United States District Court, D. Colorado
RECOMMENDATION REGARDING DEFENDANT'S MOTION TO
P. Gallagher United States Magistrate Judge
matter comes before the Court on Defendant Bruce Holder's
motion to suppress (ECF #37),  Defendant's supplement
thereto (ECF #40), the Government's response (ECF #48),
Defendant's 2nd supplemental motion (ECF
#205), the Government's response (ECF #246), the
Defendant's memorandum and argument (ECF #282), and the
Government's argument (ECF #290). A motion hearing was
held 10/31/2019 and the transcript of that hearing is
lodged at ECF #278. Based on the unanimous consent of the
parties (ECF #14) the matter was referred to my jurisdiction
by the then Chief Judge (ECF #15). The Court has also
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. The Court specifically
references the property search warrant and affidavit (ECF
#205-1) and cell phone search warrant and affidavit (ECF
#205-2) throughout this recommendation.
moves to suppress the search of his residence on the basis
that: (1) the information contained in the application for
the search warrant was stale and thus not supported by
probable cause; (2) the search exceeded the scope of the
warrant; and (3) the warrant was executed in a reckless
manner. (4) Defendant moves to suppress the search of his
cell phone on the basis that the search was unreasonably
delayed. Finally, (5) Defendant moves to suppress the search
of an iPad on the basis that it was based on an invalid
“any and all warrant.”
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation.” United States Constitution
Amendment IV. The Supreme Court described the probable cause
inquiry as a “commonsense, practical question” to
be informed by the totality of the circumstances present in
any particular case. Illinois v. Gates, 103 S.Ct.
2317, 2328 (1983). “Probable cause to search cannot be
based on stale information that no longer suggests that the
items sought will be found in the place to be searched.
U.S. v. Mathis, 357 F.3d 1200, 1206-07
(10th Cir. 2004). “Whether information is
too stale to establish probable cause depends on the nature
of the criminal activity, the length of the activity, and the
nature of the property to be seized.” United States
v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990). Ongoing
and continuous activity makes the passage of time less
critical when judging the staleness of information upon which
a search warrant is based. See Id.
Bruce Holder's residence was searched on August 21, 2018
with authority granted by a warrant issued four days prior on
August 17, 2018 (ECF #205-1). The affidavit in support of the
warrant details an investigation which began in early 2018
after an overdose death in late 2017. (ECF #205, p 10). Law
enforcement contacted an individual named Z.G., who survived
death by overdose due to the administration of NARCAN (ECF
#205-1, p. 11). Z.G. identified the potential cause of his
overdose, little blue pills marked with an “M, ”
and began the trail of information which ultimately led to
Defendant Bruce Holder. Id.
terms of timing, Z.G. revealed that he had seen, on a summer
evening in 2017, Defendant Bruce Holder provide Chris
Huggett-Defendant Bruce Holder's nephew- with the pills.
Id. Huggett was the source of supply for Z.G. Z.G.
disclosed that he observed Huggett go to Defendant Bruce
Holder's residence for resupply of the pills and that
Huggett had received pills from Defendant Bruce Holder on at
least 10 occasions when Huggett needed more pills to
distribute. Id. Huggett was arrested in July 2018
and his phone was searched in early August (ECF #205-1, p.
13). The search of Huggett's phone revealed a December
2017 conversation between Huggett and an individual named
Colby-the topic of the conversation being the longing to
purchase drugs. Id. At the time of the conversation,
Huggett was apparently temporarily out of the wanted pills
and awaiting the return of Bruce (ECF #205-1, p. 14).
enforcement conducted a controlled purchase of the pills on
July 3, 2018. The events surrounding that purchase, as
detailed in the affidavit, indicate that Defendant Bruce
Holder supplied the pills to his daughter Lexus Holder, who
then supplied them to Jonathan Kees, who then sold them to
the CS. See affidavit (ECF #205-1, pp. 15-18).
Another individual identified Defendant Bruce Holder as
selling the pills from his home (the target residence) from
December 2017 through April 2018 on 8-10 different occasions
(ECF #205-1. P. 18)-on one occasion retrieving them from a
pill bottle in a coffee table in the home. The source, who
apparently had a falling out with the group when she refused
to go to Mexico to body-carry pills back to the United
States, also discussed being present when another individual,
Crystal Brickey, was having a discussion with Defendant Bruce
Holder about Brickey purchasing guns for Bruce Holder (ECF
#205-1, p. 19). Defendant Bruce Holder is a felon and cannot
legally possess a firearm. ATF records indicate that Brickey
purchased the handguns from a pawnshop in Grand Junction,
lending credibility to the source's information.
enforcement was able to verify the veracity of some
statements made by the source, particularly as to Defendant
Holder's multiple border crossings (ECF #205-1, p. 20).
Holder crossed the border back from Mexico in June 2018,
returning to the target residence. Id. A trash pull
was conducted on June 19, 2019-revealing what appeared to be
packaging for the blue pills at issue (ECF #205-1, pp.
21-22). The blue pill residue on the packaging from the trash
pull tested as fentanyl (ECF #205-1, p. 23).
enforcement interviewed Chris Huggett on July 18, 2018 (ECF
#205-1, p. 25). Huggett described Defendant Bruce
Holder's continuing involvement in distribution of the
blue fentanyl pills, the purchase of those pills in Mexico,
the transport of the pills to the United States, the storage
of the pills in the target residence, and the fact that pills
were present in the target residence as recently as
approximately July 4, 2018 (ECF #205-1, pp. 25-27). Huggett
also discussed the death of Tanner in May 2018-and that
Tanner was a downstream customer of Holder's pills
through Michael Bowen (ECF #205-1, p. 27).
Defendant Holder is suspected of continuous and ongoing drug
activity- purchase, possession, transport, and distribution.
Rather than being stale, the evidence in this case indicates
that Defendant was continually involved in each of these
activities. The case law firmly establishes that staleness is
dependent “on the nature of the criminal activity [and]
the length of the activity . . .” Mathis, 357
F.3d at 1207. Defendant's assertion that the facts in the
affidavit are too old to constitute probable cause is, at
best, based on the erroneous view that any supposed time
period between July 2018 and August 2018 operated as some
sort of cessation of activities. The continuous and ongoing
nature of the alleged crimes here completely belies that
Holder may not have come to the attention of law enforcement
until late 2017/early 2018 upon the overdose of an
individual, the investigation then goes back to document his
continual and lengthy involvement. Holder involved himself,
his family, and his residence over a twelve-month period.
Holder's involvement is documented by multiple sources
including observation, government records, a trash pull,
electronic records, and witness interviews. In light of the
nature of the activity, the length of the activity, and the
items sought, the Court finds that the information upon which
the warrant affidavit is based is not unconstitutionally
(not pertaining to the phone)
argues that the search exceeded the scope of the warrant
because the warrant did not “provide for the seizure of
any vehicles” (ECF #37, p. 6), because two vehicle
titles were seized, because $5000 ...