United States v. Alvarez

190 F. Supp. 3d 885, 2016 U.S. Dist. LEXIS 72791, 2016 WL 3124531
CourtDistrict Court, N.D. California
DecidedJune 3, 2016
DocketCase No. 14-cr-00120-EMC
StatusPublished

This text of 190 F. Supp. 3d 885 (United States v. Alvarez) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alvarez, 190 F. Supp. 3d 885, 2016 U.S. Dist. LEXIS 72791, 2016 WL 3124531 (N.D. Cal. 2016).

Opinion

ORDER DENYING DEFENDANT HERNANDEZ’S MOTION TO SUPPRESS

EDWARD M. CHEN, United States District Judge

Defendant Jairo Hernandez has moved the Court to suppress evidence seized following a search of Mr. Hernandez’s residence. See Docket No. 608 (“Motion”) at 3. The Government Opposes this Motion. See Docket No. 636 (“Opposition”).

The Court heard argument on the Motion on May 11, 2016. Having considered the parties’ briefs and arguments presented at the hearing, the Court hereby DENIES Mr, Hernandez’s Motion to Suppress.

A. Factual Background

On March 11, 2014, Special Agent Alicia MacDonald applied for and received a warrant to search the premises of 37 Dakota Street, San Francisco, California. See Docket No. 608-2 (“Hernandez Exhibit B”). Along with statements relating to the Sureño gang in general, Agent MacDonald’s Affidavit contained the following statements regarding Mr. Hernandez:

• Agent MacDonald had four years of experience in Homeland Security Investigations, where she was assigned to the Gang Unit in San Francisco, Hernandez Ex. B at SW-0156;
• Based on her experience. Agent MacDonald knew Mr. Hernandez to be a member of the 19th Street Sureños, id. at SW-0158, 0160;
• Agent MacDonald knew Mr. Hernan- . dez to have the gang moniker of “Joker,” id. at 0158;
• The San Francisco Police Department had documented Mr. Hernandez “as being in the presence of’ Sureños “on numerous occasions,” id.-,
• Many of these instances were in terri- ’ tory claimed by the Sureños, id.;
• Mr. Hernandez had “numerous gang-related tattoos,” id.; and
• Mr, Hernandez had been indicted by a federal grand jury “for multiple violations of federal law,” id.

Agent MacDonald also incorporated the federal indictment into her Affidavit by reference. Id at 0156, 0158; see also id. at SW-0169-SW-0188 (“Indictment”). The Indictment stated that,

• Mr. Hernandez, along with thirteen other individuals, conspired to violate Title 18, United States Code, Section 1962 (“RICO”), see Indictment ¶ 15;
• Mr. Hernandez, along with thirteen other individuals, “conducted] and participate^].. .in the conduct of.. .a pattern of racketeering activity,” which “consisted of multiple acts and threats involving murder... multiple acts involving dealing, in controlled substances., .and multiple acts indictable under [RICO]” such as “tampering with a witness, a victim, or an informant” and “obstruction of justice,” see id.;
• Mr. Hernandez, along with thirteen others, “agree[d] together and' with each other to kill,” and “agreed together and with each other to assault with firearms, knives, and other dangerous weapons,” “actual and suspected Norteños, actual and suspected members of other gangs, individuals who defied the will of the 19th Street Sureños, and individuals suspected of cooperating with law enforcement,” • ■
• Mr. Hernandez, along with thirteen other individuals, “conspire[d].. .to commit assault with.. .firearms, [889]*889knives, and other dangerous weapons,” id. at ¶ 22;
• On August 30, 2011, Mr. Hernandez, along with Carlos Vasquez, “knowingly and intentionally did murder Victim-1,” “for the purpose of gaining entrance to, and increasing and maintaining position in, the 19th Street Sureños” gang, id. at ¶ 25;
• On August 30, 2011, Mr. Hernandez, along with Carlos Vasquez, knowingly and intentionally “did use, carry, and discharge a firearm at Victim-1” as part of the RICO conspiracy, id. at ¶ 26;
• On August 30, 2011, Mr. Hernandez, along with Carlos Vasquez, “did cause the death of a person through the use of a firearm” “during.. .the murder in aid of racketeering of Victim-1,” id. at ¶ 27;
• On August 30, 2011, Mr. Hernandez, along with Carlos Vasquez, “knowingly and intentionally did kill, with malice aforethought, Victim-1,” id. at ¶ 46; and
• In a “Notice of Special Findings,” Mr. Hernandez “intentionally killed the victim.. .intentionally inflicted serious bodily, injury that resulted in the death of the victim... intentionally participated in the act, contemplating that the life of a person would be taken,. .intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person.. .and,. .acted after substantial planning and premeditation to cause the death of a person,” id. at ¶ 54.

Based on the statements in the Affidavit and the Indictment, Agent MacDonald believed “there is probable cause to believe that .[Hernandez’s home] -presently contains evidence of the existence of and [Mr. Hernandez’s] membership in the 19th Street Sureños, which would constitute evidence, instrumentalities, and fruits of a [RICO] violation.”1 Hernandez Ex. B at SW-0162. A federal magistrate judge agreed and granted the requested search warrant. Id. at SW-0176.

B. Analysis

1. Legal Standard

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. It permits a warrant to issue only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. Probable cause exists when, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In determining whether there is probable cause, judges are instructed to take “a practical, common-sense” approach, and to consider “all the circumstances set forth in the affidavit before [the judge], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information....” Id.

Where a magistrate judge has issued a search warrant, that decision is reviewed “for clear error.” United States v. Fernandez, 388 F.3d 1199, 1252 (9th Cir.2004), as modified, 425 F.3d 1248 (9th Cir.2005), Deference is given to the magistrate’s determination, and the reviewing court asks whether “the magistrate had a substantial basis to conclude that the war[890]*890rant was supported by probable cause.” Id.; see also United States v. Vargem, 566 Fed.Appx. 580, 581 (9th Cir.2014) (“The district court did not err in holding that the magistrate judge who issued the search warrant had a ‘substantial basis to conclude that the warrant was supported by probable cause’”). Whether there is probable cause is a “commonsense practical question,” requiring “[n]either certainty nor a preponderance of the evidence.” United States v. Kelley, 482 F.3d 1047

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Bluebook (online)
190 F. Supp. 3d 885, 2016 U.S. Dist. LEXIS 72791, 2016 WL 3124531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alvarez-cand-2016.