IN UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA

Plaintiff,

V. CASE NUMBER: 07-20124

CARRIE and GUY NEIGHBORS

Defendant.

DEFENDANT’S JOINT MOTION TO SUPPRESS EVIDENCE

COMES NOW, Carrie and Guy Neighbors, by and through counsel, John M.

Duma and Cheryl Pilate and moves this court pursuant to Rule 12(b)(3) of the

Federal Rules for Criminal Procedure for an order suppressing certain evidence

seized to be used in the trial in chief against the defendants. In support of said

motion the defendants would state as follows:

FACTUAL STATEMENT

WARRANTS EXECUTED DECEMBER 2, 2005

On November 30, 2005 an officer of the Lawrence Police Department applied

for and received a search warrant for among other things

“The residence located at 1104 Andover Street, Lawrence Douglas County, Kansas

66049 . . .”.

The affidavit that was submitted in support of the search warrant contained 43

pages of information, single-spaced, outlining why the officer requesting the

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search warrant believed the warrant should issue.

The affidavit contained only minimal references to the residence located at

1104 Andover Street, Lawrence Kansas (hereinafter referred to as Andover). The

remainder of the affidavit outlined information that supported the request for a

search warrant on the commercial establishment known as “Yellow House” located

at 1904 Massachusetts Street, Lawrence Kansas.

The affidavit contained information regarding the Andover location based on

items collected from bags of trash in front of the Andover address. The first trash

pull occurred on November 16, 2005. The officer that recovered the trash did not

observe who placed the bags of trash at that location, further there was no mention

in the affidavit as to whether there were other bags of trash in the same vicinity as

the bags recovered by the officer. After recovering the two trash bags the officer

took the same to a secure location to “thoroughly search” the same.

The search of the trash bags revealed the following information that was set

out in the affidavit on page 20 to wit:

“* eBay document denoting “Hello yellowhair-bargains” and “send

payment” to a sellers address “Polart, 5700 Sarah Ave., FL 34233

* 2 each printed PayPal shipping labels (USPS) to Imad Matar, 12021

Downey AVE., Downey CA 90242 and the return address as yellow

house store, 1904 Massachusetts St., Lawrence, KS 66044 dated

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 11/08/2005

* 1 each printed PayPal shipping labels (UPS) to Crystal Morris 800 E

Diamond Blvd. Ste 3-131, PO Box 115 Anchorage, AK 99515 and the

return address as yellow house store, 1904 Massachusetts St., Lawrence,

KS 66044 dated 11/08/2005

* Pay Pal document denoting “Create your own shipping label” showing

shipper’s address as yellow house store, 1904 Massachusetts St.,

Lawrence, KS 66044 and a print date of 01/21/2002 to Eduard Scott.

* eBay document showing a Compaq Presario Desktop PC 2.93 GHZ that

had been paid for and payment was sent to

YELLOWHOUSE@SUNFLOWER.COM on Sept. 23 2005. Seller

information shows yellowhair-bargains and the winning buyer as

jnicole42375.

These documents appear consistent with the selling and shipping of

posted eBay merchandise on the yellowhair-bargains web store

indicating transactions are being conducted at the Neighbor’ residence.”

Affidavit dated November 30, 2005 page 20.

The second trash pull occurred on November 30, 2005 wherein the

investigating officers collected a single bag of trash from the curb in front of the

Andover residence. Again the trash was transported to a secure location to be

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“thoroughly searched”. The affidavit indicates that the following items were

recovered to wit:

• “An envelope addressed to Guy and Carrie Neighbors showing an

address of 1104 Andover, Lawrence, Kansas.

• An envelope addressed to Carrie Neighbors Yellow House 1904

Massachusetts, Lawrence, Kansas. The document was from Ann

Sutherland of Lake Oswego, Oregon. The document further

demonstrates that business documents addressed to the Yellow House

business are being taken to the owner’s residence located at 1104

Andover.”

(Affidavit dated November 30, 2005 page31).

The discovery provided to counsel for the defendants in this case indicate that

another trash pull was conducted by the Lawrence Police Department on October

26, 2005. The report on that trash pull concluded: “The paper sack that was

collected had nothing of evidentiary value inside it.” This information was not

provided in the affidavit to the issuing magistrate of the search warrant. Further,

there was one trash pull listed in the affidavit, which recovered trash from the

“Yellow House” business. There were no documents or other information to

connect the Andover property with the “Yellow House” property recovered from

the trash pull at “Yellow House”.

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 The affidavit sets out the great lengths the Lawrence Police Department went

to investigate the transactions occurring at the “Yellow House” store. In the one-

month period of time leading up to the issuance of the search warrant it appears

that the investigators were conducting an almost continuous investigation of

“Yellow House”. There is no information provided in the affidavit that indicates

that there was ever observed any property being transported from the “Yellow

House” store to the Andover address. The affidavit does not even present a

conclusory opinion by the affiant that ordinarily persons involved in the purchasing

of stolen property keep records of the suspect transactions at their home residence.

The affidavit concludes by stating.

“Furthermore, to complete a more thorough investigation into the fencing of

stolen property and attempted possession of stolen property AFFIANT requests

that search warrants be issued for the before mentioned locations.”

When the officers executed the search warrant they recovered various items

that were placed in evidence that the government intends to use in the presentation

of evidence in its case in chief. Further, while executing the first search warrant

of December 2, 2005 the officers observed what appeared to be marijuana plants

and assorted property which led to the issuance of a second search warrant and

resulting charges being filed in case 07-20073. Also, the executing officers of the

December 2, 2005 search warrants confiscated many items of property that

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exceeded the scope of their authority under the issuing warrants.

WARRANTS EXECUTED JULY 7, 2006

The investigation into the “Yellow House” business continued after the

execution of the search warrants in December of 2005. On July 6, 2006, a postal

inspector applied for and received a search warrant for the Andover residence. The

affidavit contained a great deal of information discovered as the result of the

previous search warrants having been issued in December of 2005. Without the

information from the December 2005 search, the affidavit for the July 2006

warrant would not have contained enough information for the issuing magistrate to

have found probable cause to issue a search warrant for the Andover property.

Additionally, when the officers executed the July 7, 2006 warrant they allegedly

observed evidence that caused them to apply for and receive yet another search

warrant. During the execution of the second July warrant the officers discovered

what was purportedly a marijuana growing operation at the Andover property.

ARGUMENT AND AUTHORITY

a. Lack of probable cause to issue warrant

Probable cause requires a nexus between suspected criminal activity and the

place to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th

Cir. 1998). The Fourth Amendment protects individuals from unreasonable

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searches and seizures U.S. Const. amend. IV. In determining whether a search

warrant is supported by probable cause, the appellate court review is "the

sufficiency of the affidavit upon which a warrant [was] issued by looking at the

totality of the circumstances [to ensure] 'that the [issuing judge] had a substantial

basis for concluding that probable cause existed.'" United States v. Tisdale, 248

F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39

(1983)). The appellate courts afford the issuing judge's finding of probable cause

great deference unless the affidavit fails to provide that substantial basis. See

United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).

“Probable cause undoubtedly requires a nexus between suspected criminal activity

and the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th

Cir. 1990).

In the case before this court the defendants concede that the affidavit for the

first search executed on December2, 2005 would satisfy the probable cause

requirements and nexus for the search of the “Yellow House” store. However, the

defendants would argue that the probable cause requirement and nexus was not

produced in the affidavit provided to the issuing magistrate on the warrant issued

and executed the same date on the Andover property.

The only information listed in the affidavit relating to the Andover property is

the information pulled from two trash pulls conducted by investigating officers
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with the Lawrence Police Department. During the two trash pulls the officers

found several pieces of mail along with shipping receipts that contained the

address of the “Yellow House” business or otherwise connected with the “Yellow

House” business. At no time was any information provided to the issuing

magistrate that any documents or other information located at the Andover location

were in any way connected to a specific suspected transaction of stolen property.

There was insufficient information provided to the judge issuing the first search

warrant on the Andover property to provide the necessary probable cause for the

issuance of said warrant.

The defense anticipates the government will argue that even if the affidavit

supporting the warrant was insufficient, the Leon exception will still prevent the

suppression of the evidence in question.

United States v. Leon, 468 U.S. 897 (1984). “In Leon, the Supreme Court

held that evidence seized under a search warrant later determined to be invalid may

be admissible if the officers executing the warrant acted in good faith and with

objectively reasonable reliance on the search warrant. See United States v.

Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990).

There are four situations, however, in which the good faith exception is not

applicable:

(1) if the issuing magistrate was “‘misled by information in an affidavit

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that the affiant knew was false or would have known was false except for

his reckless disregard for the truth;’” (2) if “‘the issuing magistrate

wholly abandoned his judicial role;’” (3) if the affidavit was “‘so lacking

in indicia of probable cause as to render official belief in its existence

entirely unreasonable,’” or in other words, where “‘the warrant application

was supported by [nothing] more than a “bare bones” affidavit;’” and (4)

if the warrant was facially deficient. United States v. Van Shutters, II, 163

F.3d 331, 337 (6th Cir.1998) (quoting Leon, 468 U.S. at 914-15, 104 S.Ct.

at 3416-17).

The defendants would argue that the lack of any recitation of probable cause

that the Andover residence would contain fruits, instrumentalities or other evidence

of criminal activity rendered the affidavit so lacking in indicia of probable cause

that the judicial officer either wholly abandoned his judicial role or any person

acting in their official capacity could not reasonably believe the search warrant was

supported by probable cause.

For this reason alone the evidence found during the search on the first warrant

issued on the Andover property and executed December 2, 2005 should be

suppressed.

b. Overbroad execution of warrant

"The Fourth Amendment requires that a search warrant describe the things to
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be seized with sufficient particularity to prevent a general exploratory rummaging

in a person's belongings." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.

1999). We look at the description of the items to be seized practically and the

warrant's language in a common sense fashion. See Davis v. Gracey, 111 F.3d

1472, 1478 (10th Cir. 1997). A warrant is sufficiently particular "when it enables

the searcher to reasonably ascertain and identify the things authorized to be

seized." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982)

Under the law of this circuit, "even evidence which is properly seized

pursuant to a warrant must be suppressed if the officers executing the warrant

exhibit `flagrant disregard" for its terms." United States v. Medlin, 842 F.2d 1194,

at 1199 (10th Cir. 1988) (emphasis added). The basis for blanket suppression when

a search warrant is executed with flagrant disregard for its terms "is found in our

traditional repugnance to `general searches' which were conducted in the colonies

pursuant to writs of assistance." Id. To protect against invasive and arbitrary

general searches, the Fourth Amendment mandates that search warrants

"particularly describ[e] the place to be searched and the persons or things to be

seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United

States, 275 U.S. 192, 196 (1927), [t]he requirement that warrants shall particularly

describe the things to be seized makes general searches under them impossible and

prevents the seizure of one thing under a warrant describing another. As to what is
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to be taken, nothing is left to the discretion of the officer executing the warrant. Id.

Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly

exceed the scope of a search warrant in seizing property, the particularity

requirement is undermined and a valid warrant is transformed into a general

warrant thereby requiring suppression of all evidence seized under that warrant."

842 F.2d at 1199 (emphasis added). United States v. Foster, 100 F.3D 846 (10th

Cir. 11/15/1996).

In the case before the court the defendants would argue that both the evidence

seized as a result of the second warrant issued on the Andover property and

executed on December 2, 2005 and the search warrant issued on the “Yellow

House” property also executed on December 2, 2005 should be suppressed as the

result of the officers having grossly exceeded the scope of the property which was

seized.

c. Fruit of the Poisonous Tree

The ordinary remedy in a criminal case for violation of the Fourth

Amendment is suppression of any evidence obtained during the illegal police

conduct. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant

may also suppress any other evidence deemed to be "fruit of the poisonous tree,"

(i.e., evidence discovered as a direct result of the unlawful activity), by showing

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the requisite factual nexus between the illegality and the challenged evidence.

Wong Sun v. United States, 371 U.S. 471, 485 (1963); United States v.

NavaRamirez, 210 F.3d 1128, 1131 (10th Cir. 2000).

In the instant case the second search warrant executed on December 2, 2005

for the Andover property was issued based on evidence discovered during the

execution of the first search warrant on the same date. Accordingly, the evidence

gained from the second search warrant on the Andover property executed

December 2, 2005 should be suppressed.

Likewise, the first search warrant executed on July 7, 2006 on the Andover

property was issued based on information discovered during the execution of the

first and second search warrants issued on December 2, 2005.

Finally, the second search warrant issued on July 7, 2006 was issued based

only on information gained during the execution of the first search warrant of July

7, 2006. Accordingly, all evidence seized on the first and second search warrants

executed on July 7, 2006 on the Andover property should be suppressed.

Therefore, all evidence seized as the result of search warrants executed on

December 2, 2005 and July 7, 2006 should be suppressed.

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Respectfully submitted.

/s/ John M. Duma

JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
JohnDuma@hotmail.com
ATTORNEY FOR CARRIE NEIGHBORS

/s/ Cheryl A. Pilate

CHERYL A. PILATE, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
ATTORNEY FOR GUY NEIGHBORS

CERTIFICATE OF SERVICE

I hereby certify that on July 27, 2009, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system, which will send a notice of
electronic filing to Marietta Parker, Assistant U.S. Attorney, 360 U.S. Courthouse,
500 State Avenue, Kansas City, Kansas 66101 and all other counsel of record. I
further certify that I mailed the foregoing document and notice of electronic filing by
first-class mail to the following non-CM/ECF participants: Carrie Neighbors.

_/s/ John M. Duma_____

John M. Duma No.10760

/s/ Cheryl A. Pilate

Cheryl A. Pilate, KS No. 14601

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