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United States v. Holder

United States District Court, D. Colorado

December 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRUCE HOLDER, Defendant.

          RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESS

          Gordon P. Gallagher United States Magistrate Judge

         This matter comes before the Court on Defendant Bruce Holder's motion to suppress (ECF #37), [1] 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[2] 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.[3] 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.

         Defendant 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.”

         Staleness

         “No 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.

         Defendant 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.

         In 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).

         Law 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. Id.

         Law 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).

         Law 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).

         Here, 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 assertion.

         While 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 stale.

         Scope (not pertaining to the phone)

         Defendant 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 ...


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