compliance will not 9 invalidate an otherwise valid search warrant or compel evidence suppression. State v. Linder, 190
10 Wash. App. 638 1! 1 (2015) (citations omitted). See People v. Head, 30 Cal. App. 4th 954, 960 (1994) 11 (holding a one year delay did not require suppression when delay was negligent rather than willful 12 or prejudicial).
13 Suppression is reserved for violations arising from the Fourth Amendment. Crawford at
14 1054. It is applied when no remedy is available. Cf Linder at f 2, 27-31 (stating when no other cure 15 exists, then suppression is considered). Here, the violation was cured when the Government 16 provided the warrant. Evidently, Defendant did have a remedy. See Linder at f 28; cf Taisipic v.
17 Marion, 1996 Guam 9 1! 37-39 (holding that non-compliance due to a parole hearing delay does not 18 justify relief when the defendant was eventually heard); cf Jones v. U.S. Bureau of Prisons, 903 19 F.2d 1178, 1179 (8th Cir. 1990) (holding that a parole hearing delay of six years against federal law 20 did not entitle relief because the defendant eventually received a hearing), quoted in Taisipic at f 21 39.
22 The matter here is distinguishable from Linder. The court in Linder held evidence was
23 suppressible when the officer violated a statutory warrant requirement. An officer, acting alone,
24 seized illicit drugs from the defendant's home. The defendant sought suppression pursuant to a local
25 statute requiring an officer to inventory evidence in the presence of another. The court found
26 suppression to be proper when the evidence was a fruit of the violation and the violation could not be
CF0087-18 People v. Allen Simitara DECISION AND ORDER (Motion to Suppress) Page 11 of12 1 cured by other means. 14 Here, Defendant argues that suppression is justified since the warrant was 2 served untimely. Yet, unlike Linder, the evidence here does not arise from the violation, i.e. delayed
3 service. The Officers still would have discovered the evidence regardless of the time of service. See 4 generally Ankeny, 502 F.3d 829. Absent a showing of unreasonable delay and prejudice, Defendant
5 is not entitled to suppression. Wraspir at 630.
6 Defendant fails to establish that the search was unreasonable and so the warrant remains 7 valid as to its issue and execution. Because Defendant fails to prove a Fourth Amendment violation
8 on all grounds, suppression of the evidence is denied.
9 CONCLUSION 10 Based on the preponderance of the evidence and the foregoing conclusions, the Court hereby
11 DENIES Defendant's Motion to Suppress.
A Criminal Trial Setting is set for N{)~ {2, ~ ( 9 at I
SO ORDERED _____.l'-'-",i'----,ft,_t-_1____,/L--+-'-f _ _.
I AI kl/!~ The Honorable Anita A. Sukola Judge, Superior Court of Guam
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14 Suppression could not cure the violation as the defendant's trial had already concluded.
CF0087-18 People v. Allen Sil]litara DECISION AND ORDER (Motion to Suppress) Page 12 of 12