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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, ))

Plaintiff, ))

vs. ) Case No. 07-20124-01/0

)CARRIE MARIE NEIGHBORS )

and )

GUY MADISON NEIGHBORS, ))

Defendants. ))

RESPONSE TO DEFENDANT'S MOTION

TO SUPPRESS EVIDENCE

The United States of America, by and through undersigned counsel,

opposition to the defendants Joint Motion to Suppress Evidence filed July

their motion, the defendants seek an order of the Court suppressing evid

pursuant to search warrants issued on November 30, 2005, and executed o

2, 2005, and evidence seized pursuant to search warrants issued on July 5

2006, for a residence located at 1104 Andover Street, and a business loc

Massachusetts Street, both in Lawrence, Douglas County, Kansas. Spe

defendants raise three claims: first that there was insufficient probable cause

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2006, were based upon on evidence that was the fruit of the poisonous tree be

based on evidence illegally seized from the first warrants executed on Decem

(Doc. 190 at pp 9-11). The defendants request that all evidence seized durin

searches be suppressed. As the following discussion will establish, none of 1

are meritorious and the motion to suppress should be denied in its entirety.

I. First Search Warrant for 1104 Andover

In the search warrant affidavit, Officer Mickey Rantz of the Lawren

Police Department, provided certain information that established probable cau

the residence at 1104 Andover Street, Lawrence, Kansas, for evidence relatin

crime of receiving stolen property in violation of KSA 21-3701 (A)(4) and to

offenses of conspiracy in violation of 18 U.S.C. 371 and wire fraud in vio

U.S.C. 1343. The defendants do not challenge the sufficiency of the evidenc

conduct by the defendant, Carrie Neighbors, that formed the basis for the sea

defendants residence on Andover Street and of their business establishmen

House store at 1904 Massachusetts Street, Lawrence, Kansas. (In the cas

court the defendants concede that the affidavit for the first search executed o

2, 2005, would satisfy the probable cause requirements and nexus for the s

Yellow House store.) (Doc. 190 at p. 7) The same information was provided

judge with respect to the search of the residence on Andover Street. Instead

to suppress is premised on their claim that the information obtained from tw



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believe that evidence of the crimes described in the affidavit would be found at

residence.

A. Probable Cause Existed to Issue the Search Warrant.

In this case, probable cause clearly existed to justify the issuance o

warrant for the first search warrant issued on December 2, 2005, for the resid

Andover. A copy of that affidavit and the warrant for the search of the re

attached hereto as Exhibit 1.

Courts in this District have stated on several occasions that a dete

probable cause by a neutral judge or magistrate is to be accorded great defe

United States v. Reno, 196 F.Supp.2d 1150, 1157 (D.Kan. 2002) (citing Uni

Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997)); see also, United States v. Do

WL 121951, *3 (D.Kan., decided Jan. 12, 2001). They have also stated tha

In deciding a suppression motion based upon the asserted fail

the affidavits to provide probable cause for the warrant, the reviewingmust remember that the magistrate is permitted to draw reasoinferences from the affidavits. . . See United States v. Edmonson, 9621535, 1540 (10th Cir. 1992); United States v. Peveto, 881 F.2d 844(10th Cir. 1989), cert. denied, 493 U.S. 943 (1989). When reviewmagistrate's issuance of a search warrant the court must determine whthe magistrate had a substantial basis for concluding that probable cexisted. Illinois v. Gates, 462 U .S. 213, 236 (1983).

United States v. Pierce, 2000 WL 821386, *1 (D.Kan. 2000).

According to Gates, supra, the test to be employed by a reviewing

totality of the circumstances, because [p]robable cause is a fluid concept tu


C C O


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Appeals has stated that [t]he affidavit should be considered in a com

nontechnical manner. Edmonson, 962 F.3d at 1540 (quoting United State

687 F.2d 1348, 1355 (10th Cir. 1982)).

After a practical, common-sense review of the facts asserted in the A

a warrant to search the residence on Andover Street, Judge Steven Six of the

of Douglas County found probable cause for the issuance of the wa

determination of probable cause must be given great deference, and should b

only if lacking a "substantial basis."Illinois v. Gates, 462 U.S. at 236. The Su

instructs that close calls regarding probable cause determinations should be

favor of the issuing magistrate judge. Massachusetts v. Upton, 466 U.

(1984)(per curiam). Furthermore, when reviewing the denial of a motion to su

circuit] court considers the totality of the circumstances and views the evidenc

most favorable to the government. United States v. Colonna, 360 F.3d 116

Cir. 2004) (quoting United States v. Higgins, 282 F.3d 1261, 1269 (10 Cir. th

According to the United States Constitution, a valid search must be

warrant which was issued on the basis of probable cause. U.S. Const. Ame

proponent of the motion to suppress bears the burden of demonstrating th

probable cause to issue the warrant was not shown. SeeUnited States v. Ma

1269, 1274 (10th Cir. 1994) (citing United States v. Carr, 939 F.2d 1442, 144

1991), cert. denied, 513 U.S. 1007 (1994); United States v. Moore, 22 F.3d 24


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Probable cause requires a nexus between suspected criminal activity a

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

Probable cause to issue a search warrant exists when the supporting affida

sufficient facts that would lead a prudent person to believe that a search of th

premises would uncover contraband or evidence of a crime. Id. (citing Uni

Burns, 624 F.2d 95, 99 (10th Cir. 1980). To establish the required nexus,

supporting the search warrant need not contain direct evidence or personal kn

the items sought are located at the place to be searched. Rather, the issuin

judge may draw reasonable inferences from the material provided in

application. United States v. Rosand, 145 F.3d at 1205.

The Government respectfully submits that the information contained in

when considered in combination with the reasonable inferences Judge Six wa

draw from that information, provided the judge with probable cause to believ

sought might be found at the residence. In addition, the trash pull on Novemb

produced numerous documents, many of which bore the business address o

House Store at 1904 Massachusetts St., Lawrence, Kansas, relating to t

shipping of items. (Exhibit 1 at p. 20.) The evidence from that trash pu

sufficient to establish probable cause to believe that books, record shee

check/check ledgers, eBay documents and other documentation recording the

and possession of items be sold or purchased by or through the business loc


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A subsequent trash pull on November 30, 2005, confirmed that

additional document pertaining to the sale and/or shipment of items by the Y

Store on Massachusetts had been transferred to the Andover residence. (E

31). That fact, considered together with the evidence recovered from the N

trash pull, gave rise to the reasonable inference that the Yellow House owner

documents relating to the Yellow House business to the residence on Andove

be found at that location. SeeUnited States v. Berrocal, 232 F.3d 902, 2000 W

*2 (10th Cir. 2000) (Probable cause established even though court rel

information from a citizen informant and evidence obtained from a single tra

Viewing the evidence contained in the affidavit for the first search wa

residence at 1104 Andover Street in the light most favorable to the governme

that, under the totality of the circumstances, there was a substantial basis for

conclusion that probable cause existed and that conclusion is to be acc

deference. According Judge Sixs determination the deference it deserves, un

presented here, defendants challenges to the probable cause contained

affidavit for 1104 Andover Street should be overruled and denied.

B. Good Faith

Even if the affidavit fails to establish probable cause, the court shou

good faith exception to the exclusionary rule as set forth in United States v. Le

897, reh'g denied, 468 U.S. 1250 (1984). In Leon, the Court reasoned that wh



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day at the Yellow House business property grossly exceeded the scope of

which was seized. This claim is without merit.2

The proponent of a motion to suppress bears the burden of proof. U

v. Moore, 22 F.3d 241, 243 (10th Cir. 1994). The defendants fail to artic

Motion to Suppress which evidence they contend was improperly seized by a

application of the terms of these warrants. Consequently, they have not su

burden of proof on this issue. Furthermore, the government respectfully su

review of the information in the affidavit and the return establishes that they ca

that burden.

A. Piggy back warrant of December 2, 2005 for Andover pr

Defendants next argue that the executions of the second search war

residence and the business executed December 2, 2005, were over-broad

suppression of all evidence seized at that time. (Doc. 190 at pp. 9-11). Thes

without merit.

1. Warrant was sufficiently particularized

While inside the residence executing the first search warrant for t

property on December 2, 2005, the agents discovered a hidden room

defendants bedroom that contained a marijuana grow operation. It was

apparent to the experienced searching officers that the plants were marijuana,

probable cause to seize them as contraband. Because the marijuana




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unrelated to the crimes listed in the affidavit in support of the first warrant for th

in an abundance of caution the officers applied for and obtained the second

warrant which authorized them to seize various items of evidence relating to th

grow operation. (Exhibit 2, Affidavit and Piggy Back Search Warrant for 11

attached)

The items that the piggy back search warrant for 1104 Andover Stree

the agents to seize included:

1. Marijuana, marijuana plants, and marijuana seeds.

2. Plastic baggies, scales, and other drug paraphernalia used cultivation, processing, use and possession of the above ment

drug(s).

3. Any books, record sheets, ledgers and other documentation recthe sale, delivery and possession of the above mentioned drug

4. Physical property to include but not limited to, items that appeaitems that are in their original packaging, and items with their orsale tag(s) attached.

5. New and discarded packaging material used to ship and reitems.

(Exhibit 2, at p. 6.) Because the agents had unexpectedly observed new, labe

items of merchandise and packaging materials at the residence that matched

to have been stolen, they included a request to search for and seize new phys

as described in the warrant. Thereafter, with few exceptions, only items co

first warrant and this piggy back warrant were seized at the residence on D


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Custody Sheet for search of Andover residence on December 2, 2005, Item

48, 49, 50, 51 and 52) , 11 firearms and ammunition (Item Nos. 56, 57, 58, 593

63, 64, 65, 66), and a prescription pill bottle with drugs dispensed in the name

Reyes. (Item No. 67). These items were seized because the officers had pro

to believe that they were contraband or were evidence of a crime.

When determining the admissibility of evidence seized in plain view,

have required the government to satisfy a three-prong test: (1) the officer wa

a position from which to view the object seized in plain view; (2) the object's

character was immediately apparent -- i.e. the officer had probable cause to

object was contraband or evidence of a crime; and (3) the officer had a la

access to the object itself." United States v. Soussi, 29 F.3d 565, 570 (10t

quoting Horton v. California, 496 U.S. 128, 136-37 (1990);see also United Sta

966 F.2d 398, 400 (8th Cir.), cert. denied___ U.S. ___, 113 S. Ct. 502 (

defendants do not claim that the officers were not lawfully in a position to view

or that they did not have a lawful right of access to the object itself.

The "immediately apparent" standard does not require that a "police o

that certain items are contraband or evidence of a crime." Texas v. Brown, 4

741 (1983). Rather, it requires "probable cause to associate the property

activity." Id., 460 U.S. at 741-42 (emphasis deleted) (citations omitted). Pro

demands not that an officer be "sure" or "certain" but only that the facts a

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reasonably cautious man would warrant a belief "that certain items may be co

stolen property or useful as evidence of a crime." Id., at 742.

Furthermore, [I]tems named in an impermissibly broad portion of a w

nevertheless be seized pursuant to the plain view doctrine so long as the g

plain view seizure scrupulously adheres to the three-prong Horton test. Uni

Soussi, 29 F.3d at 572.

During the investigation, the officers had been informed that on sever

stolen bicycles had been recovered at the Yellow House Store. (See Exhibit

10.) The officers also knew that the officers searching the store on Dece

verified that a bicycle found at the Yellow House Store had been stolen and t

seized it as evidence and as contraband. That information gave rise to the

inference on the part of the officers searching the residence that the used b

being kept in the basement of the residence rather than in the store where m

hand merchandise could be found, because the defendants knew that they

and did not want them in a place open to the public where they could be loca

officers and confiscated for return to the rightful owners. Under these circ

"probable cause to associate the property with criminal activity was immediat

to the searching officers and they acted reasonably when they determined tha

were contraband and evidence of the crime of receiving stolen property.

The firearms were clearly contraband because they were found in clo

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under both state and federal criminal statutes from possessing firearms. (Se

4204(1) and 18 U.S.C. 922(g)(3)). Finally, the drugs in the pill bottle dispe

name of Anthony Reyes were possessed in violation of state and federal crim

prohibiting the possession of medications without a proper medical p

Clearly, the warrants were sufficiently particularized to provide the

guidance to the seizing agent about what items could properly be seized. Th

items arguably not covered by the warrant was done because they were in pl

there was probable cause to believe that the items were contraband or evide

they were similar in kind to stolen property referenced in the affidavit. Given

it is clear that the second search warrant was not overly broad and that the age

executed the search of the residence on Andover on December 2, 2005, b

agents were clearly able to determine which items the warrant authorized th

The other items seized constituted contraband or evidence of a crime found i

Consequently, defendants claims that the search of the residence on Decem

pursuant to the warrants was overly broad is without merit and the motion to s

items seized from that location on that date should be denied.

2. Severability

Assuming, arguendo, that the Court determines that the provision of th

warrant that authorized the agents to seize [p]hysical property to include bu

to, items that appear new, items that are in their original packaging, and ite



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sufficiently particularized, distinguishable from the invalid portions and up the greater part of the warrant,(citation omitted) we agree with the d

court that severance was appropriate in this case. Under the sevedoctrine, evidence seized pursuant to the invalid portions of the warrantbe suppressed, but evidence seized pursuant to the valid portions owarrant or lawfully seized during the execution of the valid portioadmissible.

United States v. Sells, 463 F.3d 1148, 1161 (10th Cir. 2006) (quoting Unit

Naugle, 997 F.2d 819, 822-23 (10th Cir. 1993) (Doctrine of severability app

portions of the warrant are sufficiently particularized, distinguishable from

portions, and make up the greater part of the warrant). The holding in Naug

more generously characterized to prohibit severability only when the valid po

warrant is not substantial,

expressed not in terms of what was seized but rather in terms of what sand seizure would have been permissible if the warrant had only nthose items as to which probable cause was established. (footomitted). Accordingly, we reject the proposition that the extent of the asearch or the number of items seized is the relevant criteria to detewhether the valid portions of the warrant make up the greater part warrant.

United States v. Sells, 463 F.3d at 1159. The greater part of the warra

focuses on the warrant itself rather than upon an analysis of the items act

during the search. Id.

In this case, the valid parts of both warrants for the Andover residence

December 2, 2005 are clearly distinguishable from the one provision in the

warrant that could arguably be invalid and the valid portions make up the gr



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broad, only evidence seized pursuant to that provision should be suppre

evidence is easily distinguishable from that evidence that was seized und

portions of the warrants and included seizure of documents listed in the first se

and for marijuana and drug-related items and packaging .

B. Search of Yellow House business on December 2, 2005.

1. Items seized pursuant to the search warrant.

The defendants next claim that the evidence seized at the Yellow Hou

December 2, 2005, should be suppressed because the officers grossly e

scope of the property that was to be seized. As before, they do not identify

they claim were improperly seized or how the scope of the warrant was

Consequently, the United States again asserts that failure to do so causes thi

because the defendants have not satisfied their burden. In an abundance

however, the United States will address what it believes are the issues ra

defendants motion to suppress the search of the business in December, 20

A review of the warrant in question reveals that the warrant authoriz

on to the Yellow House property was drawn with particularity. The items tha

warrant authorized the agents to seize included:

Any book, record sheets, receipts, checks/check ledgers, eBay documand other documentation recording the sale, delivery and possessitems being sold or purchased by or through the business located atMassachusetts, including any: CPUs, floppy disks, hard disks, or any means of storing electronic date. The data stored on any comput



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Items that were purchased by Carrie Neighbors during the three da4

mentioned in the affidavit were listed with particularity in the search warrant.

(Items from sale on 11/07/2005)... Items from sale of 11/18/2005) ... (from sale on 11/29/2005).4

(Exhibit 1 at p. 35.) The specificity of the items authorized to be seized clearly

that the warrant itself was not overly broad and it legally justified the seizure

items that fall within the scope of the warrant. Those items include all of the

seized at the business on December 2, 2005, the devices capable of storing d

items of merchandise that were purchased by Carrie Neighbors from th

11/07/2005, 11/18/2005 and 11/29/2005, dates on which Carrie Neighbors

knowledge that the seller claimed the property had been swiped or nabbe

1 at pp. 17, 24.)

2. Items in plain view seized pursuant to probable cause

The defendants argue that the number of items seized by the officers t

specifically authorized to be seized under the warrant converted what may

valid search into a general search requiring suppression of all of the evidence

business on December 2, 2005. This claim is without merit because the

narrowly drawn and the additional items not covered by the warrant consi

personal property were seized because the agents found them in plain vi

probable cause to believe each was contraband or evidence of a crime.


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of a crime, and as the following discussion will establish, those grounds

justified the seizure of the items of merchandise.

As stated previously, probable cause demands not that an officer

"certain" but only that the facts available to a reasonably cautious man wou

belief "that certain items may be contraband or stolen property or useful as e

crime." Texas v. Brown, 460 U.S. at 742, 103 S. Ct. at 1543; see alsoUni

Giannetta, 909 F.2d 571, 578-79 (1st Cir. 1990) (agent need not be convinc

reasonable doubt, but merely have probable cause to believe evidence was in

A review of the information in the possession of the officers searching the Y

Store on December 2, 2005 and the types of evidence seized as contraband

or a crime will establish that their decision to seize the items of merch

supported by probable cause.

The Evidence Custody Sheet for the search of the store on Decem

(attached as Exhibit 4), reveals that the evidence seized as contraband or e

crime fell within several specific categories which included: cameras, electroni

clothing, tools, musical instruments, and a few miscellaneous new item

perfume/cologne and earring sets. All of the items seized appeared to be n

merchandise - the vast majority of the items still had the store tags attache

original packaging - and were similar in nature to the types of new stolen ite

officers knew had been recently purchased by the Yellow House. The merc6



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it had been comingled with other items that the officers knew had been rep

Carrie Neighbors as stolen property before she purchased them.

. Electronics: The officers seized numerous electronic items that we

items sold to Carrie Neighbors by the undercover officer in November, 20

occasions. Carrie Neighbors had purchased numerous new items from the7

after he had told her that the items he was selling had been swiped or na

back of a truck. Those items consisted of various types of electronic equipme

I-Pod Nanos (Ex. 1 at p. 16), Apple I-Pod Shuffles (Ex. 1 at 29, an Apple i-Po

Edition (Ex. 1 at p. 29), a Sonicare toothbrush (Ex. 1 at p. 16), i-Pod station

16,), a Kitchen Aid mixer (Ex. 1 at p. 23), DVD players (Ex. 1 at 16, 29), a digit

(Ex. 1 at p. 29), and a DVD system. (Ex. 1 at 29).

In addition to the various types of electronics sold to Carrie Neighbors o

referenced dates, the officers also knew that other types of stolen new ele

been sold to Carrie Neighbors. They knew that an e-Bay vendor identify

yellowhair-bargains contained a greeting from a person named Carrie Neigh

a Super Target investigator had viewed the web site and found postings for

electronic merchandise that was similar to types of merchandise that were m

the Lawrence, Kansas, Super Target such as Kitchen Aid mixers, vacuum c

other electronic items. (Ex. 1 at p. 5) Nicolle Beach had admitted to stealin



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to Carrie Neighbors vacuum cleaners from the Lawrence, Kansas, Super Ta

stealing and selling a computer and a Kitchen Aid mixer to Carrie Neighbors

4, 6-7) Beach also told the officers that Carrie Neighbors paid more money

unopened boxes, that Carrie Neighbors told her, in sum or substance,

Neighbors had been required to return two of the stolen vacuums sold at Yell

Beach because they had been sitting out when the police came to inquire abo

that she had not returned the Kitchen Aid mixer because it had not been in the

the officer came to investigate. (Ex. 1 a p.7).

The officers also knew that a stolen computer had been recovered a

House Store on November14, 2003 (Ex. 1 at p. 8), and that on October 27, 2

microsystem stereo similar to one stolen from a Super Target that day had

for sale on the yellowhair-bargains eBay site. (Ex. 1 at pp. 9 -10). All of this

clearly provided probable cause for the officers to believe that the new elec

seized on December 2, 2005, were either stolen or were evidence of the afo

crimes.

Clothing

Many of the items in plain view were pieces of clothing that still had th

on them. These items were seized because the officers knew that an emp9

store had been interviewed on November 16, 2005, and had said, in sum or su

the whole business looked like a theft ring (Ex. 1 at p. 21), that he believed th



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Lately, were coming into the Yellow House all day selling brand new clothes, m

(Ex. 1 at p. 21). Averitt and Lately were well known to the Lawrence Police De

prolific shop lifters. Numerous items of new clothing consisting of twenty

jeans, numerous shirts, gloves and hats, still bearing the merchants stor

discovered in the Yellow House when the officers executed the warrant.

officers had probable cause to believe that the new clothes were contraband a

of the crimes under investigation and seizure of those items was lawful.

Cameras:

The officers seized nine new cameras during the search of the Yellow

Store, seven of which were Sony Cybershot brand cameras and two were 10

Share cameras. The sheer number of new Sony Cybershot cameras cons

sufficient to cause a reasonably cautious man to believe that those ite

contraband or stolen property or useful as evidence of a crime." Texas v. Bro

at 742, 103 S. Ct. at 1543. Additionally, the officers knew that the undercove

sold two Fuji cameras to Carrie Neighbors on November 18, 2005, after telling

items he was selling her that day had been swiped from an overstock bin. (E

Clearly, the seizure of the new cameras was based on probable cause and w

Tools

Eight new tool sets were seized during the search which included fo11

DeWalt tools and two sets of Husky tools. The officers knew that th



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interviewed on November 16, 2005, had said that two guys were constantl

new tools like DeWalt brand tools. (Ex. 1 at p. 21). Carrie Neighbors co

information on November 29, 2005, during a discussion with the undercover

his desire to purchase a Husky brand tool set that he saw in the store th

Neighbors said that the tool sets that were out had already been sold but th

brought her tools every week or two. She went on to say that he is a truck dri

able to get DeWalt and Husky tools. C. Neighbors further stated that the guy

the tools, depending on what is available, off of his truck shipments and tha

buy the overstock. (Ex. 1 at p. 30) Clearly, the information provided by the e

confirmed by Carrie Neighbors was sufficient to establish probable for the s

new tools as evidence of the crimes under investigation and contraband.

Musical Instruments

The officers seized a Dean electric guitar because the officers knew th12

2005, the Lawrence Police Department had determined that stolen credit car

used to purchase musical instruments including flutes, trumpets and clarinets,

stores in Lawrence, Kansas. The person who picked up the instruments was

employees of the stores as Stacy Barnes Catlett. (Ex. 1 at p. 9). The Y

employee reported during his interview on November 16, 2005, that Stacey B

had come in to the Yellow House Store a few weeks earlier selling lots o

instruments such as flutes and clarinets. He stated that Carrie Neighbors ha



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newspaper and then she stopped buying from Barnes Catlett. (Ex. 1 at p

information provided sufficient probable cause to justify the seizure of the

electric guitar on December 2, 2005.

Miscellaneous items

The officer seized a few items that had not been previously identified

of stolen items purchased by Carrie Neighbors. Because these items w13

were comingled in the back closet with other new items, including items p

Carrie Neighbors from the undercover officer believing them to have been

incriminatory nature of those miscellaneous items was immediately apparent.

States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999) (once agent came across fa

and credit cards, incriminatory nature of any other items in those nam

immediately apparent to the agent.) Consequently, seizure of these items wa

Here, the search and seizures were reasonable because the officers

items that were covered by the warrant or which they reasonably believed were

or evidence based upon information they possessed when they entered the

execute the warrant. With few exceptions, all of the seized items th

enumerated in the search warrant were new, as evidenced either by in-tact

by original packaging, and all were found in a closet in the back of the store



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The one used item that was seized was a bicycle. Police officers h14

purchased from the affiant by Carrie Neighbors, which she believed had be

had been co-mingled with the other new merchandise.

14

Based on the foregoing, the United States respectfully submits th

evidence collected either at the Yellow House Store or at the residence w

seized, either because it was seized pursuant to the terms of three valid sea

or because it was contraband or evidence of the crimes under investigation

plain view when discovered.

3. Severability

A search is not invalidated in its entirety merely because some seizedwere not identified in the warrant. See United States v. Hargus, 128

1358, 1363 (10th Cir. 1997). Rather, invalidation of an entire search bon a seizure of items not named in the warrant is an extraordinary remthat should be used only when the violations of the warrants requiremare so extreme that the search is essentially transformed intimpermissible general search. United State v. Chen, 979 F.2d 714, 71Cir. 1992). Put another way, searching officers may be said to flagrantly disregarded the terms of a warrant when they engaindiscriminate fishing for evidence. Id.

United States v. Robinson, 275 F.3d 371, 381-82 (9 Cir. 2001). In thth

searching officers did not engage in an indiscriminate fishing expedition.

seized only items from among many pieces of merchandise that reasonably

be new and of the type that they knew from their earlier investigation were ofte

by Carrie Neighbors from persons who had stolen them. The vast majority o



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Yellow House on December 2, 2005, were not seized. The officers cannot be

turned their search in to a general one by flagrantly disregarding the terms o

for the search of the Yellow House store. Consequently, the extraordinary re

suppression is not warranted.

Here, should the court determine that there was insufficient probable ca

the items of merchandise, it should exercise its discretion and order the su

only those items of merchandise that were not authorized to be seized in the w

United States v. Naugle, 997 F.2d at 822-23 (10th Cir.1993) (Doctrine of

applies if valid portions of the warrant are sufficiently particularized, distingu

the invalid portions, and make up the greater part of the warrant). The entire

the search of the Yellow House Store on December 2, 2005 was valid so if a

is suppressed, the United States respectfully submits that it should include o

of new merchandise recovered on December 2, 2005.

C. Warrants for Searches on July 7, 2005 were Valid

Finally, the defendants claim that the two federal search warrants in C

M-8075-01-JPO and 06-M-8075-02-JPO and the piggy back state search wa

5, attached) that issued on July 7, 2006, were based on evidence that was th

poisonous tree because it was obtained during allegedly illegal searches on D

2005. As the foregoing discussion establishes, the searches and seizures o

the Yellow House Store and at the Andover residence in December, 2005, we



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The applications for the warrants that issued on November 30, 20015

attached to each of the affidavits for the federal search warrants, but the infthose documents was obtained prior to and independently of the searches o

finding does not require suppression of the evidence seized during the

searches.

An affidavit containing erroneous or unconstitutionally obtained informinvalidates a warrant if that information was crucial to establishing procause. United States v. Karo, 468 U.S. 705, 179 104 S.Ct. 3296, 82 L.530 (1984). If however, the affidavit contained sufficient accurauntainted information, the warrant is nevertheless valid. Id.

United States v. Morgan, 106 Fed.Appx 694, 2005 WL 3475864 *3 (C.A.10(

With respect to the affidavits submitted for the three warrants issue

2006, each contained sufficient untainted information to establish probable

evidence of a crime or contraband would be found at the Yellow House St

Andover residence. The evidence that the defendants contest was f

applications for the federal warrants at paragraphs 9 - 12 which referred to s

of stolen property that were recovered during the December searches of the s

residence and the results of law enforcement review of certain document

during the December searches. However, even if all information obtain15

December searches, is excised from the July 6 affidavits, the remainin

information overwhelming supports the probable cause finding for all three

warrants. Id.


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s/Terra D. MoreheadTERRA D. MOREHEAD KS S.Ct #

Assistant United States Attorney500 State Avenue, Suite 360Kansas City, Kansas 66101(913) 551-6730 (telephone)(913) 551-6541 (facsimile)E-mail: [email protected]



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CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of August, 2009, the foregoing was e

filed with the clerk of the court by using the CM/ECF system which will send

electronic filing to the following:

John Duma303 E. PoplarOlathe, KS 66061

Attorney for Defendant Carrie Marie Neighbors

Cheryl A. PilateMorgan Pilate LLC142 N. CherryOlathe, KS 66061

Attorney for Defendant Guy Madison Neighbors

I further certify that on this date the foregoing document and the notice

filing were mailed by first-class mail to the following non-CM/ECF participan

None

s/Marietta ParkerAssistant United States Attorney

Case 2:07-cr-20124-CM-JPO Document 197-2 Filed 08/05/2009 Page 1 of 40


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08-5-09 government response motion to suppress

Documents