United States v. Liu

UNITED STATES OF AMERICA, Plaintiff, v. ZHIQIANG LIU, et al., Defendant.

No. 2:13-CR-00050-KJM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 6, 2015

ORDER

The following motions are currently pending before the court: (1) a motion to suppress evidence derived from a GPS warrant issued on October 25, 2012 by the Sacramento County Superior Court, filed by defendant Qinghong Li and joined by defendant Shihong Chen, ECF Nos. 71, 86; (2) a motion to suppress observations from a vehicle stop on February 21, 2012, filed by defendant Li and joined by defendant Chen, ECF Nos. 79, 86; (3) a motion to suppress evidence obtained as the result of a GPS warrant issued on November 16, 2012 by the duty magistrate judge, filed by defendant Li and joined by defendant Chen and in part by defendant Zhiqiang Liu, ECF Nos. 80, 82, 86; (4) a motion to suppress evidence derived from the federal GPS warrant filed by defendant Liu and joined by defendant Chen, ECF Nos. 82, 86; (5) a motion to dismiss the indictment, arguing the government's marijuana policies are arbitrary within the meaning of the Fifth Amendment and violate the doctrine of equal sovereignty, filed by all defendants, ECF No. 87; (6) a motion to suppress evidence derived from "a police sniff andlistening" outside Cliffcrest Drive on December 10, 2012 and outside McKenna Drive on October 23, 2013, filed by defendant Li and joined by defendant Chen, ECF Nos. 94, 86; (7) a motion to suppress all evidence obtained from a residence on McKenna, seized as a result of federal search warrant 2:13-sw-0053, filed by defendant Li and joined by defendant Chen, ECF No. 95; and (8) a motion to suppress evidence seized from the search of Gwerder Court, filed by defendant Jun Mou Peng, ECF No. 96. At hearing, defendant Liu joined in all of defendant Li's motions.

The government has filed an omnibus opposition to the motions. Opp'n, ECF No. 97. Defendant Chen has filed a reply. ECF No. 98.

The court heard argument on July 9, 2014, Olusere Olowoyeye appeared for the government: Douglas Beevers appeared for Qinghong LI; Keith Staten appeared for Zhinqiang Liu; Mark Reichel appeared for Shihong Chen; and Chris Cosca appeared for Jun Mou Peng. All defendants were present and were assisted by the Cantonese interpreter.

After considering the parties' arguments, the court DENIES the motions to suppress and the motion to dismiss.

I. THE MOTIONS TO SUPPRESS

The three warrants in this case built on the information presented in and evidence derived from the earlier warrants, as well as evidence secured through a vehicle stop and the "sniff outside two houses. After addressing the threshold question of standing, the court describes each event separately below and then addresses the parties' challenges to that particular event.

A. Standing—The Reasonable Expectation of Privacy

A defendant who claims that government action violated his or her Fourth Amendment rights must generally demonstrate that he or she had a "legitimate expectation of privacy" in the place searched or the thing seized and that this expectation is one society recognizes as legitimate. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004). Courts generally use the term "standing" to refer to this reasonable expectation of privacy, even though the concept "is analytically distinct from 'case or controversy' standing in the Article III context." United States v. Ewing, 638 F.3d 1226, 1230(9th Cir. 2011). The Ninth Circuit has said Fourth Amendment standing "is not jurisdictional," United States v. Garcia-Villalba, 585 F.3d 1223, 1234 n.6 (9th Cir. 2009), and thus "may be bypassed in favor of the merits," Ewing, 638 F.3d at 1230, or "waived . . . by failing to raise it." United States v. Huggins, 299 F.3d 1039, 1050 n.15 (9th Cir. 2002); but see United States v. Paopao, 469 F.3d 760, 764 (9th Cir. 2006) (stating government could challenge defendant's standing in defendant's appeal from denial of suppression motion even though government had not raised the issue in the district court).

The government has not addressed defendants' standing to raise any of the challenges before the court, and at hearing, defendants said they each had adequately addressed standinng in the respective motions. As the idea of "standing" is one of substantive Fourth Amendment law, Ewing, 638 F.3d at 1230, the court discusses it, if needed, in connection with the challenges to the searches.

B. Warrantless Searches

As noted, the defense challenges three warrantless searches: the seach of Li's car and the two "sniff" searches. ECF Nos. 79, 94.

It is the government's burden to justify a vehicle stop, just as it is its burden to justify warrantless searches. United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012) (government's burden to show reasonable suspicion for vehicle stop); United States v.Carbajal, 956 F.2d 924, 930 (9th Cir. 1992) ("The burden is on the Government . . . to show the reasonableness of a warrantless search. This includes demonstrating that the search comes within one of the narrow exceptions to the warrant requirement.") (internal citations omitted).

Although the government acknowledges defendants' challenge to the "sniffs" outside Cliffcrest and McKenna in the introduction to its opposition, it does not engage the issues substantively. See ECF No. 97 at 1. Moreover, it does not even acknowledge Li's motion to suppress the observations from the vehicle stop, much less provide a copy of any police report prepared as the result of the contact or address the differing descriptions of the search of Li's car. It did address both motions during the hearing on the motion; although this is not the ideal way of meeting the defense challenges, it does preserve the government's position. United States v.Scott, 705 F.3d 410, 416 (9th Cir. 2012) (finding that government's theory was not forfeited when it was raised during the evidentiary hearing but not included in the government's opposition).

The court acknowledges that Li's account of the stop and search is different in some respect than Barnes', but denies Li's request for an evidentiary hearing to resolve the differences, ECF No. 79 at 8, for even assuming Li's rather than Barnes' account is correct, it does not justify suppression. See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (recognizing evidentiary hearing was unnecessary when district court assumed defendant's account was correct for purposes of ruling). Moreover, as there is no suggestion the facts about the sniffs are contested, no evidentiary hearing is required.

1. The Vehicle Stop of February 12, 2012

The state and federal GPS warrant affidavits and the affidavit for the warrant to search the houses contain the following narrative: On February 12, 1012, Elk Grove Police Department (EGPD) Officer Barnes stopped a black Lexus, license number 4WYU928, near the residence on Cliffcrest Drive where officers ultimately found marijuana. Affidavit for State GPS Warrant, ECF No. 78 at 20; Affidavit for Federal GPS Warrant, ECF No. 80-1 ¶ 11; Affidavit for Federal Search Warrant, ECF No. 95-1 ¶ 21. Officer Barnes identified the occupants of the Lexus as defendants Li and Chen and observed two electric ballasts, warm to the touch, and two high power cultivation light hoods inside the car. Id. He also detected a strong odor of marijuana inside the car. Id. The state GPS affidavit and federal search affidavit include additional facts: Li told Barnes that both she and Chen had medical marijuana cards and that they lived in San Francisco and were just visiting the area. ECF No. 78 at 20. The state affidavit also reports that Barnes found neither medical marijuana cards nor marijuana in the Lexus. ECF No. 78 at 20; ECF No. 95-1 ¶ 21.

Li has provided a declaration saying the officer told her he stopped her car beause of "too much tint on the windows." Decl. of Qinghong Li, ECF No. 79 at 9. In response to the officer's question about marijuana usage, Li said she had a marijuana license; the officer searched her purse and found the license. Id. ¶ 2. The officer also searched the trunk of the Lexus and found two light hoods and other equipment. Id. ¶ 3.

Li's motion does not challenge the initial stop of the car. ECF No. 79 at 5. Indeed, California courts have found a vehicle stop lawful when the officer's view through a car's side window was obscured by the tint, thus giving rise to reasonable suspicion the car's windows were illegally tinted in violation of California Vehicle Code § 26708.5(a). People v. Roberts, 184 Cal. App. 4th 1169, 1190-91 (2010).

Li acknowledges the officer did not need a warrant to search her car's trunk if he had probable cause for the search. See California v. Avecedo, 500 U.S. 565, 580 (1991); United States v. Phillips, 2:13-CR-00398-MCE, 2014 WL 1275916 at *3-4 (E.D. Cal. Mar. 27, 2014) ("[I]f police have probable cause to believe that evidence of a crime is somewhere inside a vehicle, they can search anywhere within the vehicle . . . that might contain the object of the search.") (internal citation omitted). Federal cases have held that "a 'moderate to strong odor' of marijuana coming from the vehicle" gives rise to probable cause to search the vehicle's trunk. United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003); see also United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) (agent's "smelling the marijuana then constituted probable cause to believe there was marijuana in the vehicle); but see United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998) (establishing distinction between odor of burnt marijuana, which suggests the passengers are using rather than transporting marijuana, and thus does not justify search, and odor of raw marijuana, which suggests transportation and justifies search).

However, defendant notes the search was performed by the EGPD, approximately nine months before federal law...