no. 13-10317 in the united states court of appeals for … · 8/10/2014 · case: 13-10317...

No. 13-10317

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL SAKUMA,

Defendant-Appellant.

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APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE DISTRICT OF HAWAII

NO. CR 12-00055-JMS

APPELLANT’S OPENING BRIEF

MICHAEL J. PARK 4944

Union Plaza

1136 Union Mall, Penthouse 1B

Honolulu, Hawaii 96813

Telephone: (808) 542-5533

FAX: (808) 524-5133

[email protected]

Attorney for Defendant-Appellant

Michael Sakuma

Case: 13-10317 10/08/2013 ID: 8814601 DktEntry: 6-1 Page: 1 of 66

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TABLE OF CONTENTS

SECTION PAGE NO.

TABLE OF CONTENTS .......................................................................................................... i

TABLE OF AUTHORITIES .......................................................................................... iii - v

STATEMENT OF JURISDICTION ..................................................................................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ............................................ 1

STATEMENT OF THE CASE ...............................................................................................2

STATEMENT OF FACTS .......................................................................................................4

SUMMARY OF ARGUMENT ............................................................................................ 13

STANDARD OF REVIEW ................................................................................................... 14

I. DENIAL OF MOTION TO SUPPRESS EVIDENCE ........................... 14

II. ISSUANCE AND EXECUTION OF SEARCH WARRANT ............. 14

ARGUMENT ............................................................................................................................ 15

I. THE TRIAL COURT ERRED IN DENYING SAKUMA’S

MOTION TO SUPPRESS EVIDENCE ................................................... 15

A. SAKUMA’S FOURTH AMENDMENT RIGHTS WERE

VIOLATED BY THE RECKLESS CONDUCT OF THE

HAWAII COUNTY POLICE DEPARTMENT .......................... 22

B. THE EXCLUSIONARY RULE MUST BE APPLIED IN

THIS CASE TO DETER POLICE MISCONDUCT .................. 25


ii

C. THERE WAS INSUFFICIENT INFORMATION SET

FORTH IN THE AFFIDAVIT IN SUPPORT OF THE

WAREHOUSE SEARCH WARRANT TO PERMIT

THE REVIEWING JUDGE TO MAKE AN INFORMED

PROBABLE CAUSE DETERMINATION ...................................30

1. THE SEARCH WARRANT AND AFFIDAVIT IN

SUPPORT OF THE SEARCH WARRANT WERE

LACKING IN PARTICULARITY AS TO THE

PLACE TO BE SEARCHED ...............................................30




ITEMS TO BE SEIZED .........................................................39

D. THE GOOD FAITH EXCEPTION DOES NOT APPLY

TO THE FACTS OF THIS CASE ....................................................41

CONCLUSION .........................................................................................................................43

ADDENDUM TO BRIEF

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES .............. 44-59

CERTIFICATE OF COMPLIANCE ...................................................................................60

STATEMENT OF RELATED CASES...............................................................................60


iii

TABLE OF AUTHORITIES

Cases Page Number

Center Art Galleries-Hawaii v. United States,

875 F.2d 747 (9th Cir. 1989) ......................................................................... 40

Franks v. Delaware,

438 U.S. 154, 98 S.Ct. 2674 (1978) .............................................................. 24

Gonzalez-Rivera v. I.N.S.,

22 F.3d 1441 (9th Cir. 1994) ......................................................................... 14

Groh v. Ramirez,

540 U.S. 551, 124 S.Ct. 1284 (2004) ........................................................... 23

Herring v. United States,

555 U.S. 135, 129 S.Ct. 695 (2009) ............................................................. 25

Illinois v. Gates,

462 U.S. 213, 103 S.Ct. 2317 (1983) ........................................................... 37

Illinois v. Krull,

480 U.S. 340, 107 S.Ct. 1160 (1987) ........................................................... 26

In re Grand Jury Subpoenas Dated December 10, 1987 v. United States,

926 F.2d 847 (9th Cir. 1991) ................................................................... 23, 31

Maryland v. Garrison,

480 U.S. 79, 107 S.Ct. 1013 (1987) ............................................................. 32

United States v. Alexander,

761 F.2d 1294 (9th Cir. 1985) ................................................................. 30, 32

United States v. Calandra,

414 U.S. 338, 94 S.Ct. 613 (1974) ............................................................... 25

United States v. Chesher,

678 F.2d 1353 (9th Cir. 1982) ....................................................................... 33

United States v. Crews,

502 F.3d 1130 (9th Cir. 2007) ....................................................................... 42

United States v. Crozier,

777 F.2d 1376 (9th Cir. 1985) ....................................................................... 40

United States v. Dozier,

844 F.2d 701 (9th Cir. 1988) ............................................................. 24, 33-34

United States v. Elliott,

322 F.3d 710 (9th Cir. 2003) ......................................................................... 14

United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004) ....................................................................... 31

United States v. Forrester,


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512 F.3d 500 (9th Cir. 2008) ......................................................................... 14

United States v. Gilman,

684 F.2d 616 (9th Cir. 1982) ......................................................................... 38

United States v. Grubbs,

547 U.S. 90, 126 S.Ct. 1494 (2006) .............................................................. 31

United States v. Hinton,

219 F.2d 324 (7th Cir. 1955) ......................................................................... 38

United States v. Hotal,

143 F.3d 1123 (9th Cir. 1998) ................................................................. 32, 41

United States v. Jefferson,

566 F.3d 928 (9th Cir. 2009) ......................................................................... 14

United States v. Krupa,

658 F.3d 1174 (9th Cir. 2011) ....................................................................... 14

United States v. Leon,

468 U.S. 897, 104 S.Ct. 3405 (1984) ...................................................... 25-26

United States v. Luk,

859 F.2d 667 (9th Cir. 1988) ............................................................. 26, 29, 40

United States v. Michaelian,

803 F.2d 1042 (9th Cir. 1986) ....................................................................... 41

United States v. Piver,

899 F.2d 881 (9th Cir. 1990) ......................................................................... 22

United States v. Powell,

24 F.3d 28 (9th Cir. 1994) ............................................................................... 1

United States v. Rodgers,

656 F.3d 1023 (9th Cir. 2011) ....................................................................... 14

United States v. SDI Future Health, Inc.,

568 F.3d 684 (9th Cir. 2009) ................................................................... 22, 32

United States v. Spilotro,

800 F.2d 959 (9th Cir. 1986) ......................................................................... 22

United States v. Towne,

997 F.2d 537 (9th Cir. 1993) ................................................................... 23, 41

United States v. Ventresca,

380 U.S. 102, 85 S.Ct. 741 (1965) ................................................................ 24

United States v. Whitney,

633 F.2d 902 (9th Cir. 1980) ................................................................... 33, 38


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Constitutional Provisions

United States Constitution

Fourth Amendment ................................................................................ Passim

Rules

Federal Rules of Appellate Procedure

Rule 4(b)(1)(A) ................................................................................................ 1

Federal Rules of Criminal Procedure

Rule 41 ........................................................................................................... 22

Statutes

18 USC § 3231 ........................................................................................................... 1

21 USC § 841(a)(1) ................................................................................................ 2, 7

21 USC § 841(b)(1)(A) .......................................................................................... 2, 7

21 USC § 846 ......................................................................................................... 2, 7

28 USC § 1291 ........................................................................................................... 1


STATEMENT OF JURISDICTION

The United States District Court for the District of Hawaii had jurisdiction

over the original criminal action pursuant to § 3231 of Title 18 of the United States

Code (“USC”).

The Ninth Circuit Court of Appeals has jurisdiction to hear and decide this

appeal pursuant to 28 USC § 1291.

Defendant-Appellant Michael Sakuma is appealing from the “Judgment in a

Criminal Case” entered on June 3, 2013. Volume (“Vol.”) 1 of the Excerpts of

Record (“ER”) at 3 (docket #73). “[T]he judgment is final for the purposes of

appeal when it terminates the litigation on the merits and leaves nothing to be done

but to enforce by execution what has been determined.” United States v. Powell,

24 F.3d 28, 31 (9th Cir. 1994) (citation omitted).

The Notice of Appeal was timely filed on June 11, 2013 pursuant to Rule

4(b)(1)(A) of the Federal Rules of Appellate Procedure (“Fed. R. App. P.”). Vol.

1 ER at 1 (docket #74).

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1) Did the trial court err in denying Defendant-Appellant Michael

Sakuma’s Motion to Suppress Evidence where the evidence showed

reckless misconduct on the part of the police officers responsible

for preparation and execution of the search warrants?

2) Did the trial court err in finding that the good faith exception applied

to the facts in this case where the search warrant was so over broad

and lacking in particularity and probable cause due to the misleading


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information contained in the affidavit in support of search warrant that

the Fourth Amendment to the United States Constitution was violated?

An addendum containing pertinent constitutional provisions, rules and

statutes is appended to the brief following the Conclusion.

STATEMENT OF THE CASE

On November 15, 2011, police officers from the Hawaii County Police

Department executed a search warrant on a warehouse located at 74-592 A Hale

Maka‘i Place, Kailua-Kona, Hawai‘i 96740. Vol. 2 ER at 278-279, 288.

Defendant-Appellant Michael Sakuma (“Sakuma”) lived in an upstairs portion of

the warehouse. Vol. 2 ER at 279. Items of evidence were recovered from

Sakuma’s residence pursuant to the search warrant, which included over 7 pounds

of a substance later determined to be methamphetamine. Vol. 2 ER at 278, 291.

On January 12, 2012 Sakuma was charged by way of Indictment with

knowingly and intentionally conspiring with others to distribute and possess with

intent to distribute 500 grams or more of a mixture and substance containing a

detectable amount of methamphetamine in violation of 21 USC §§ 846, 841(a)(1)

and 841(b)(1)(A) (Count 1); and, knowingly and intentionally possessing with

intent to distribute 500 grams or more of a mixture and substance containing a

detectable amount of methamphetamine in violation of 21 USC §§ 841(a)(1) and

841 (b)(1)(A) (Count 2). Vol. 1 ER at 258 (docket #1).


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Sakuma challenged the validity of the search warrant by way of “Defendant

Michael Sakuma’s Motion to Suppress Evidence Obtained from State Court Search

Warrants Executed by Hawaii Police Department” (“Motion to Suppress”). Vol. 1

ER at 219 (docket #37). At the October 25, 2012 hearing on Sakuma’s Motion to

Suppress, evidence was presented that showed 3 different versions of the

warehouse search warrant existed, with each version being asserted as a copy of

the original. Vol. 1 ER at 115-165. Evidence was also presented that the search

warrant was overbroad in that the search warrant authorized a search of the entire

warehouse, whereas Sakuma occupied only a small upstairs portion of the

warehouse. Vol. 2 ER at 281, 289, 337.

The trial court denied Sakuma’s Motion to Suppress finding “the good faith

exception applie[d] to any deficiency in the warrant’s description of the place to be

searched and/or the items to be seized, and that no other asserted Fourth

Amendment violations mandate suppression. Vol. 1 ER at 21 (docket #61).

Sakuma entered into a conditional plea agreement with the prosecution.

Vol. 1 ER at 9 (docket #67). Sakuma pled guilty to Count 1 of the Indictment on

January 25, 2013. Vol. 1 ER at 9 (docket #67).

On May 28, 2013, Sakuma was sentenced to 240 months imprisonment

followed by 5 years supervised release, a fine of $20,000.00 and a $100.00 special

assessment. Vol. 1 ER at 3 (docket #73).


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The Notice of Appeal from the judgment was filed on June 11, 2013. Vol. 1

ER at 1 (docket #74).

STATEMENT OF FACTS

On November 15, 2011, Officer Erich Jackson (“Officer Jackson”) prepared

a search warrant to search a warehouse located at 74-592 A Hale Maka‘i Place,

Kailua-Kona, Hawai‘i 96740. Vol. 2 ER at 278-279, 288. According to the

affidavit in support of search warrant 2011-108K (“warehouse search warrant”)

and 2011-109K, in February 2011 Hawaii County police obtained information

from a confidential informant (“CI #1”) that a male, identified as Sakuma, was

living in a studio style apartment on the second level of the warehouse. Vol. 1 ER

at 119. Entry to the second level was secured by a door with a gold colored

locking mechanism. Vol. 1 ER at 119. CI #1 stated that a crystalline substance

resembling methamphetamine was observed in the room Sakuma occupied

sometime in June 2010, December 2010, January 2011, and February 2011. Vol. 1

ER at 119-120. In June 2011, Officer Jackson spoke with CI #1 and verified the

previously provided information. Vol. 1 ER at 121. It was noted in the affidavit to

the search warrant that Sakuma has been a person of interest to narcotics

investigators for approximately two years. Vol. 1 ER at 121.

The affidavit further stated that on November 14, 2011, a male (“CI #2”)

operating a Ford truck was stopped by Hawaii County police officers after leaving


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the warehouse and a green leafy substance resembling marijuana and a crystalline

substance resembling methamphetamine were discovered in the Ford truck. Vol. 1

ER at 122-125. Cash was discovered in CI #2’s pocket. Vol. 1 ER at 124. CI #2

informed Officer Jackson that Sakuma had exited his upstairs room in the

warehouse and handed CI #2 the purported methamphetamine just prior to leaving

the warehouse. Vol. 1 ER at 125. The affidavit describes the warehouse as a

cream colored metal structure with a John Deere sign located on one end and the

business D & M Hydraulics located within the building. Vol. 1 ER at 119, 125.

The warehouse search warrant and affidavit for search warrant were

reviewed and signed by a District Court judge of the Third Circuit Court, State of

Hawaii on November 15, 2011. Vol. 1 ER at 116, 118. One copy of the search

warrant was taken to the judge for signature. Vol. 2 ER at 310-311. The

warehouse search warrant was executed on November 15, 2011. Vol. 2 ER at 288,

291. The search was conducted by Hawaii County police officers without the

assistance of federal authorities. Vol. 2 ER at 277-278. Items of evidence were

recovered pursuant to the search warrant, which included approximately 7 pounds

of a substance later determined to be methamphetamine. Vol. 2 ER at 278, 291.

On November 18, 2011, an affidavit in support of four search warrants,

2011-110K, 2011-111K, 2011-112K, 2011-113K (“computer search warrants”)

was prepared by Officer Mekia Rose (“Officer Rose”). Vol. 1 ER at 142. Officer


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Rose requested the issuance of a search warrant to search four computers

recovered from Sakuma’s residence on November 15, 2011. Vol. 1 ER at 142,

147-148. Attached as Exhibits “A” and “B” to the affidavit in support of the

computer search warrant was a copy of the warehouse search warrant and affidavit

to search warrant that was purportedly issued to search Sakuma’s residence on

November 15, 2011. Vol. 1 ER at 147, 153-165. Exhibit “A”, an alleged copy of

the warehouse search warrant, is missing the description of the property to be

searched. Vol. 1 ER at 153-154. The computer search warrants and affidavit for

search warrant were presented to a District Court judge of the Third Circuit Court,

State of Hawaii who allegedly reviewed and signed the search warrants. Vol. 1 ER

at 142-143.

On November 23, 2011, Officer Jackson prepared a search warrant and

affidavit for search warrant, 2011-115K (“storage unit search warrant”), to search a

storage unit leased by Sakuma. Vol. 1 ER at 255-256. A copy of the warehouse

search warrant and affidavit issued on November 15, 2011 were attached to the

affidavit as Exhibit “A.” See Defendant’s Exhibit 203 entered into evidence on

October 25, 2012 (docket #50). Exhibit “A”, a copy of the warehouse search

warrant, is different from the warehouse search warrant on file with the Kona

Court, and is different from the search warrant attached to the affidavit in support

of the computer search warrant. Vol. 1 ER at 251-256. The storage unit search


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warrant and affidavit were presented to a District Court judge of the Third Circuit

Court, State of Hawaii who allegedly reviewed and signed the search warrant on

November 23, 2011. See Defendant’s Exhibit 203 entered into evidence on

October 25, 2012 (docket #50).

Sakuma was initially charged with violation of Hawaii state laws by the

Hawaii County prosecutor’s office. Vol. 2 ER at 277-278. Shortly thereafter

Sakuma’s case was referred to the United States Attorney for the District of Hawaii

for prosecution. Vol. 2 ER at 278.

On January 12, 2012, an Indictment was filed in the United States District

Court for the District of Hawaii charging Sakuma with knowingly and intentionally

conspiring with others to distribute and possess with intent to distribute

approximately 7 pounds of methamphetamine in violation of 21 USC §§ 846,

841(a)(1) and 841(b)(1)(A) (Count 1); and, knowingly and intentionally possessing

with intent to distribute 500 grams or more of methamphetamine in violation of 21

USC §§ 841(a)(1) and 841 (b)(1)(A) (Count 2). Vol. 1 ER at 258 (docket #1).

On August 31, 2012, Sakuma filed a Motion to Suppress. Vol. 1 ER at 219

(docket #37). Through this motion, Sakuma drew the trial court’s attention to the

fact that ostensibly three different versions of the warehouse search warrant

authorized by the state court judge existed, with each version of the search warrant

being asserted as a copy of the original by members of the Hawaii County Police


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Department. Vol. 1 ER at 228-231 (docket #37). Sakuma sought suppression of

all the evidence claiming a violation of the Fourth Amendment to the United States

Constitution. Vol. 1 ER at 220 (docket #37).

Sakuma offered three bases for requesting suppression. First, Sakuma

argued that the warehouse search warrant was invalid because there were three

different versions of the search warrant, with each version of the search warrant

being asserted as a copy of the original by members of the Hawaii County Police

Department. Vol. 1 ER at 228-230. Second, Sakuma claimed that members of the

Hawaii County Police Department failed to satisfy the knock and announce

requirements prior to forcing entry into Sakuma’s place of residence. Vol. 1 ER at

230-237. Finally, Sakuma claimed a violation of the Fourth Amendment to the

United States Constitution occurred when members of the Hawaii County Police

Department failed to give Sakuma a copy of the search warrant at the time the

search was being conducted. Vol. 1 ER at 237-245.

The prosecution filed its “Memorandum of Points and Authorities in

Opposition to Defendant’s Motion to Suppress Evidence” on September 28, 2012.

Vol. 1 ER at 166 (docket #41).

The hearing on Sakuma’s Motion to Suppress was held on October 25, 2012.

Vol. 2 ER at 262 (docket #50). At the hearing, evidence was presented through the

testimony of Officer Jackson (Vol. 2 ER at 276-344); Officer Calvin Delaires (Vol.


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2 ER at 344-351); Officer Michael Abran (Vol. 2 ER at 352-356); Christina

Kawamoto (“Ms. Kawamoto”) (Vol. 2 ER at 360-368); George Tamashiro (Mr.

Tamashiro”) (Vol. 2 ER at 368-385); and Priscilla Basque (Vol. 2 ER at 385-394).

Officer Jackson testified that he had information Sakuma was distributing

methamphetamine from a warehouse located at 74-592 A Hale Maka‘i Place in

Kailua-Kona, Hawaii. Vol. 2 ER at 278-279. This warehouse is almost directly

across the street from the Kailua-Kona police station. Vol. 2 ER at 279-280. It is a

large warehouse. Vol. 2 ER at 294. Sakuma had been under police surveillance

for two years. Vol. 2 ER at 336. Officer Jackson was informed that Sakuma was

the maintenance man for the warehouse. Vol. 2 ER at 279, 284. Officer Jackson

knew Sakuma lived in an upstairs unit of the warehouse. Vol. 2 ER at 283, 330-

331. Officer Jackson had prior information on how to enter Sakuma’s residence.

Vol. 2 ER at 300. Different businesses occupy the warehouse. Vol. 2 ER at 285.

The building owner, Mr. Tamashiro, maintained an office at the warehouse. Vol. 2

ER at 336.

Mr. Tamashiro testified that there were about eleven tenants of the

warehouse. Vol. 2 ER at 379. John Deere, American Machinery, BEI, Kona

Machine, and D & M Hydraulics were business tenants of the warehouse. Vol. 2

ER at 336, 361, 369. While the address for the entire warehouse is 74-592 A Hale

Maka‘i Place, the warehouse was subdivided into suites for rental purposes. Vol. 2


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ER at 285-286, 383-384. A tenant of the warehouse, Ms. Kawamoto, was detained

at gun point by police officers executing the search warrant as she exited the

warehouse ladies room. Vol. 2 ER at 338, 346-350, 353-356.

A copy of the warehouse search warrant was entered into evidence as

Government’s Exhibit 3. Vol. 1 ER at 113-114; Vol. 2 ER at 286-287. This copy

of the warehouse search warrant is Bate stamped on the bottom right corner

indicating it was a copy of the discovery materials produced by the government

rather than a copy of the actual document contained in the Kona Courthouse file.

Vol. 1 ER at 113, 188-214, 251-254. Sakuma objected to admission of

Government’s Exhibit 3, which the trial court overruled. Vol. 2 ER at 26.

Defendant’s Exhibit 209 is a copy of “version one” the warehouse search warrant.

Vol. 1 ER at 113-114. Defendant’s Exhibit 210 is a copy of the affidavit in

support of the warehouse search warrant. Vol. 1 ER at 117-141. Defendant’s

Exhibit 212 is a copy of the affidavit in support of the computer search warrant and

contains “version two” of the warehouse search warrant. Vol. 1 ER at 142-165.

Defendant’s Exhibits 209, 210 and 212 were entered into evidence and are copies

of the original documents on file at the Kona Courthouse. Vol. 1 ER at 115-165;

Vol. 2 ER at 359-360. A copy of the affidavit in support of the storage unit search

warrant obtained in discovery from the government was entered into evidence as

Defendant’s Exhibit 203 and contains “version three” of the warehouse search


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warrant. Vol. 2 ER at 314-315. See also Defendant’s Exhibit 203 entered into

evidence at the hearing on Sakuma’s Motion to Suppress.1 Vol. 2 ER at 314

(docket #50). The differences between the three versions of the warehouse search

warrant were called to Officer Jackson’s attention. Vol. 2 ER at 340-341. Officer

Jackson was unable to explain why the copies of the search warrant were different

even though he testified that only one copy of the search warrant was taken to the

District Court judge for signature. Vol. 2 ER at 310-311, 341.

After hearing testimony from the witnesses regarding the drafting and

execution of the search warrant, the trial court requested additional briefing on the

issue of the search warrant being overbroad and lacking in particularity. Vol. 2 ER

at 401-411. The trial court was concerned about the necessity of requesting a

search warrant for the entire warehouse, which included several different

businesses, where Sakuma’s residence occupied only a small portion of the

warehouse. Vol. 2 ER at 402-403. The “Government’s Memorandum of

Additional Briefing on Defendant’s Motion to Suppress Evidence” was filed on

November 13, 2012. Vol. 1 ER at 92 (docket #54). “Defendant Michael Sakuma’s

Supplemental Memorandum in Support of Motion to Suppress Evidence”

(“Supplemental Memorandum in Support”) was filed on November 13, 2012. Vol.

1 Sakuma inadvertently neglected to retain a copy of Defendant’s Exhibit 203 and

therefore directs the Court’s attention to the document entered into evidence at the

October 25, 2012 hearing, which is a copy of the document provided by the

Government in discovery. See Docket Entry #50.


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1 ER at 77 (docket #55). The “Government’s Response to Court’s Additional

Question and Reply to Defendant’s Supplemental Brief on Motion to Suppress

Evidence” was filed on November 19, 2012. Vol. 1 ER at 642 (docket #58).

On November 28, 2012, the trial court issued its “Order Denying Defendant

Michael Sakuma’s Motion to Suppress Evidence Obtained from State Court Search

Warrants Executed by Hawaii Police Department” (“Order Denying Motion to

Suppress”). Vol. 1 ER at 21 (docket #61).

Sakuma entered into a conditional plea agreement with the prosecution.

Vol. 1 ER at 9 (docket #67). In exchange for Sakuma’s guilty plea to Count 1 of

the Indictment, the prosecution agreed that Sakuma retained the right to appeal the

denial of his Motion to Suppress and would move to dismiss Count 2 after

sentencing. Vol. 1 ER at 9 (docket #67). On January 25, 2013 Sakuma entered his

guilty plea as to Count 1 in accordance with the plea agreement. Vol. 1 ER at 9

(docket #67).

On May 28, 2013, Sakuma was sentenced to two hundred forty months

imprisonment followed by five years supervised release, a $20,000.00 fine, and

special assessment of $100.00. Vol. 1 ER at 3-8 (docket #73). Count 2 was

2 Attachment A, a draft transcript of Officer Jackson’s testimony from the October

25, 2012 hearing, has been omitted from the ER. The reader is referred to Vol. 2

ER for a copy of the final transcript.


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dismissed. Vol. 1 ER at 3. The judgment was entered on June 3, 2013. Vol. 1 ER

at 3 (docket #73).

The Notice of Appeal from the judgment of conviction was entered on June

11, 2013. Vol. 1 ER at 1 (docket #74). Sakuma is presently in custody with an

expected release date in January 2032.

SUMMARY OF ARGUMENT

Sakuma asserts that the trial court erred in denying his Motion to Suppress

Evidence. Sufficient evidence was introduced at the hearing on the Motion to

Suppress to allow the trial court to find a pattern of reckless misconduct by the

Hawaii County Police Department in the preparation and execution of the

warehouse, computer and storage unit search warrants in violation of the Fourth

Amendment to the United States Constitution. Additionally, sufficient evidence

was introduced to show that state court judges failed to carefully scrutinize the

affidavits for search warrant and search warrants prior to authorizing the search of

Sakuma’s residence, computers and storage unit.

Finally, Sakuma asserts that the trial court erred in concluding that the good

faith exception applied to the circumstances in this case, which led to the issuance

and execution of an overbroad search warrant lacking in particularity and probable

cause in violation of the Fourth Amendment to the United States Constitution.


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STANDARD OF REVIEW

I. DENIAL OF MOTION TO SUPPRESS EVIDENCE

Motions to suppress are reviewed de novo. See United States v. Rodgers,

656 F.3d 1023, 1026 (9th Cir. 2011). The district court’s findings of fact denying a

motion to suppress are reviewed for clear error. Id. The district court’s legal

conclusions denying a motion to suppress are reviewed de novo. United States v.

Forrester, 512 F.3d 500, 506 (9th Cir. 2008).

Whether the exclusionary rule is applicable “to a given case is reviewed de

novo while underlying factual findings are reviewed for clear error.” See United

States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009) (citation omitted). Whether

an officers’ conduct “was sufficiently egregious to require application of the

exclusionary rule” is a question reviewed de novo. Gonzalez-Rivera v. I.N.S., 22

F.3d 1441, 1449 (9th Cir. 1994) (citation omitted).

II. ISSUANCE AND EXECUTION OF SEARCH WARRANT

Whether probable cause is lacking because of alleged misstatements and

omissions in the affidavit is reviewed de novo. See United States v. Elliott, 322

F.3d 710, 714 (9th Cir. 2003). Whether the good faith exception to the

exclusionary rule applies in any given case is subject to de novo review. See

United States v. Krupa, 658 F.3d 1174, 1179 (9th Cir. 2011).


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ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING SAKUMA’S

MOTION TO SUPPRESS.

Through his Motion to Suppress, Sakuma sought an order suppressing all

evidence recovered pursuant to the search warrant executed on November 15,

2011, all fruits derived from execution of the search warrant, and prohibiting use of

this evidence at trial. Vol. 1 ER at 219 (docket #37). Sakuma’s Motion to

Suppress directed the trial court’s attention to the fact that officers from the Hawaii

County Police Department claimed each of three different versions of the

warehouse search warrant were copies of the original; with two different versions

being asserted as a copy of the original under oath or affirmation. Vol. 1 ER at 219

(docket #37). It was Sakuma’s position that due to the existence of so many

different versions of the “original” it was impossible to know which of the copies

was actually presented to the District Court judge for review and signature.

Through his Supplemental Memorandum in Support, Sakuma sought to

direct the trial court’s attention to the fact that the affidavit in support of the

warehouse search warrant was based upon suspect information designed to mislead

the District Court judge as to the multiunit character of the warehouse, which

resulted in the issuance of an overbroad search warrant lacking in particularity and

probable cause. Vol. 1 ER at 77 (docket #55).


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The trial court erred in concluding that the good faith exception applied to

any deficiency in the search warrant’s description of the place to be searched and

that no other asserted Fourth Amendment violations mandate suppression. Vol. 1

ER at 22 (docket #61).

The trial court made the following findings of fact in the Order Denying

Motion to Suppress:

Officer Jackson was told that Defendant performed general

maintenance for the warehouse and therefore had keys for all areas of

the warehouse.

Vol. 1 ER at 27 (emphasis added).

Officer Jackson inadvertently attached this version of the search

warrant (with the misspelled street address) to a follow-up Affidavit

for Search Warrant to search a storage container rented by Defendant

that is not at issue in this action.


In the discussion section of the Order Denying Motion to Suppress, the trial

court made the following observation:

The court is therefore presented with a warrant authorizing a search of

the entire warehouse where Defendant lived in only one area of the

warehouse, yet an informant told officers that Plaintiff [sic] has access

to almost all units in the warehouse.

Vol. 1 ER at 36 (docket #61) (emphasis added).

In applying the first principle of the “good faith exception” the trial court

concluded:


17

There is no evidence on the record that Officer Jackson made any

false statements or disregarded the truth in his Affidavit, much less

any “clear indicia” of bad faith. Rather, the Affidavit outlines in

detail the location of the warehouse and the facts supporting probable

cause to search the warehouse, and there is no basis on the record to

suggest that any statements contained therein are false or misleading.

Indeed, Defendant does not even argue that this circumstance applies

in this action. See Doc. No. 55, Def.’s Suppl. Br. at 15. The court

therefore finds that Officer Jackson did not mislead the issuing judge.

Vol. 1 ER at 40- 41 (docket #61) (emphasis added).

In applying the second principle of the “good faith exception” the trial court

concluded:

Instead, Defendant asserts that the issuing judge acted as a mere

rubber stamp because (1) the signature page of the warrant did not

include any substantive text (which ultimately allowed officers to

mistakenly submit drafts of the warrant in support of follow-up

warrants; and (2) the warrant failed to include an “Exhibit A”

providing the statutory definition of “drug-related paraphernalia.”

Doc. No. 55, Def.’s Suppl. Br. at 12. FN 7. Contrary to Defendant’s

argument, these alleged errors fail to suggest that the issuing judge

failed to perform his job.

FN 7. Defendant further argues that the operative warrant was

the one attached to Officer Rose’s Affidavit, which included no

description of the items to be seized. Doc. No. 55, Def.’s

Suppl. Br. at 13. As explained below, the court rejects this

argument as factually incorrect.

Vol. 1 ER at 42-43 (emphasis added).

The court therefore finds that the issuing judge did not abandon his

role in signing the warrant.



18

In applying the third principle of the “good faith exception” the trial court

decided:

The facial deficiency inquiry focuses on the warrant itself, and does

not delve into the affidavit, the knowledge of the officers, or other

matters external to the warrant.

Vol. 1 ER at 45 (docket #61) (emphasis added).

The court therefore finds that the warrant was not facially deficient.

ER at 48 (docket #61) (emphasis added).

In applying the fourth principle of the “good faith exception” the trial court

reframed Defendant’s argument as “whether the Affidavit established probable

cause to search the entire warehouse as opposed to his apartment only.” ER at 48-

49 (docket #61). The trial court goes on to find:

As to the warrant’s description of the place to be searched, the warrant

authorized a search of the entire warehouse even though there were

multiple units housing four separate businesses. . . .

* * *

Applying these principles, the Affidavit provides at least a

colorable argument for probable cause to search the entire warehouse.

. . . These facts suggest that Defendant had control of most areas

within the warehouse, making the entire warehouse “suspect.”

Further, the Ninth Circuit has not defined what facts an affidavit must

contain to establish probable cause for control and/or access. . . . The

court therefore finds that the Affidavit was not so lacking in indicia of

probable cause that no reasonable officer could rely upon it in good

faith.

In sum, the court finds that none of the circumstances

precluding application of the good faith exception applies to this case.

. . . As a result, even if the warrant was technically deficient, a

reasonably well trained officer would not have known that the search


19

was illegal given all of the circumstances. See Leon, 468 U.S. at 922

n.23. The good faith exception applies.

Vol. 1 ER at 50-52 (emphasis added).

In addressing Sakuma’s argument that there was insufficient evidence from

which the court could conclude with any degree of certainty that Government’s

Exhibit 3 was a copy of the original warehouse search warrant submitted to the

District Court judge for signature, the trial court reframed Defendant’s argument as

one asserting “the officers executed the version of the warrant that was attached to

Officer Rose’s Affidavit for a follow-up search warrant for Defendant’s

computers.” Vol. 1 ER at 53 (docket #61). After limiting Sakuma’s argument, the

trial court found:

The court rejects this argument - - Officer Rose’s Affidavit establishes

at most only that he attached an earlier, incomplete version of the

warrant to his November 18, 2011 Affidavit - - it does not establish

that the warrant signed by Judge Florendo and executed on the

warehouse failed to describe the property to be seized. FN 8. Rather,

Officer Jackson’s credible testimony establishes that he presented

Government’s Exhibit 3 for Judge Florendo’s signature, and that this

was the warrant that was executed on Defendant’s residence.

The court therefore DENIES Defendant’s Motion to Suppress

to the extent it argues that the November 15, 2011 search warrant

provided no description of the evidence to be seized.

FN 8. The government asserts that it does not plan on relying

on any evidence obtained from the search of Defendant’s

computers.

Vol. 1 ER at 53-54 (docket #61) (emphasis added).


20

In addressing Sakuma’s argument that the warehouse search warrant was

lacking in particularity because “Exhibit A”, a copy of the statutory definition of

drug paraphernalia, was not attached to the search warrant, the trial court

concluded:

The court rejects that the failure to include “Exhibit A” requires

suppression of any evidence seized.

Vol. 1 ER at 54 (docket #61).

The trial court went on to find:

The court finds this caselaw persuasive and therefore finds that

the warrant’s authorization for officers to seize “drug related

paraphernalia” as provided by [Hawai‘i Revised Statutes] § 329-1,

without providing the statutory definition, meets the particularity

requirement. . . .

The court further finds that even if the warrant was not

sufficiently particularized for failure to attach Exhibit A, the good

faith exception applies such that the evidence should not be

suppressed. Officer Jackson attached Exhibit A to his Affidavit and

not the warrant and these facts do not suggest that (1) Officer Jackson

misled the signing judge, (2) the judge abandoned his judicial role in

approving the warrant, (3) the warrant was so facially deficient such

that officers could not reasonably presume it to be valid, or (4) Officer

Jackson’s Affidavit lacked indicia of probable cause. Rather, based

on the plain language of the search warrant, reasonably objective

officers would understand that they were authorized to seize “drug

related paraphernalia,” the general definition of which any officer

would know through their training and experience. . . .

The court therefore DENIES Defendant’s Motion to Suppress

to the extent based on Defendant’s assertion that the warrant failed to

particularly describe the items to be seized.

Vol. 1 ER at 56-57 (docket #61) (emphasis added).


21

Finally, the trial court concluded, “Based on the above, the court DENIES

Defendant’s Motion to Suppress.” Vol. 1 ER at 63 (docket #61).

Sakuma asserts that the trial court’s findings of fact and conclusions of law,

as set forth above, are in error. A review of the affidavits and search warrants,

along with the testimony adduced at the hearing on Sakuma’s Motion to Suppress

and supporting memorandums demonstrate that sufficient evidence exists to

conclude that officers from the Hawaii County Police Department are making

reckless and misleading statements, under oath or affirmation, in an effort to secure

search warrants. No certainty exists as to which version of the warehouse search

warrant and affidavit the judge actually signed. The state court judges are

endorsing this reckless misconduct by failing to scrutinize the affidavits and search

warrants. Sakuma did not have unfettered access to “all” units of the warehouse,

which housed at least six different businesses. The trial court has taken

inconsistent positions in regards to applying the third principle of the good faith

exception to the facially deficient search warrant. The court concluded that facial

deficiency does not delve into the knowledge of the officers, and then found the

search warrant sufficiently particularized in the absence of Exhibit A by allowing

the officers to decide what constitutes drug paraphernalia based upon their training

and experience. The evidence in this case must be suppressed in order to prevent

police misconduct from resulting in further violations of the Fourth Amendment.


22

A. SAKUMA’S FOURTH AMENDMENT RIGHTS

WERE VIOLATED BY THE RECKLESS CONDUCT

OF THE HAWAII COUNTY POLICE DEPARTMENT.

In this case, Sakuma must rely solely on the protections afforded by the

Fourth Amendment to the United States Constitution as the requirements of Rule

41 of the Federal Rules of Criminal Procedure (“Fed. R. Crim. P.”) do not apply to

state issued and executed search warrants. “[S]earches conducted by state officers

with state warrants issued by state judges, with minimal or no federal involvement,

are not to be judged by the specific provisions of Rule 41 but must only conform to

federal constitutional standards.” United States v. Piver, 899 F.2d 881, 882 (9th

Cir. 1990) (citations omitted).

“The Fourth Amendment ensures that ‘[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause

supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.’” United States v. SDI Future

Health, Inc., 568 F.3d 684, 694-95 (9th Cir. 2009) (quoting U.S. Const. amend. IV).

This requirement prevents general, exploratory searches and indiscriminate

rummaging through a person’s belongings. [Citation omitted.] It also

ensures that the magistrate issuing the warrant is fully apprised of the scope

of the search and can thus accurately determine whether the entire search is

supported by probable cause.

United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986) (citation omitted).


23

In essence, the Fourth Amendment sets forth four specific elements that

must be met before a search conducted pursuant to a warrant will be deemed

proper: 1) the warrant must be based upon probable cause; 2) supported by oath or

affirmation; 3) particularly describing the place to be searched; and 4) particularly

describing the persons or things to be seized. See Groh v. Ramirez, 540 U.S. 551,

557, 124 S.Ct. 1284, 1289 (2004).

The preference for searches conducted by warrant “is a means of preventing

unreasonable invasions of privacy; the search warrant itself is the tangible evidence

that precautions have been taken to ensure that no such invasion has occurred.”

United States v. Towne, 997 F.2d 537, 548 (9th Cir. 1993).

When the officer who requests authorization for the search, the magistrate

who grants such authorization, and the officers who execute the search

expressly rely upon a given set of papers containing a given series of words,

they identify that set of papers and that series of words as the proof that

proper precautions were taken to prevent an unreasonably invasive search.

Fairness and common sense alike demand that we test the sufficiency of the

precautions taken – this is, that we conduct the particularity and overbreadth

inquiries – by examining that evidence.

Id. (emphasis in original).

Sakuma acknowledges that “[a] certain deference should be given searches

where the law enforcement officers have sought and obtained judicial approval of

their actions.” In re Grand Jury Subpoenas Dated December 10, 1987 v. United

States, 926 F.2d 847, 855 (9th Cir. 1991). “This is to avoid a ‘grudging or negative

attitude by reviewing courts toward warrants which will tend to discourage police


24

officers from submitting their evidence to a judicial officer before acting.’” Id. at

855-56 (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746

(1965) (brackets omitted)).

However, the fact that a search was conducted pursuant to a search warrant

does not preclude inquiry into the assertion of probable cause and particularity

details presented to the court prior to issuing the search warrant. “[A] defendant

may challenge a facially valid warrant when [the warrant affidavit] contains

deliberate or reckless omissions of facts that tend to mislead.” United States v.

Dozier, 844 F.2d 701, 705 (9th Cir. 1988) (citation omitted).

The trial court in this case had sufficient evidence before it from which it

could conclude that Hawaii County police officers recklessly prepared the

warehouse search warrant and affidavit in support of search warrant by omitting

relevant information about the multi-occupancy character of the warehouse. The

police officers failed to perform a minimal amount of investigation, which resulted

in the omission and misrepresentation of information contained in the affidavit

supporting the search warrant. The evidence in this case must be suppressed due to

the “substantial and deliberate” violation of Sakuma’s Fourth Amendment rights.

See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684 (1978).


25

B. THE EXCLUSIONARY RULE MUST BE APPLIED IN

THIS CASE TO DETER POLICE MISCONDUCT.

The exclusionary rule is “a judicially created remedy designed to safeguard

Fourth Amendment rights generally through its deterrent effect, rather than a

personal constitutional right of the party aggrieved.” United States v. Calandra,

414 U.S. 338, 348, 94 S.Ct. 613, 620 (1974) (footnote omitted). “[T]he rule’s

prime purpose is to deter future unlawful police conduct and thereby effectuate the

guarantee of the Fourth Amendment against unreasonable searches and seizures[.]”

Id. at 347, 94 S.Ct. at 619-20.

The deterrent purpose of the exclusionary rule necessarily assumes that the

police have engaged in willful, or at the very least negligent, conduct which

has deprived the defendant of some right. By refusing to admit evidence

gained as a result of such conduct, the courts hope to instill in those

particular investigating officers, or in their future counterparts, a greater

degree of care toward the rights of an accused.

United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 3419 (1984) (citation

omitted).

“The exclusionary rule was crafted to curb police rather than judicial

misconduct[.]” Herring v. United States, 555 U.S. 135, 142, 129 S.Ct. 695, 701

(2009) (citation omitted). “To trigger the exclusionary rule, police conduct must

be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently

culpable that such deterrence is worth the price paid by the justice system.” Id. at

144, 129 S.Ct. at 702. Application of the exclusionary rule in cases where the


26

evidence was obtained pursuant to a search warrant “should be ordered only on a

case-by-case basis and only in those unusual cases in which exclusion will further

the purposes of the exclusionary rule.” Leon, 468 U.S. at 918, 104 S.Ct. at 3418.

The United States Supreme Court has “noted three factors that determined

whether the exclusionary rule should be applied: (1) whether suppression would

affect the group conduct that the exclusionary rule was designed to punish, i.e.

police misconduct; (2) the source of the error in the particular case and whether

any evidence suggested that the source, e.g., issuing magistrates, was inclined to

ignore or subvert the Fourth Amendment (citation omitted); and (3) the basis for

believing the exclusion of evidence will have a significant deterrent effect upon the

source of the error.” United States v. Luk, 859 F.2d 667, 675 (9th Cir. 1988)

(citing Illinois v. Krull, 480 U.S. 340, 348,107 S.Ct. 1160, 1166 (1987)).

Based upon the totality of the circumstances, evidence of a widespread

pattern of abuse can be attributed to the Hawaii County Police Department’s

method of preparation of the affidavits in support of the search warrants and the

search warrants themselves. Evidence submitted in support of Sakuma’s Motion

to Suppress demonstrates a reckless disregard for the Fourth Amendment oath or

affirmation requirement. As such, the trial court’s conclusion that Government’s

Exhibit 3 was a copy of the actual search warrant issued in this case was error.


27

Four difference copies of Search Warrant No. 2011-108K were submitted at

the October 25, 2012 hearing: Government’s Exhibit 3 and Defendant’s Exhibits

203, 209 and 212. Vol. 1 ER at 113-165 (docket #50). Two of these versions,

which were attached as exhibits to the computer and storage unit search warrants,

were submitted under oath or affirmation to Hawaii State District Court judges as

being a copy of the original warehouse search warrant. Vol. 1 ER at 153-154

(docket #50); See Defendant’s Exhibit 203 (docket #50). The four versions differ

in the following respects:

Government’s Exhibit 3: Search Warrant No. 2011-108K contains the

header of a document filed on September 28, 2012 in 12-cr-00055 across the

top of both pages; the bottom of the first page is Bate stamped “Sakuma

000000115” and the bottom of the second page is Bate stamped “Sakuma

000000116”; Exhibit “1” is stamped on the bottom center of the first and

second pages; the document was certified as a copy of the original on file;

there are two “COPY” stamps on the first page; and, a large “SEAL” stamp

was placed on the right side of the judge’s signature on the second page.

Vol. 1 ER at 113-114 (docket #50).

Defendant’s Exhibit 209: Search Warrant No. 2011-108K contains an

“Original” stamp placed over the “COPY” stamp on the upper left corner of

the first page; the filed stamp contains the signature of the court clerk; a


28

small “SEAL” stamp has been placed on the right side of the judge’s

signature on the second page; and the document was certified as a copy of

the original on file. Note that the time within which the warrant can be

executed has been left blank.

Vol. 1 ER at 115-116 (docket #50).

Defendant’s Exhibit 212: Search Warrant No. 2011-108K is attached as

Exhibit A to a Copy of the Affidavit for Search Warrant under Search

Warrant No. 2011-110K; 2011-111K; 2011-112K; 2011-113K, which

contains an “Original” stamp placed over the “COPY” stamp on the upper

left corner of the first page; and the filed stamp contains the signature of the

court clerk. Exhibit A is completely devoid of a description of the property

capable of being seized. The judge’s signature does not contain a “SEAL”

stamp.

Vol. 1 ER at 142-143, 153-154 (docket #50).

Defendant’s Exhibit 203: Search Warrant No. 2011-108K is attached as

Exhibit A to a Copy of the Affidavit for Search Warrant under Search

Warrant No. 2011-115K. Exhibit A contains a line (____) following the

phrase “SEARCH WARRANT NO.” on the upper right corner, which does

not appear on the other two versions of the warehouse search warrant. The

description of the place to be searched and the spacing of the description of


29

the items to be seized are different from the other two versions of the

warehouse search warrant. The bottom of the first page is Bate stamped

“Sakuma 000000157” and the bottom of the second page is Bate stamped

“Sakuma 000000158”. The placement of the “SEAL” stamp by the judge’s

signature is different from the other two versions of the warehouse search

warrant.

See Defendant’s Exhibit 203 (docket #50).

Officer Jackson testified that he had only one copy of Search Warrant No.

2011-108K and the Affidavit in Support of Search Warrant for the District Court

judge’s signature. Vol. 2 ER at 311-312. If there was only one original all copies

of the original warehouse search warrant should be the same. But they are not. No

explanation for the differences has been provided.

Attaching suspect versions of the warehouse search warrant to affidavits in

support of other search warrants shows that the Hawaii County Police Department

failed in its obligation to provide the reviewing judge with accurate and truthful

information. Applying the three factors set forth in Luk, 859 F.2d at 675, it is clear

that suppression of the evidence in this case will punish the group responsible for

the misconduct, the Hawaii County Police Department; the source of the error,

members of the Hawaii County Police Department, have demonstrated a

lackadaisical attitude toward procedure, something that must be adhered to in order


30

to ensure compliance with the requirements of the Fourth Amendment; and,

requiring the exclusion of evidence in this case will provide an incentive for the

Hawaii Police Department to implement a new series of rules and regulations that

will instill the serious nature of an oath/affirmation and prevent future misconduct.

C. THERE WAS INSUFFICIENT INFORMATION SET

FORTH IN THE AFFIDAVIT IN SUPPORT OF THE

WAREHOUSE SEARCH WARRANT TO PERMIT

THE REVIEWING JUDGE TO MAKE AN INFORMED

PROBABLE CAUSE DETERMINATION.

Not only did the Hawaii County Police Department mislead the reviewing

judge by incorporating suspect documents into the affidavits in support of the

computer and storage unit search warrants,3 the affidavit to the warehouse search

warrant itself was lacking in probable cause due to the omission of relevant

information regarding the necessity of searching the entire warehouse.

1. THE SEARCH WARRANT AND AFFIDAVIT

IN SUPPORT OF THE SEARCH WARRANT

WERE LACKING IN PARTICULARITY AS TO

THE PLACE TO BE SEARCHED.

A challenge to an overbroad search warrant “is really a challenge based on

lack of probable cause.” United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir.

1985) (citation omitted). “Probable cause exists when, considering the totality of

3 The tactical decision of the prosecution to forgo use of the evidence obtained by

way of the computer and storage unit search warrants should not preclude

examination of the police misconduct under a totality of the circumstances

analysis.


31

the circumstances, the affidavit shows that there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” United

States v. Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004) (internal quotation marks

and citation omitted).

“An affidavit in support of the warrant must enable the magistrate to

conclude that it would be reasonable to seek the evidence in the place indicated by

the affidavit.” In re Grand Jury Subpoenas, 926 F.2d at 855 (internal quotation

marks and citation omitted). In this case, the affidavit provides little reliable

information from which it can be inferred that Sakuma kept illicit substances

within the entire warehouse. The omission of pertinent information from the

affidavit misled the District Court judge, and caused the issuance of an overly

broad search warrant lacking in particularity.

The Fourth Amendment sets forth “two matters that must be ‘particularly

described’ in the warrant: ‘the place to be searched’ and ‘the persons or things to

be seized.’” United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 1500

(2006) (brackets omitted).

The manifest purpose of this particularity requirement was to prevent

general searches. By limiting the authorization to search to the specific

areas and things for which there is probable cause to search, the requirement

ensures that the search will be carefully tailored to its justifications, and will

not take on the character of the wide-ranging exploratory searches the

Framers intended to prohibit. Thus, the scope of a lawful search is defined

by the object of the search and the places in which there is probable cause to

believe that it may be found.


32

Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016 (1987) (internal

quotation marks, citation and footnote omitted).

“Particularized descriptions serve the purposes of, first, ensuring that the

discretion of the officers executing the warrant is limited, and, second, informing

the person subject to the search of what items are authorized to be seized.” United

States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998) (internal quotation marks and

citations omitted). “Particularity means that the warrant must make clear to the

executing officer exactly what it is that he or she is authorized to search for and

seize.” SDI Future Health, Inc., 568 F.3d at 702 (quotation marks and citation

omitted). Where the description of the place to be searched is “broader than

appropriate” the search warrant’s validity “must be assessed on the basis of the

information that the officers disclosed, or had a duty to discover and disclose, to

the issuing Magistrate.” Garrison, 480 at 85, 107 S.Ct. at 1017 (footnote omitted).

In this case, the District Court judge authorized an overbroad search warrant that

allowed a search of the entire warehouse, rather than the space Sakuma occupied

as his residence because the multiunit character of the warehouse was not drawn to

the judge’s attention.

It is the reviewing court’s responsibility to ascertain whether the issuing

judge “had a substantial basis for concluding that probable cause existed to search”

the entire building. Alexander, 761 F.2d at 1301. “[A] warrant is valid when it


33

authorizes the search of a street address with several dwellings if the defendants

are in control of the whole premises, if the dwellings are occupied in common, or if

the entire property is suspect.” Id. (citation omitted, emphasis added). See also

United States v. Whitney, 633 F.2d 902, 907 n.3 (9th Cir. 1980) (warrant allowing

search of entire building when probable cause existed to search only one apartment

is void except in “situations where the premises are occupied in common rather

than individually, the defendant was in control of the whole premises, the entire

premises are suspect, or the multiunit character of the premises is not known or

apparent to the officers applying for and executing the warrant.”) None of these

exceptions apply in this case. Sakuma was not in control of the whole premises,

the entire premises were not suspect, the premises was not occupied in common,

and the multiunit character of the premises was known, or should have been

known, to the officers prior to executing the search warrant.

In Dozier, the reviewing court opined that “[t]he determination of whether

misstatements or omissions” made by affiants in the preparation of affidavits in

support of search warrants “are knowing or reckless” as opposed to being “merely

negligent is a factual inquiry” to be “guided by cases in which this court has found

reckless disregard by an affiant.” Dozier, 844 F.2d at 705 (citation omitted). The

Dozier court went on to cite United States v. Chesher, 678 F.2d 1353 (9th Cir.

1982) for the proposition that reckless disregard was established where the affiant


34

had “conduct[ed] an investigation for some time which should have apprised him

that [the statement in the affidavit] was untrue.” Id. at 705.

The warehouse affidavit for search warrant contains information that was

designed to mislead the issuing magistrate.4 Vol. 1 ER at 117-141. Officer

Jackson started his affidavit by claiming to have relied on information regarding

purchases of alleged illicit substances by CI #1 that occurred up to seventeen

months earlier. Vol. 1 ER at 119. Although CI #1 appeared willing to purchase a

quantity of purported methamphetamine from Sakuma on behalf of the Hawaii

County Police, this purchase never materialized. Vol. 1 ER at 121.

The affidavit for search warrant further alleges that approximately five

months prior to the execution of the warehouse search warrant, Officer Jackson

met with CI #1 and confirmed the information CI #1 had provided about activities

that occurred up to a year earlier. Vol. 1 ER at 121. CI #1 claimed that Sakuma

told him that he had access to all units within the warehouse, except one. Vol. 1

ER at 121. The affidavit goes on to state that Sakuma had been “a person of

4 The affidavit to the warehouse search warrant contains several other errors, such

as in item number 7 of the description of the property to be seized it states “United

States Currency as documented in Exhibit ‘B’”. Vol. 1 ER at 118. Exhibit “B” is

the Goggle Map. Vol. 1 ER at 132. Also, Attachment 7 is referenced in the

statement incorporating the attachments as “Attachment(s) No(s): 4”. Vol. 1 ER at

118. And while the search warrant itself does not indicate a time in which the

search warrant may be executed, the affidavit requests that the search warrant may

be executed at any time of the day or night. Vol. 1 ER at 118, 116. These errors

were not specifically drawn to the trial court’s attention as the trial court preferred

to personally review the exhibits. Vol. 2 ER at318, 324, 399.


35

interest” to the Hawaii County police for approximately two years, and that several

unnamed “independent sources” had provided information that Sakuma possessed

large quantities of methamphetamine in a safe inside the warehouse; that Sakuma

had security cameras and police scanners within his upstairs unit; and, that Sakuma

sold methamphetamine day and night, using other individuals to deliver the

methamphetamine to various people. Vol. 1 ER at 121-122.

Under “probable cause’, the affidavit states that on November 14, 2011 CI

#2 was stopped by Hawaii County police after driving away from the warehouse.

Vol. 1 ER at 122-123. Search warrants for CI #2’s person and vehicle were

executed, which resulted in the discovery of illicit items. Vol. 1 ER at 122-124.

CI #2 was arrested and taken to the Kona Police Station were he agreed to give a

statement to Officer Jackson. Vol. 1 ER at 124. CI #2 allegedly stated that he

owed Sakuma $4,400.00 and that he was paying off the debt by delivering an

eighth of an ounce of methamphetamine, two times a day, for the last three months,

for which $100.00 per delivery would be deducted from the amount owed.5 Vol. 1

ER at 124-125. CI #2 stated that within the last month he had observed Sakuma

with a large quantity of “ice”. Vol. 1 ER at 125. The location of this observation

was omitted from the affidavit. Vol. 1 ER at 125. Finally, CI #2 claimed that, just

5 At this rate CI #2 would have been able to pay $18,000 toward his $4,400 debt.

(3 months = 90 days; 2 deliveries per day at $100 per delivery = $200 per day;

$200 x 90 days = $18,000.00).


36

prior to be stopped and arrested, Sakuma came from his upstairs unit and gave CI

#2 a packet containing “Ice.” Vol. 1 ER at 125.

As to the building description, the affidavit noted that it is a cream colored

metal structure, enclosed within a chain link fence, and on “the west side” of the

warehouse there is a John Deere sign located towards the top of the building. Vol.

1 ER at 125. The affidavit alludes to only one business, D & M Hydraulics, being

located in the warehouse. Vol. 1 ER at 119, 125. There is a Google Map

photograph of the warehouse that features a “D & M” sign affixed to the chain link

fence and a print-out from the Hawaii County Real Property Tax Office showing

the tax map key, address and owner of the warehouse. Vol. 1 ER at 132, 137.

There were at least five different businesses housed in the warehouse; six if you

include the building owner’s office. Vol. 2 ER at 336, 361, 369.

There is no information from which the District Court judge could conclude

that CI #1 and the “several independent sources” were reliable informants with a

current basis of knowledge for making their accusatory statements. The

information was unsubstantiated and did not provide a substantial basis from which

the District Court judge could make a probable cause determination. Under a

totality of the circumstances analysis, “an informant’s ‘veracity,’ ‘reliability’ and

‘basis of knowledge’ are all highly relevant in determining the value” of


37

information being provided for the lower court’s probable cause determination.

Illinois v. Gates, 462 U.S. 213, 230-233, 103 S.Ct. 2317, 2328-29 (1983).

Conclusory statements, such as the affiant “has cause to suspect and does

believe” or “affiants have received reliable information from a credible person and

believe”, do not provide a substantial basis for determining probable cause. Id.,

462 U.S. at 239, 103 S.Ct. at 2332-33 (citations omitted). The magistrate’s “action

cannot be a mere ratification of the bare conclusions of others.” Id. In this case,

the affiant’s assertions that “[i]nformation has been received from several

independent sources that” and “information obtained stated that” are mere

conclusory statements that lend no support to a probable cause determination. Vol.

1 ER at 121-122.

Furthermore, with Sakuma being a person of interest to the Hawaii Country

police for approximately two years, the warehouse being located across the street

from the Kailua-Kona Police Station, and with the warehouse objectively housing

at least one business open to the public, it would seem natural that police would

conduct an inspection of the interior of this very large building before proceeding

with a request to search the entire warehouse. The acknowledgment in the

affidavit, that Sakuma did not have access to every unit of the warehouse,

precludes an assumption that the entire location was suspect. Moreover, the

affidavit relates that the alleged methamphetamine sales took place in Sakuma’s


38

residence, or the alleged methamphetamine was retrieved from Sakuma’s

residence, not in the warehouse at-large. Vol. 1 ER at 120-121, 125.

At the suppression hearing, Officer Jackson testified that he was in contact

with the other businesses operating in the warehouse. Vol. 2 ER at 336-337. Yet

the fact that many different businesses with no apparent connection to drug

trafficking were housed in the warehouse was not brought to the attention of the

District Court judge. Instead, the affidavit attempts to lead the issuing court to the

conclusion that Sakuma had “access to the [sic] all units within the warehouse

except for one which was secured by the business owners.” Vol. 1 ER at 121. It can

be inferred that the business owners were D & M Hydraulics as the affidavit only

refers to this business as being “located within the building.” Vol. 1 ER at 119.

The Ninth Circuit Court of Appeals has concluded that:

Even if a warrant authorized the search of an entire premises containing

multiple units while reciting probable cause as to a portion of the premises

only, it does not follow either that the warrant is void or that the entire

search is unlawful. United States v. Whitney, 633 F.2d 902 (9th Cir. 1980),

cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981), stands

for this proposition. The general rule voiding the warrant for an undisclosed

multiunit structure, see United States v. Hinton, 219 F.2d 324 (7th Cir.

1955), does not apply if the defendant was in control of the whole premises

or they were occupied in common, if the entire premises were suspect, or if

the multiunit character of the premises was not known to the officers.

Whitney, 633 F.2d at 907 n.3.

United States v. Gilman, 684 F.2d 616, 618 (9th Cir. 1982).


39

Here, the warehouse search warrant must be deemed void as the District

Court judge was misled as to the multiunit occupancy of the warehouse; Sakuma

was not in control of the whole premises; the premises was not occupied in

common; the entire premises was not suspect; and the multiunit character of the

premises should have been known to the officers. The police officer who prepared

the affidavit had objectively verifiable facts from which it could be determined that

the object of the search was a multi-occupancy building.

While it may be argued that the Hawaii County Police officers ended up

only searching Sakuma’s residence, thus the “no harm no foul” rule should be

applied, let us not forget Ms. Kawamoto’s experience, which thankfully did not

turn into a tragic event. It was the lack of consideration given to innocent

members of the public and those other tenants of the warehouse, which this court

must take into consideration when deciding whether to endorse the reckless tactics

of the Hawaii County Police Department.




ITEMS TO BE SEIZED.

In this case, Exhibit “A”, which was to provide officers with a description of

“drug paraphernalia” subject to seizure, and “Exhibit “B”, which was alleged to

apprise officers of what “United States Currency” was subject to seizure were

entirely missing from the search warrant. Vol. 1 ER at 118. “An affidavit can cure


40

the overbreadth of a warrant if the affidavit is attached to and incorporated by

reference in the warrant.” Center Art Galleries-Hawaii v. United States, 875 F.2d

747, 750 (9th Cir. 1989) (overruled on other grounds by J.B. Manning Corp. v.

United States, 86 F.3d 926, 927 (9th Cir. 1996)) (internal quotation marks and

citation omitted). “[T]he possession of the affidavit when the officers conduct

their search, . . . , is evidence of good faith[.]” Luk, 859 F.2d at 677 (citing to

United States v. Crozier, 777 F.2d 1376, 1382 (9th Cir. 1985)).

At the hearing on Sakuma’s Motion to Suppress, no evidence was presented

from which it could be concluded that the affidavit in support of the warehouse

search warrant accompanied the search warrant itself. In fact, just the opposite is

true. Officer Jackson testified that Exhibit A, the statutory definition of drug

paraphernalia was attached to the affidavit, not the search warrant and therefore the

officers executing the search warrant were required to rely upon their training and

experience in determining what items of evidence qualified as drug paraphernalia

and therefore subject to seizure. Vol. 2 ER at 307-309.

Furthermore, in the portion of the warehouse search warrant that describes

the property subject to seizure, item number 7 states: “United States Currency as

documented in Exhibit ‘B’”. No evidence was submitted by the prosecution to

even suggest that the officers executing the search warrant read the search warrant

or questioned why no example of the United States Currency, in the form of


41

Exhibit “B”, or Exhibit “A” for that matter, was attached to the warrant. “The

government, not the defendant, bears the burden of proving that its agents’ reliance

upon the warrant was objectively reasonable.” United States v. Michaelian, 803

F.2d 1042, 1048 (9th Cir. 1986) (citation omitted).

“If a warrant fails for lack of particularity or specificity, it is simply

unconstitutional - - without regard to what actually occurred. Indeed, our past

holdings on particularity have always turned on the language contained in the

warrant - - not on what was actually seized.” Hotal, 143 F.3d at 1227. The search

warrant in this case, due to the absence of Exhibit “A” and Exhibit “B”, failed to

provide appropriate guidance to the officers executing the warrant as to what items

were subject to seizure.

D. THE GOOD FAITH EXCEPTION DOES NOT

APPLY TO THE FACTS OF THIS CASE.

In the instant matter, the trial court found “that the good faith exception

applie[d] to any deficiency in the warrant’s description of the place to be searched

and/or the items to be seized[.]” Vol. 1 ER at 22.

“The inquiry mandated in connection with the good faith exception focuses

exclusively on whether there was an objectively reasonable basis for the mistaken

belief of the executing officers that the warrant was valid.” Towne, 997 F.2d at

549 (internal quotation marks, brackets and citation omitted).


42

There are four circumstances in which the good faith exception does

not apply because reliance is per se unreasonable: (i) where an affiant

misleads the issuing magistrate or judge by making a false statement or

recklessly disregarding the truth in making a statement; (ii) where the

magistrate or judge wholly abandons her judicial role in approving the

warrant, acting only as a ‘rubber stamp’ to the warrant application rather

than as a neutral and detached official; (iii) where the warrant is facially

deficient in detail as to the place to be searched or the things to be found that

the officers could not reasonably presume it to be valid; or (iv) where the

affidavit upon which the warrant is based is so lacking in indicia of probable

cause that no reasonable officer could rely upon it in good faith.

United States v. Crews, 502 F.3d 1130, 1136 (9th Cir. 2007) (citing Leon, 468 U.S.

at 923-26, 104 S. Ct. at 3421-22).

As set forth above in greater detail, each of the good faith exceptions was

rebutted by Sakuma making the trial court’s reliance on these exceptions as the

basis of denying the Motion to Suppress erroneous. The affiant misled the issuing

judge by failing to adequately disclose the multiunit character of the warehouse.

The issuing judge failed to adequately review the search warrant and affidavit with

an eye on detail and accepted conclusory statements and stale, unsubstantiated

information as substantive support for the probable cause determination. Both

Exhibit “A” and Exhibit “B” were missing from the search warrant. There was no

proof that anyone responsible for executing the search warrant noticed or inquired

about the missing exhibits, which supports the conclusion that no one even read the

search warrant before executing it. While Exhibit “B” attached to the affidavit in

support of the search warrant is actually a copy of the Goggle Map, one would


43

expect at least one member of the team assigned to execute the search warrant to

inquire whether the missing Exhibit “B” was a list of currency with specific serial

numbers. Apparently no one, including the issuing judge, questioned this anomaly.

Based upon the totality of the circumstances, the evidence suggests that the

negligent and reckless errors by the Hawaii County Police Department in this case

were not the result of an isolated incident. The preparation and execution of the

warehouse, computer and storage unit search warrants shows a lack of respect for

the Fourth Amendment oath or affirmation requirement. The good faith exception

does not apply to the facts of this case. It is necessary for the exclusionary rule be

applied as a deterrent to future police misconduct.

CONCLUSION

Based on the forgoing, Sakuma respectfully requests that this Court reverse

his conviction and remand this case to the trial court for entry of an order granting

suppression of the evidence recovered pursuant to unlawfully obtained search

warrant and suppress the fruits of the tainted evidence, or grant such other relief as

the Court deems just.

Dated at Honolulu, Hawaii: October 8, 2013.

Respectfully submitted,

/s/ Michael J. Park

MICHAEL J. PARK


Michael Sakuma


44

ADDENDUM TO BRIEF

Constitutional Provisions, Statutes, and Rules

TABLE OF CONTENTS

AUTHORITIES PAGE NO.

United States Constitution

Fourth Amendment .......................................................................................................45

United States Code (2011 ed.)

18 USC § 3231 ...............................................................................................................45

21 USC § 841(a) - (b) ............................................................................................ 45-52

21 USC § 846 .................................................................................................................53

28 USC § 1291 ...............................................................................................................53

Federal Rules of Appellate Procedure (2013 ed.)

Rule 4(b) ..........................................................................................................................53

Federal Rules of Criminal Procedure (2011 ed.)

Rule 41 ....................................................................................................................... 53-58


45

Fourth Amendment to the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

United States Code (2011 ed.)

18 USC § 3231. District courts

The district courts of the United States shall have original jurisdiction, exclusive of

the courts of the States, of all offenses against the laws of the United States.

Nothing in this title shall be held to take away or impair the jurisdiction of the

courts of the several States under the laws thereof.

Title 21 USC § 841(a) and (b)

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person

knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or

dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any

person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving—

(i) 1 kilogram or more of a mixture or substance containing a

detectable amount of heroin;


46

(ii) 5 kilograms or more of a mixture or substance containing a

detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves

from which cocaine, ecgonine, and derivatives of ecgonine or

their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of

isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of

isomers; or

(IV) any compound, mixture, or preparation which contains any

quantity of any of the substances referred to in subclauses (I)

through (III);

(iii) 280 grams or more of a mixture or substance described in clause

(ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more

of a mixture or substance containing a detectable amount of

phencyclidine (PCP);

(v) 10 grams or more of a mixture or substance containing a

detectable amount of lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or substance containing a

detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl

] propanamide or 100 grams or more of a mixture or substance

containing a detectable amount of any analogue of N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture or substance containing a

detectable amount of marihuana, or 1,000 or more marihuana plants

regardless of weight; or

(viii) 50 grams or more of methamphetamine, its salts, isomers, and

salts of its isomers or 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less


47

than 10 years or more than life and if death or serious bodily injury results from the

use of such substance shall be not less than 20 years or more than life, a fine not to

exceed the greater of that authorized in accordance with the provisions of title 18

or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is

other than an individual, or both. If any person commits such a violation after a

prior conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 20 years and not

more than life imprisonment and if death or serious bodily injury results from the

use of such substance shall be sentenced to life imprisonment, a fine not to exceed

the greater of twice that authorized in accordance with the provisions of title 18 or

$20,000,000 if the defendant is an individual or $75,000,000 if the defendant is

other than an individual, or both. If any person commits a violation of this

subparagraph or of section 849, 859, 860, or 861 of this title after two or more

prior convictions for a felony drug offense have become final, such person shall be

sentenced to a mandatory term of life imprisonment without release and fined in

accordance with the preceding sentence. Notwithstanding section 3583 of title 18,

any sentence under this subparagraph shall, in the absence of such a prior

conviction, impose a term of supervised release of at least 5 years in addition to

such term of imprisonment and shall, if there was such a prior conviction, impose a

term of supervised release of at least 10 years in addition to such term of

imprisonment. Notwithstanding any other provision of law, the court shall not

place on probation or suspend the sentence of any person sentenced under this

subparagraph. No person sentenced under this subparagraph shall be eligible for

parole during the term of imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section involving—

(i) 100 grams or more of a mixture or substance containing a

detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance containing a

detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves

from which cocaine, ecgonine, and derivatives of ecgonine or

their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of

isomers;


48

(III) ecgonine, its derivatives, their salts, isomers, and salts of

isomers; or

(IV) any compound, mixture, or preparation which contains any

quantity of any of the substances referred to in subclauses (I)

through (III);

(iii) 28 grams or more of a mixture or substance described in clause

(ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more

of a mixture or substance containing a detectable amount of

phencyclidine (PCP);

(v) 1 gram or more of a mixture or substance containing a detectable

amount of lysergic acid diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance containing a

detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl

] propanamide or 10 grams or more of a mixture or substance

containing a detectable amount of any analogue of N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or substance containing a

detectable amount of marihuana, or 100 or more marihuana plants

regardless of weight; or

(viii) 5 grams or more of methamphetamine, its salts, isomers, and

salts of its isomers or 50 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less

than 5 years and not more than 40 years and if death or serious bodily injury results

from the use of such substance shall be not less than 20 years or more than life, a

fine not to exceed the greater of that authorized in accordance with the provisions

of title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the

defendant is other than an individual, or both. If any person commits such a

violation after a prior conviction for a felony drug offense has become final, such

person shall be sentenced to a term of imprisonment which may not be less than 10

years and not more than life imprisonment and if death or serious bodily injury

results from the use of such substance shall be sentenced to life imprisonment, a


49

fine not to exceed the greater of twice that authorized in accordance with the

provisions of title 18 or $8,000,000 if the defendant is an individual or $50,000,000

if the defendant is other than an individual, or both. Notwithstanding section 3583

of title 18, any sentence imposed under this subparagraph shall, in the absence of

such a prior conviction, include a term of supervised release of at least 4 years in

addition to such term of imprisonment and shall, if there was such a prior

conviction, include a term of supervised release of at least 8 years in addition to

such term of imprisonment. Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of any person sentenced under

this subparagraph. No person sentenced under this subparagraph shall be eligible

for parole during the term of imprisonment imposed therein.

(C) In the case of a controlled substance in schedule I or II, gamma

hydroxybutyric acid (including when scheduled as an approved drug product

for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid

Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam,

except as provided in subparagraphs (A), (B), and (D), such person shall be

sentenced to a term of imprisonment of not more than 20 years and if death

or serious bodily injury results from the use of such substance shall be

sentenced to a term of imprisonment of not less than twenty years or more

than life, a fine not to exceed the greater of that authorized in accordance

with the provisions of title 18 or $1,000,000 if the defendant is an individual

or $5,000,000 if the defendant is other than an individual, or both. If any

person commits such a violation after a prior conviction for a felony drug

offense has become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years and if death or serious bodily injury

results from the use of such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of twice that authorized in

accordance with the provisions of title 18 or $2,000,000 if the defendant is

an individual or $10,000,000 if the defendant is other than an individual, or

both. Notwithstanding section 3583 of title 18, any sentence imposing a term

of imprisonment under this paragraph shall, in the absence of such a prior

conviction, impose a term of supervised release of at least 3 years in addition

to such term of imprisonment and shall, if there was such a prior conviction,

impose a term of supervised release of at least 6 years in addition to such

term of imprisonment. Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of any person sentenced

under the provisions of this subparagraph which provide for a mandatory

term of imprisonment if death or serious bodily injury results, nor shall a

person so sentenced be eligible for parole during the term of such a sentence.


50

(D) In the case of less than 50 kilograms of marihuana, except in the case of

50 or more marihuana plants regardless of weight, 10 kilograms of hashish,

or one kilogram of hashish oil, such person shall, except as provided in

paragraphs (4) and (5) of this subsection, be sentenced to a term of

imprisonment of not more than 5 years, a fine not to exceed the greater of

that authorized in accordance with the provisions of title 18 or $250,000 if

the defendant is an individual or $1,000,000 if the defendant is other than an

individual, or both. If any person commits such a violation after a prior

conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment of not more than 10 years, a fine not to

exceed the greater of twice that authorized in accordance with the provisions

of title 18 or $500,000 if the defendant is an individual or $2,000,000 if the

defendant is other than an individual, or both. Notwithstanding section 3583

of title 18, any sentence imposing a term of imprisonment under this

paragraph shall, in the absence of such a prior conviction, impose a term of

supervised release of at least 2 years in addition to such term of

imprisonment and shall, if there was such a prior conviction, impose a term

of supervised release of at least 4 years in addition to such term of

imprisonment.

(E) (i) Except as provided in subparagraphs (C) and (D), in the case of

any controlled substance in schedule III, such person shall be

sentenced to a term of imprisonment of not more than 10 years and if

death or serious bodily injury results from the use of such substance

shall be sentenced to a term of imprisonment of not more than 15

years, a fine not to exceed the greater of that authorized in accordance

with the provisions of title 18 or $500,000 if the defendant is an

individual or $2,500,000 if the defendant is other than an individual,

or both.

(ii) If any person commits such a violation after a prior conviction for

a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment of not more than 20 years and if

death or serious bodily injury results from the use of such substance

shall be sentenced to a term of imprisonment of not more than 30

years, a fine not to exceed the greater of twice that authorized in

accordance with the provisions of title 18 or $1,000,000 if the

defendant is an individual or $5,000,000 if the defendant is other than

an individual, or both.


51

(iii) Any sentence imposing a term of imprisonment under this

subparagraph shall, in the absence of such a prior conviction, impose

a term of supervised release of at least 2 years in addition to such term

of imprisonment and shall, if there was such a prior conviction,

impose a term of supervised release of at least 4 years in addition to

such term of imprisonment.

(2) In the case of a controlled substance in schedule IV, such person shall be

sentenced to a term of imprisonment of not more than 5 years, a fine not to

exceed the greater of that authorized in accordance with the provisions of

title 18 or $250,000 if the defendant is an individual or $1,000,000 if the


violation after a prior conviction for a felony drug offense has become final,

such person shall be sentenced to a term of imprisonment of not more than

10 years, a fine not to exceed the greater of twice that authorized in

accordance with the provisions of title 18 or $500,000 if the defendant is an

individual or $2,000,000 if the defendant is other than an individual, or both.

Any sentence imposing a term of imprisonment under this paragraph shall,

in the absence of such a prior conviction, impose a term of supervised

release of at least one year in addition to such term of imprisonment and

shall, if there was such a prior conviction, impose a term of supervised

release of at least 2 years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule V, such person shall be

sentenced to a term of imprisonment of not more than one year, a fine not to

exceed the greater of that authorized in accordance with the provisions of

title 18 or $100,000 if the defendant is an individual or $250,000 if the


violation after a prior conviction for a felony drug offense has become final,

such person shall be sentenced to a term of imprisonment of not more than 4

years, a fine not to exceed the greater of twice that authorized in accordance

with the provisions of title 18 or $200,000 if the defendant is an individual

or $500,000 if the defendant is other than an individual, or both. Any

sentence imposing a term of imprisonment under this paragraph may, if

there was a prior conviction, impose a term of supervised release of not

more than 1 year, in addition to such term of imprisonment.

(4) Notwithstanding paragraph (1)(D) of this subsection, any person who

violates subsection (a) of this section by distributing a small amount of

marihuana for no remuneration shall be treated as provided in section 844 of

this title and section 3607 of title 18.


52

(5) Any person who violates subsection (a) of this section by cultivating or

manufacturing a controlled substance on Federal property shall be

imprisoned as provided in this subsection and shall be fined any amount not

to exceed—

(A) the amount authorized in accordance with this section;

(B) the amount authorized in accordance with the provisions of title

18;

(C) $500,000 if the defendant is an individual; or

(D) $1,000,000 if the defendant is other than an individual;

or both.

(6) Any person who violates subsection (a) of this section, or attempts to do

so, and knowingly or intentionally uses a poison, chemical, or other

hazardous substance on Federal land, and, by such use—

(A) creates a serious hazard to humans, wildlife, or domestic animals,

(B) degrades or harms the environment or natural resources, or

(C) pollutes an aquifer, spring, stream, river, or body of water,

shall be fined in accordance with title 18 or imprisoned not more than five years, or

both.

(7) Penalties for distribution.—

(A) In general.—Whoever, with intent to commit a crime of violence,

as defined in section 16 of title 18 (including rape), against an

individual, violates subsection (a) of this section by distributing a

controlled substance or controlled substance analogue to that

individual without that individual's knowledge, shall be imprisoned

not more than 20 years and fined in accordance with title 18.

(B) Definition.—For purposes of this paragraph, the term “without

that individual's knowledge” means that the individual is unaware that

a substance with the ability to alter that individual's ability to appraise

conduct or to decline participation in or communicate unwillingness

to participate in conduct is administered to the individual.


53

21 USC § 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the attempt or conspiracy.

28 USC § 1291. Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for the

Federal Circuit) shall have jurisdiction of appeals from all final decisions of the

district courts of the United States, the United States District Court for the District

of the Canal Zone, the District Court of Guam, and the District Court of the Virgin

Islands, except where a direct review may be had in the Supreme Court. The

jurisdiction of the United States Court of Appeals for the Federal Circuit shall be

limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this

title.

Federal Rules of Appellate Procedure (2013 ed.)

Rule 4(b). Appeal in a Criminal Case

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal must be filed in the

district court within 14 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be

filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.


54

Federal Rules of Criminal Procedure (2011 ed.)

Rule 41. Search and Seizure

(a) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating search or seizure,

or the issuance and execution of a search warrant in special circumstances.

(2) Definitions. The following definitions apply under this rule:

(A) ‘‘Property’’ includes documents, books, papers, any other

tangible objects, and information.

(B) ‘‘Daytime’’ means the hours between 6:00 a.m. and 10:00 p.m.

according to local time.

(C) ‘‘Federal law enforcement officer’’ means a government agent

(other than an attorney for the government) who is engaged in

enforcing the criminal laws and is within any category of officers

authorized by the Attorney General to request a search warrant.

(D) ‘‘Domestic terrorism’’ and ‘‘international terrorism’’ have the

meanings set out in 18 U.S.C. § 2331.

(E) ‘‘Tracking device’’ has the meaning set out in 18 U.S.C. §

3117(b).

(b) Authority to Issue a Warrant. At the request of a federal law enforcement

officer or an attorney for the government:

(1) a magistrate judge with authority in the district—or if none is reasonably

available, a judge of a state court of record in the district—has authority to

issue a warrant to search for and seize a person or property located within

the district;

(2) a magistrate judge with authority in the district has authority to issue a

warrant for a person or property outside the district if the person or property

is located within the district when the warrant is issued but might move or be

moved outside the district before the warrant is executed;


55

(3) a magistrate judge—in an investigation of domestic terrorism or

international terrorism—with authority in any district in which activities

related to the terrorism may have occurred has authority to issue a warrant

for a person or property within or outside that district;

(4) a magistrate judge with authority in the district has authority to issue a

warrant to install within the district a tracking device; the warrant may

authorize use of the device to track the movement of a person or property

located within the district, outside the district, or both; and

(5) a magistrate judge having authority in any district where activities related

to the crime may have occurred, or in the District of Columbia, may issue a

warrant for property that is located outside the jurisdiction of any state or

district, but within any of the following:

(A) a United States territory, possession, or commonwealth;

(B) the premises—no matter who owns them—of a United States

diplomatic or consular mission in a foreign state, including any

appurtenant building, part of a building, or land used for the mission’s

purposes; or

(C) a residence and any appurtenant land owned or leased by the

United States and used by United States personnel assigned to a

United States diplomatic or consular mission in a foreign state.

(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for

any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally possessed;

(3) property designed for use, intended for use, or used in committing a

crime; or

(4) a person to be arrested or a person who is unlawfully restrained.

(d) Obtaining a Warrant.


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(1) In General. After receiving an affidavit or other information, a magistrate

judge—or if authorized by Rule 41(b), a judge of a state court of record—

must issue the warrant if there is probable cause to search for and seize a

person or property or to install and use a tracking device.

(2) Requesting a Warrant in the Presence of a Judge.

(A) Warrant on an Affidavit. When a federal law enforcement officer

or an attorney for the government presents an affidavit in support of a

warrant, the judge may require the affiant to appear personally and

may examine under oath the affiant and any witness the affiant

produces.

(B) Warrant on Sworn Testimony. The judge may wholly or partially

dispense with a written affidavit and base a warrant on sworn

testimony if doing so is reasonable under the circumstances.

(C) Recording Testimony. Testimony taken in support of a warrant

must be recorded by a court reporter or by a suitable recording device,

and the judge must file the transcript or recording with the clerk,

along with any affidavit.

(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means.

In accordance with Rule 4.1, a magistrate judge may issue a warrant based

on information communicated by telephone or other reliable electronic

means.

(e) Issuing the Warrant.

(1) In General. The magistrate judge or a judge of a state court of record

must issue the warrant to an officer authorized to execute it.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property.

Except for a tracking-device warrant, the warrant must identify the

person or property to be searched, identify any person or property to

be seized, and designate the magistrate judge to whom it must be

returned. The warrant must command the officer to:


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(i) execute the warrant within a specified time no longer than 14

days;

(ii) execute the warrant during the daytime, unless the judge for

good cause expressly authorizes execution at another time; and

(iii) return the warrant to the magistrate judge designated in the

warrant.

(B) Warrant Seeking Electronically Stored Information. A warrant

under Rule 41(e)(2)(A) may authorize the seizure of electronic storage

media or the seizure or copying of electronically stored information.

Unless otherwise specified, the warrant authorizes a later review of

the media or information consistent with the warrant. The time for

executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the

seizure or on-site copying of the media or information, and not to any

later off-site copying or review.

(C) Warrant for a Tracking Device. A tracking-device warrant must

identify the person or property to be tracked, designate the magistrate

judge to whom it must be returned, and specify a reasonable length of

time that the device may be used. The time must not exceed 45 days

from the date the warrant was issued. The court may, for good cause,

grant one or more extensions for a reasonable period not to exceed 45

days each. The warrant must command the officer to:

(i) complete any installation authorized by the warrant within a

specified time no longer than 10 days;

(ii) perform any installation authorized by the warrant during

the daytime, unless the judge for good cause expressly

authorizes installation at another time; and

(iii) return the warrant to the judge designated in the warrant.

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

(A) Noting the Time. The officer executing the warrant must enter on

it the exact date and time it was executed.


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(B) Inventory. An officer present during the execution of the warrant

must prepare and verify an inventory of any property seized. The

officer must do so in the presence of another officer and the person

from whom, or from whose premises, the property was taken. If either

one is not present, the officer must prepare and verify the inventory in

the presence of at least one other credible person. In a case involving

the seizure of electronic storage media or the seizure or copying of

electronically stored information, the inventory may be limited to

describing the physical storage media that were seized or copied. The

officer may retain a copy of the electronically stored information that

was seized or copied.

(C) Receipt. The officer executing the warrant must give a copy of the

warrant and a receipt for the property taken to the person from whom,

or from whose premises, the property was taken or leave a copy of the

warrant and receipt at the place where the officer took the property.

(D) Return. The officer executing the warrant must promptly return

it—together with a copy of the inventory—to the magistrate judge

designated on the warrant. The officer may do so by reliable

electronic means. The judge must, on request, give a copy of the

inventory to the person from whom, or from whose premises, the

property was taken and to the applicant for the warrant.

(2) Warrant for a Tracking Device.

(A) Noting the Time. The officer executing a tracking-device warrant

must enter on it the exact date and time the device was installed and

the period during which it was used.

(B) Return. Within 10 days after the use of the tracking device has

ended, the officer executing the warrant must return it to the judge

designated in the warrant. The officer may do so by reliable electronic

means.

(C) Service. Within 10 days after the use of the tracking device has

ended, the officer executing a tracking-device warrant must serve a

copy of the warrant on the person who was tracked or whose property

was tracked. Service may be accomplished by delivering a copy to the


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person who, or whose property, was tracked; or by leaving a copy at

the person’s residence or usual place of abode with an individual of

suitable age and discretion who resides at that location and by mailing

a copy to the person’s last known address. Upon request of the

government, the judge may delay notice as provided in Rule 41(f)(3).

(3) Delayed Notice. Upon the government’s request, a magistrate judge—or

if authorized by Rule 41(b), a judge of a state court of record—may delay

any notice required by this rule if the delay is authorized by statute.

(g) Motion to Return Property. A person aggrieved by an unlawful search and

seizure of property or by the deprivation of property may move for the property’s

return. The motion must be filed in the district where the property was seized. The

court must receive evidence on any factual issue necessary to decide the motion. If

it grants the motion, the court must return the property to the movant, but may

impose reasonable conditions to protect access to the property and its use in later

proceedings.

(h) Motion to Suppress. A defendant may move to suppress evidence in the court

where the trial will occur, as Rule 12 provides.

Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is

returned must attach to the warrant a copy of the return, of the inventory, and of all

other related papers and must deliver them to the clerk in the district where the

property was seized.


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CERTIFICATE OF COMPLIANCE

I certify that:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:

This brief contains 10,775 words, excluding the parts of the brief

excluding the portions exempted by Fed. R. App. P. 32(a) (7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

This brief has been prepared in a proportionally spaced typeface using

Microsoft Office Word 2003 and 14-point font size Times New Roman type

style.

/s/ Michael J. Park

MICHAEL J. PARK


Michael Sakuma

Date: October 8, 2013

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Defendant-Appellant Michael

Sakuma is unaware of any related cases presently pending in this Court.


no. 13-10317 in the united states court of appeals for … · 8/10/2014 · case: 13-10317...

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