The opinion of the court was delivered by: J. Michael Seabright United States District Judge
) ORDER DENYING DEFENDANT ) MICHAEL SAKUMA'S MOTION ) TO SUPPRESS EVIDENCE ) OBTAINED FROM STATE COURT ) SEARCH WARRANTS EXECUTED ) BY HAWAII POLICE ) DEPARTMENT
ORDER DENYING DEFENDANT MICHAEL SAKUMA'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM STATE COURT SEARCH WARRANTS EXECUTED BY HAWAII POLICE DEPARTMENT
A January 12, 2012 Indictment charges Defendant Michael Sakuma ("Defendant") with possession with intent to distribute, and conspiracy to distribute and possess with intent to distribute, 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), & 841(b)(1)(A). These charges are in part the result of a November 15, 2011 search of Defendant's residence pursuant to a search warrant by the Hawaii County Police Department ("HCPD") where over seven pounds of methamphetamine were seized.
On August 31, 2012, Defendant filed a Motion to Suppress the evidence obtained from this search on the basis that both the warrant and the search were defective and therefore violated the Fourth Amendment. The government filed an Opposition on September 28, 2012, and the court held an evidentiary hearing on October 25, 2012. On November 13, 2012, the parties filed simultaneous supplemental briefing, and on November 19, 2012, the government filed an optional supplemental reply.
Based upon the court's consideration of the supporting, opposing, and supplemental memoranda, the arguments of counsel, the evidence admitted into the record, and the credibility of the witnesses testifying at the hearing, the court finds that the good faith exception applies 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. The court therefore DENIES the Motion to Suppress.
At the October 25, 2012 evidentiary hearing, the court admitted into evidence Government's Exhibits 1-3, 11, and 12, and Defendant's Exhibits 202, 203, 206, 209, 210, and 212. The court also received oral testimony from HCPD Officers Erich Jackson, Michael Abran, and Calvin Delaires, as well as from George Tamashiro, Christina Kawamoto, and Priscilla Basque. Based upon their demeanor and manner of testifying, the court finds the testimony of the officers, Tamashiro, and Kawamoto credible and their testimony to be consistent with the other evidence in the record. Further, although there were some minor differences in the officers' testimonies regarding execution of the search warrant, the inconsistencies do not call into question the officers' credibility and are ultimately not relevant in determining whether the search was valid. In comparison, based on her demeanor and manner of testifying, the court does not credit Priscilla Basque's testimony, who appeared primarily motivated to assist Defendant through any means possible.
Based on the credible testimony and evidence presented, the court finds the following facts by a preponderance of the evidence.
A. Application for Search Warrant
On November 15, 2011, Officer Jackson submitted a Hawaii County Affidavit for Search Warrant ("Affidavit") to search and seize from Defendant and his residence methamphetamine, drug related paraphernalia as defined by Hawaii Revised Statutes ("HRS") § 329-1, articles of personal property tending to establish the existence of a conspiracy to use, sell, and transport methamphetamine, and various other items. Gov't Ex. 11 at 117-18. The Affidavit was the result of information gathered from various third parties as well as from HCPD surveillance on Defendant's residence.
Under the title "Historical Information," the Affidavit recites that a third party, Donald Lewis, was arrested for drug-related offenses on February 8, 2011 and relayed to officers that he had purchased pound quantities of methamphetamine from Defendant on four separate occasions between June 2010 and February 6, 2011. Id. at 119-20. Lewis described that Defendant resides within a yellow warehouse with a John Deere sign on it on Queen Kaahumanu Highway in Kailua-Kona directly across from the Kona Police Station. Id. at 119. Lewis described that Defendant "has a studio style apartment on the second level which is secured by a door and a gold key locking mechanism," and that "there are three separate set[s] of stairs leading to the upper level of the warehouse." Id. Lewis further relayed that three of the methamphetamine transactions took place in Defendant's studio, and that he observed in the studio quantities of methamphetamine ranging from thirteen to eighteen pounds. Id. at 120. Finally, Lewis relayed that Defendant told him that "he has two safes within the building and that he has access to all units within the warehouse except for one which is secured by the business owners." Id. at 121. The Affidavit further states that Lewis' information was consistent with that "from several independent sources that Sakuma has in his possession more than seventeen (17) pounds of methamphetamine," id. at 121-22, and that Defendant kept methamphetamine "within a safe inside the warehouse." Id. at 122.
Under the title "Probable Cause," the Affidavit states that Officer Jackson executed search warrants for Jeffrey Cho and his vehicle after Cho was observed leaving Defendant's warehouse on November 14, 2011. Id. at 123. Officers seized 0.5 grams of marijuana, 3.9 grams of methamphetamine, and $1,590 in cash. Id. at 123-24. During his post-arrest interview, Cho stated that he owed Defendant $4,400, which he was paying off by delivering methamphetamine for Defendant, including the methamphetamine seized from Cho. Id. at 124-25. He explained that he had been making two deliveries per day for Defendant during the prior three months. Id. at 125. Cho further relayed his observation that during the prior month Defendant had a gallon size Ziploc bag completely filled with methamphetamine, and that Defendant had advised Cho that in the past he had in excess of seventeen pounds of methamphetamine. Id.
Under the title "Building Description," the Affidavit (1) describes that the warehouse is located at 74-592 A Hale Maka'i Place, Kailua-Kona Hawaii, (2) provides directions to the warehouse, and (3) attaches a Google map of the location. Id. at 125-26, 132. The Affidavit further describes that the warehouse is a cream colored metal structure enclosed with a gated chain link fence, and that it has a John Deere sign located towards the top of the building on its west side and a garage bay door with a D&M hydraulics sign. Id. at 125. Under the title "Hawaii Real Property Checks," the Affidavit asserts that a check of the Hawaii County Real Property Tax website identified the warehouse as having "a physical address of 74-592 A Hale Maka'i Place (formerly identified as 74-5223 Queen Kaahumanu Highway), Kailua-Kona HI,"*fn1 and is owned by Suzuko and George Tamashiro, AMFAC Distribution HI Inc., and the State of Hawaii. Id. at 126-27, 137. Officer Jackson testified that although he knew that there were several units within the warehouse, Defendant's specific space within the warehouse appeared to have had no official unit number.
Based on the Affidavit, Hawaii County District Judge Joseph P. Florendo approved the November 15, 2011 search warrant. The search warrant commands the HCPD to search:
A warehouse located at 74-592 A Hale Maka'i Place, Kailua-Kona, Hawai'i, 96740, occupied by Michael SAKUMA and Penny NOLAN; described as being a cream colored, metal structure; more particularly located by traveling east on Hale Maka'i Place from Queen Kaahumanu Highway, then making a right turn into the driveway leading to 74-592 A Hale Maka'i Place[.] The property located at 74-592 A Hale Maka'i Place, KailuaKona, HI 96740, is owned by two different owners, (1) Suzuko TAMASHIRO (2) George Y. TAMASHIRO. This inquiry also lists the property located at 74-592 A Hale Maka'i Place, Kailua-Kona, HI 96740, as Tax Map Key Number 740200180000; occupied by Michael SAKUMA, a 48 year-old male, with Date of Birth [REDACTED]- 1963, and having a Social Security Number with the last four numbers being 0192; to include but not limited to, all rooms and other parts therein, the surrounding grounds and any garages, storage rooms, outbuildings of any kind, vehicles, garbage cans, safety lock boxes, safes, and containers located within the property boundaries found under the control of Michael SAKUMA.
Officer Jackson testified that the search warrant authorized officers to search the entire warehouse as opposed to just Defendant's residence because numerous informants had told him that Defendant had full access within the warehouse.*fn2 Specifically, Officer Jackson was told that Defendant performed general maintenance for the warehouse and therefore had keys for all areas of the warehouse. Further, through surveillance Officer Jackson knew that Defendant was the only individual in the warehouse at night.
The warrant commands the HCPD to seize, among other things:
1. Methamphetamine and derivatives of same;
2. Drug related paraphernalia as defined by Hawaii Revised Statutes Section 329-1 of the Hawaii Revised Statutes, described in Exhibit A and attached hereto;
3. Articles of personal property tending to establish the existence of a conspiracy to use, sell, and transport methamphetamine including but not limited to personal telephone books, address books, telephone bills, papers, and papers containing lists of names, addresses and phone numbers of narcotics customers and suppliers, evidence of proceeds from sales of illegal drugs including but not limited to bank and financial statements such as deposit receipts and monthly statements, wire transfer receipts, and safe deposit box receipts; . .
Id. Although the warrant refers to an "Exhibit A" providing the definition of "drug related paraphernalia as defined by Hawaii Revised Statutes Section 329-1 of the Hawaii Revised Statutes," it was not attached to the warrant and instead was attached only to Officer Jackson's Affidavit.
C. The Search -- Initial Entry into Warehouse
Officer Jackson testified that although the HCPD does not usually execute a search warrant on the same day it issues, in this instance they decided to execute the warrant shortly after it was signed because Officer Jackson heard from informants that Defendant was preparing to move out of the warehouse. Thus, on the afternoon of November 15, 2011, Officer Jackson assembled a team of officers to execute the warrant.
The officers were divided into an entry team to secure the inside of the warehouse, and a perimeter team to secure the multiple exits of the warehouse. Upon arrival at the warehouse, officers in the entry team, dressed in raid vests with the word "POLICE" printed on them, formed a "stack" formation at a glass door on the middle side of the warehouse. See Gov't Exs. 1, 2. Although officers later learned that there were several entrances to Defendant's studio, informants had identified this particular glass door as the door that would allow direct access up to Defendant's studio on the second floor.
To the left of this glass door was another door, outlined in red, that led to a bathroom. As the entry team formed their "stack" formation with their weapons drawn, Christine Kawamoto, an office manager for one of the businesses in the warehouse, exited from the bathroom. Kawamoto testified that she had not heard the officers approach the building while she was in the bathroom and was therefore very scared when she saw them in close range with their weapons drawn. Officer Delares, who was several feet away from Kawamoto, testified that he was initially unsure whether Kawamoto was a threat and therefore pointed his gun at her chest and ordered her to put her hands up. Kawamoto complied with the instructions, and Officer Delares escorted her away from the warehouse to Officer Abron, who was part of the perimeter team. After she was escorted away, Kawamoto did not watch the officers enter the building and was (understandably) very scared during this entire interaction.
D. The Search -- Entry Into the Warehouse and Defendant's Residence
After the interaction with Kawamoto, the officers in their "stack" formation announced their presence. Officer Jackson testified that they knocked on the glass door and announced their presence continuously for a minute to a minute and a half, but received no response. Because the glass door was locked and had a metal handle that ran horizontally across the middle of the door, officers gained entry through an open window to the right of the door. Once in the building, all officers vocalized their presence for safety purposes and they proceeded down the hallway to another door.
Although the door at the end of the hallway had a punch lock on it, Officer Jackson was able to "yank" it open. Behind the door, officers found a stairway leading up to another door with another punch lock. Officers continued to announce their presence up the stairwell and then used a ram to open the door at the top of the stairwell. Behind this door was a corridor with glass doors to several rooms. Officers proceeded down the hallway (still announcing their presence), and came to another door with three gold locks on it.*fn3 Upon opening this door,*fn4 officers found Defendant vacuuming in the room.
Officers told Defendant that they were executing a search warrant, placed him on the ground, and handcuffed him. Officers then saw methamphetamine in plain view and therefore arrested Defendant, showed him the warrant, and walked him to the Kona Police Station across the street.
Officers proceeded with their search of Defendant's residence and found, among other things, a safe hidden behind a bookshelf and drywall which held methamphetamine. Although Officer Jackson believed the warrant was for the entire warehouse, he explained that they limited their search to Defendant's residence because they did not believe that Defendant would have hidden any contraband in areas that he could not control. Specifically, Officer Jackson explained that all of the locks on the doors and the hidden safe indicated that Defendant had "trust" issues such that he would keep items in his area only.
At some point during the afternoon, George Tamashiro heard that officers were executing a search warrant and went to the warehouse where he keeps an office. At the warehouse, Officer Jackson informed Tamashiro that they were searching Defendant's residence. Both Tamashiro and Officer Jackson testified that Tamashiro did not ask for a copy of the search warrant, and Officer Jackson did not provide him a ...