UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 James A. McDevitt United States Attorney Eastern District of Washington George J.C. Jacobs, III Assistant United States Attorney Post Office Box Spokane, WA - Telephone: (0 - UNITED STATES OF AMERICA, vs. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Plaintiff, DIXIE ELLEN RANDOCK, STEVEN KARL RANDOCK, SR., HEIDI KAE LORHAN, and ROBERTA LYNN MARKISHTUM, Defendants. Response in Opposition to Defendant s Motion to Suppress Evidence - 1 CR-0-0-LRS-1 CR-0-0-LRS- CR-0-0-LRS- CR-0-0-LRS- United States Response In Opposition To Defendant s Motion And Memorandum To Suppress Evidence Plaintiff United States of America, by and rough James A. McDevitt, United States Attorney for e Eastern District of Washington, and George J.C. Jacobs, III, Assistant United States Attorney for e Eastern District of Washington, hereby files its Response In Opposition To Defendants Motion to Suppress Evidence. The Defendants are asking e Court to adopt a eory of e Four Amendment akin to J.K. Rowling s Invisibility Cloak, to create at will a shield impenetrable to law enforcement view even in e most public places. However, e fabric of e Four Amendment does not stretch at far. The Defendants do not have an expectation of privacy in a hallway in a commercial office building at society would accept as reasonable. The boxes of documents were not in a storage room but were in e public hallway of a commercial office building at none of e Defendants owned. The Defendants also did not have e landlord s permission to leave e boxes in e hallway. Thus, e boxes were not

2 on e Defendants premises when ey were initially observed in plain view and subsequently seized pursuant to a search warrant. The agents did not conduct a warrantless search on March, 00, and e Magistrate s decision to issue a search warrant on March, 00, was not influenced by evidence derived by an illegal search. Many of e boxes did not have lids and e contents were in plain view to anyone who walked in e hallway. The boxes of documents were abandoned. The Defendants did not even discover at e boxes were missing from e hallway until seventy-six days after ey had been seized. The Defendants so relinquished eir interest in e property at ey no longer retained a reasonable expectation of privacy at e time of e search. The agent fully complied wi Rule 1(f( of e Federal Rules of Criminal Procedure and e four amendment by giving a copy of e warrant and e receipt to e person from whose premises e boxes were seized. There is no four amendment violation because e Defendants do not have a privacy right at society recognizes as reasonable. The agent acted in good fai and did not act wi intentional and deliberate disregard of Rule 1. The execution of e search warrant and e note ruse were two separate and distinct undertakings. The United States had important reasons for leaving e note after e search warrant had been executed. It wanted to determine if anyone would claim e boxes were eir property. It wanted to protect e anonymity of an ongoing investigation. It wanted to reveal e criminal design and to expose e illegal conspiracy. Courts have consistently upheld e employment of undercover ruses in bo investigating criminal activity and executing search warrants. See, e.g., Lewis v. United States, U.S. 0, 0-0 (; United States v. Alverez-Tejeda, F.d, 00 WL ( Cir. (Wash.. There is no reason for e Government to halt oer investigatory techniques when it obtains a warrant because ese techniques might reveal different information not available from a search warrant. Leaving a handwritten note in e public hallway Response in Opposition to Defendant s Motion to Suppress Evidence -

3 of a commercial office building was not an unconstitutional ruse. The Defendants motion to suppress should be denied. FACTUAL SETTING On March, 00, as part of an ongoing covert criminal investigation into a number of internet based virtual schools, ree United States Secret Service agents observed in plain view several open, unmarked, cardboard boxes which were at a ninety-degree angle along a wall in a public hallway at The Post Falls Professional Center located at 01East Seltice Way, Post Falls, Idaho. Wiout touching e contents, e agents observed at e cardboard boxes contained files, documents, and oer articles. See Affidavit of Senior Special Agent (SSA, John E. Neirinckx, United States Secret Service, In Re: Search of Property Described As The Hallway Wiin The Post Falls Professional Center Located At 01 East Seltice Way, Post Falls, Idaho (hereafter Neirinckx Affidavit. On March, 00, SSA Neirinckx interviewed Ray Guerra, e owner of The Post Falls Professional Center, regarding e cardboard boxes e agents had seen e previous day. Id. Mr. Guerra stated at he did not give any of e tenants in his building permission to store any articles in at hallway, and e hallway should remain clear of any obstructions. Id. Mr. Guerra also told SSA Neirinckx at e hallway was not part of e leased space of Suite B. Id. March, 00, The Day The Search Warrant Was Executed On The Hallway At The Post Falls Professional Center On March, 00, SSA Neirinckx flew to Boise, Idaho, and appeared before United States Magistrate Judge Mikel H. Williams to apply for a search warrant for items located in a hallway wiin e Post Falls Professional Center, 01 East Seltice Way, Post Falls, Idaho. The property to be searched is described as: The Post Falls Professional Center is a two-story business building wi basement. It is located on e corner of Seltice Way and Lincoln Street in Post Falls, Idaho. The building has gray siding and blue Response in Opposition to Defendant s Motion to Suppress Evidence -

4 trim, and faces sou toward Seltice Way (see attached photograph. The hallway to be searched in e aforementioned building is located in e basement and is adjacent to suite B. The hallway is to e West of suite B and shares a common wall wi Suite B. Attachment A to March, 00, Search Warrant. The list of items to be seized included: Papers, documents, notes, financial and business records, diplomas, school transcripts, correspondence in written form, and computer disks, contained in approximately boxes located in e... hallway, which are related to AEIT, A+ Institute and oer businesses affiliated wi Suite B, all of which is evidence of violations of Title, United States Code, Sections 1 and. Later at day, SSA Neirinckx flew back to Spokane, Washington, and en drove to Post Falls, Idaho, in order to execute e search warrant on e hallway in The Post Falls Professional Center. The building s owner was not present. Prior to executing e search warrant on his premises, SSA Neirinckx telephonically notified Mr. Guerra at he had obtained a search warrant for e hallway and at e Secret Service was going to execute e warrant at day. Pursuant to e warrant, federal agents seized eleven boxes of miscellaneous papers, documents, records, and twelve floppy diskettes from e hallway. After e agents had carried e boxes ey had seized from Mr. Guerra s hallway to a government vehicle in e parking lot of The Post Falls Professional Center, SSA Neirinckx telephonically contacted Mr. Guerra and told him exactly what e agents had just seized pursuant to e warrant. SSA Neirinckx also asked Mr. Guerra for directions to Mr. Guerra s residence so SSA Neirinckx could promptly give Mr. Guerra a copy of e search warrant and inventory. SSA Neirinckx en drove from e Post Falls Professional Center to Mr. Guerra s residence, gave Mr. Guerra a copy of e warrant and inventory, and proceeded to e Spokane Resident Office of e Secret Service, where e eleven boxes were secured in e Secret Service s evidence vault. Response in Opposition to Defendant s Motion to Suppress Evidence -

5 The Post Falls Professional Center Is A Commercial Office Building Not Owned By Any Of The Defendants The Post Falls Professional Center is not an apartment building. It is a commercial office building which contains numerous businesses at lease office space or suites located on ree different floors. See Diagrams (Exhibit. The public does not have to be buzzed in to enter e building. They can simply walk in. There is no security guard at e front entrance. There are no security cameras monitoring entry into e building. Once inside e building, a person has access to e businesses located on e ree floors simply by using one of e stairwells. One does not need a card key or oer security device to gain access to any of e floors or hallways. The Post Falls Professional Center is not owned by any of e Defendants. It is owned by Ray Guerra. Neirinckx Affidavit. Thus, e boxes were on property owned by Mr. Guerra. The large commercial sign outside 01 East Seltice Way advertises to e public at it is The Post Falls Professional Center. See Photograph (Exhibit. As of January, 00, e commercial sign advertised to e public at e following businesses leased office space at The Post Falls Professional Center: (1 Kevin E. Kimpton, Certified Public Accountant, Taxes / Accounting; ( Balanced Chiropractic & Sports Therapy; ( Real Estate / Ron Webster / GMAC; ( Rockwood Insurance Agency; ( Inland Empire Consultants; ( Dream Catcher Weddings; ( Big Mountain Accounting & Taxes; ( High Wing Construction; ( A.E.S. Inc. / an employment source; ( Idaho Crop Improvement Association; ( Nor Idaho Counseling Services; (1 Alternative Home Heal Care; and (1 Signal Point Advertising Graphics. Id. The commercial sign for The Post Falls Professional Center building also contained e following advertisement: For Leasing Information Id. Response in Opposition to Defendant s Motion to Suppress Evidence -

6 On August, 00, Defendant Steven K. Randock signed a Commercial Lease And Deposit Receipt Agreement on behalf of A+ Institute + Printing for e period August, 00, to February, 00, at The Post Falls Professional Center. Discovery (Exhibit. According to e terms of e Commercial Lease And Deposit Receipt Agreement, e only space at Defendant 1 Steven K. Randock rented from Mr. Guerra was Suite B. Id. The monly rent was $.00. The Commercial Lease Agreement does not bear e signatures of Defendants Dixie Ellen Randock, Heidi Kae Lorhan, or Roberta Lynn Markishtum on e Lessee lines; it only bears e handwritten entry A+ Institute + Printing and Steven Randock. Id. The Commercial Lease Agreement bears e signature of Mr. Guerra on e Lessor line. On February, 00, e Lessee, Defendant Steven K. Randock, Jr., and e Lessor, Mr. Guerra, renewed e commercial lease agreement for Suite B for an additional six mons, until August, 00. Discovery 000 (Exhibit. On August, 00, e parties renewed e commercial lease agreement for Suite B for an additional twelve mons, until August, 00. (Exhibit. Even ough Defendant Steven K. Randock, Sr. had signed a Commercial Lease Agreement to lease office space on behalf of A+ Institute + Printing during e period August, 00, and February, 00, at e Post Falls Professional Center, A+ Institute + Printing was not advertised on e large commercial sign outside e building. The Hallway Where The Boxes Were Located Is Not A Storage Area And The Defendants Did Not Have The Landlord s Permission To Leave Boxes There The public hallway where e cardboard boxes were observed is not a storage area. Neirinckx Affidavit. The Defendants did not have e landlord s permission to store boxes in e hallway. Neirinckx Affidavit. In addition to 1 There is a typographical error in e lease agreement; e actual suite rented by Defendant Steven K. Randock, Sr. during e relevant period is Suite B, not B. Response in Opposition to Defendant s Motion to Suppress Evidence -

7 numerous office suites which can be rented, The Post Falls Professional Center actually contains five secure storage rooms which businesses can rent for storage purposes. The Defendants did not rent any of e five secure storage rooms. However, e boxes observed by e Secret Service agents were not in ese secure storage rooms. They were in a hallway which was accessible on a daily basis to oer tenants as well as e public. The hallway was unmonitored. The Defendant did not have exclusive use of e hallway where e cardboard boxes were discovered by e Secret Service. At e time of e search warrant, e common hallway was also used by e Post Falls School District and a doctor s office which leased space in e building. The Defendants Took No Steps To Maintain A Privacy Interest The Defendants took no steps to maintain a privacy interest in e boxes. The boxes were not taped or secured shut and many of e boxes did not contain lids. There were no markings on e outside of e boxes to let someone know if ey were private property or even belonged to one of e businesses located in e building. The boxes did not contain any outer markings indicating at ey were e property of any of e Defendants or e tenant in Suite B. The boxes did not contain any do not remove or do not touch markings. Moreover, e contents of several of e boxes were observable to anyone who walked by em. The March, 00, Note Ruse Was A Separate And Distinct Action Conducted After The Search Warrant Was Executed On March, 00, shortly after e search warrant was executed, SSA Neirinckx posted a handwritten note on e wall above e area in e public hallway where e boxes had been seized. The note said: (Exhibit. Whoever left eir boxes of stuff in is hallway can look for it at e County Landfill. This is a hallway, not a dumpster!! Besides, e building management would probably agree at e boxes were a fire hazard and not just someing to trip over!! an Angry Tenant. Response in Opposition to Defendant s Motion to Suppress Evidence -

8 May, 00 - Defendant Markishtum Discovers The Boxes Are Not In The Hallway And Claims Her Employer, Defendant Steven K. Randock, Sr. Owns e Boxes Defendant Markishtum, who worked in Suite B, did not discover at e boxes were missing from e hallway until May, 00. ROI 0- (Exhibit. On May, 00, e Secret Service received a telephone call from Pam Leibel. ROI 0 (Exhibit. Ms. Leibel is an employee of High Wing Construction, anoer tenant who rented an office on e basement floor of Mr. Guerra s building. Id. Ms. Leibel told e Secret Service at earlier at day Defendant Markishtum asked her if she knew who may have taken e boxes from e hallway. Id. Defendant Markishtum told Ms. Leibel at e records belonged to Steve who is e owner of eir business. ROI 0 (Exhibit. LEGAL ARGUMENT Defendants Dixie Randock, Lorhan and Markishtum Do Not Have Standing To Challenge The Search Defendants Dixie Randock, Lorhan and Markishtum have not made a sufficient showing at eir legitimate or reasonable expectations of privacy were violated by a search of e boxes. In order to challenge a search on Four Amendment grounds, a defendant bears e burden of demonstrating at he or she had a legitimate expectation of privacy in e place searched. Rakas v. Illinois, U.S., (; United States v. Singleton, F.d ( Cir.. Four Amendment rights are personal rights and [a] person who is aggrieved by an illegal search and seizure only rough e introduction of damaging evidence secured by a search of a ird person s premises or property has not had any of his Four Amendment rights infringed. Rakas, U.S. at. Under is rule, coconspirators and codefendants have been accorded no special standing. Alderman v. United States, U.S. 1, (. In United States v. Lingenfelter, F.d ( Cir., two defendants moved to suppress evidence at was obtained during e search of a warehouse leased by Response in Opposition to Defendant s Motion to Suppress Evidence -

9 a coconspirator. The district court had concluded at neier defendant had standing to contest e search of e warehouse. Lingenfelter, F.d at. This Circuit affirmed, finding at neier defendant made a sufficient showing at his legitimate or reasonable expectation of privacy were violated by e search of e warehouse. Lingenfelter, F.d at. The Defendants Do Not Have A Legitimate Expectation Of Privacy In The Hallway Of A Commercial Office Building They Do Not Own The Defendants do not have a legitimate expectation of privacy in e public hallway of a commercial office building ey do not own. This Circuit has previously stated at [t]he hallway of an apartment building, as wi e reshold of one s dwelling, is a public place for purposes of interpreting e Four Amendment. United States v. Calhoun, F.d, 10 ( Cir., cert. denied, U.S. ( citing United States v. Santana, U.S. (. In similar fashion, e hallway of a commercial office building, wi multiple tenants, is a public place for purposes of e Four Amendment. The Four Amendment prohibits unreasonable searches and seizures in ose areas in which a person has a reasonable expectation of privacy. Katz v. United States, U.S., 0 ( (Harlan, J., concurring. One has a reasonable expectation of privacy if one has an actual, subjective expectation of privacy and if e expectation is one at society is prepared to recognize as reasonable. Id. at 1. A person s reasonable expectation of privacy may differ based upon e location of e search. See United States v. Gonzalez, F.d, ( Cir. 00. A lesser expectation of privacy exists in a commercial area an in a residential area. Id. (citing Minnesota v. Carter, U.S., 0 (. Indeed, [a]n individual whose presence on anoer s premises is purely commercial in nature... has no legitimate expectation of privacy in at location. Gonzalez, F.d at (quoting United States v. Gamez-Orduno, F.d, ( Cir. 000; New York v. Burger, U.S. 1, 00 ( (e Response in Opposition to Defendant s Motion to Suppress Evidence -

10 expectation of privacy in commercial premises... is different from, and indeed less an, a similar expectation in an individual s home. See also United States v. Paopao, F.d 0, ( Cir. 00. The Defendants claim at ey believed at e public hallway outside eir office suite was space for eir private storage. Def s Motion, p.. The Court does not need to decide wheer e Defendants had a subjective expectation of privacy in e hallway because any expectation ey might have had is not one at society recognizes as reasonable. See, e.g., United States v. Nohara, F.d 1 ( Cir. (holding at tenant had no reasonable expectation of privacy in hall of high security, high-rise apartment building and us drug enforcement agents did not conduct search by peeking around corner of hallway. In e instant case, e Defendant had shared access of e hallway wi seven oer tenants on e same floor as well as ten oer tenants in e building. The Defendants had no control over oer tenants who used e hallway. The Defendants could not prevent e landlord, oer tenants, maintenance personnel, or e public from accessing e hallway. Any person, tenant or nontenant, could use e hallway. Precedent in is Circuit and in oer circuits support e Government s position at e Defendants have no reasonable expectation of privacy in e hallway. For example, in United States v. Nohara, F.d 1, 1 ( Cir., e defendant sought to suppress evidence, arguing at he had a reasonable expectation of privacy in his building and his hallway and e agents conducted an illegal search when ey peeked around e corner of his hallway. In Nohara, e defendant lived in a high security, high rise apartment building. F.d at 0. It had twenty-seven stories wi seven apartments per floor. Id. There were twentyfour hour security guards on duty. Id. Residents could monitor e entrances of e building and garage wi eir own television sets. Id. The elevator conveyed evening guests directly and solely to eir hosts floors. Id. Unaccompanied Response in Opposition to Defendant s Motion to Suppress Evidence -

11 guests could only gain entry by using a telephone intercom and having a resident buzz em in. Id. DEA agents gained admission into Nohara s apartment building and en onto e twenty-fif floor, where his apartment was, wiout Nohara s permission. Id. In Nohara, is Circuit concluded at any expectation of privacy e defendant might have had is not one at society recognizes as reasonable. F.d at 1. This Circuit s holding in Nohara is supported by several oer circuits which agree at a tenant does not have a reasonable expectation of privacy in an apartment building hallway or oer common area. Nohara, F.d at citing United States v. Concepcion, F.d, 1 ( Cir. 1 (apartment common areas; United States v. Barrios-Moriera, F.d 1, (d Cir. (apartment hallway, cert. denied, U.S. (; United States v. Eisler, F.d, 1 ( Cir. (apartment hallway; United States v. Cruz st Pagan, F.d, (1 Cir. (apartment garage; United States v. Anderson, F.d 1, 1 (D.C. Cir. (rooming house hallway. The Defendants also contend at e evidence should be suppressed because e agents unlawfully entered e hallway. A similar argument was made and rejected in Nohara. Joining e First, Second, and Eigh Circuits, is Circuit held an apartment dweller has no reasonable expectation of privacy in e common areas of e building wheer e officer trespasses or not. F.d at (citing Barrios-Moriera, F.d at ; United States v. McGrane, F.d, ( Cir. ; Cruz Pagan, F.d at. The Eigh Circuit stated it well in Eisler: The locks on e doors to e entrances of e apartment complex were to provide security to e occupants, not privacy in common hallways... An expectation of privacy necessarily implies an expectation at one will be free of any intrusion, not merely unwarranted intrusions. The common hallways of [defendant s] apartment building were available for e use of residents, and eir guests, e landlord and his agents, and oers having legitimate reasons to be on e premises. That [e DEA agent] was a technical trespasser in a common hallway is of no consequence since appellants Response in Opposition to Defendant s Motion to Suppress Evidence -

12 had no reasonable expectation at conversations taking place eir would be free from intrusion. Eisler, F.d at 1 (emphasis in original. In an effort to establish eir privacy interest in e hallway, like e defendant in Nohara e Defendants in e instant case rely heavily on United States v. Fluker, F.d 0, 1 ( Cir.. However, Fluker provides a weak foundation. This Circuit refused to extend Fluker s holding to Nohara. F.d at. It also refused to extend e holding of Fluker in United States v. Roberts, F.d, ( Cir. (no reasonable expectation of privacy in private road because appellant had no control over e five oer homeowners: ey could have invited anyone, including police officers, to drive up e road.. Similarly, is Court should refuse to extend Fluker s narrow holding to e instant case. In Fluker, is Circuit held at e appellant had a reasonable expectation of privacy in e corridor area separating e door of his apartment from e outer doorway of e apartment building. F.d at 1. However, e facts of Fluker differ greatly from e facts here. There, DEA agents forcibly entered a locked corridor at led to e private entrances of two basement apartments. Id. The agents in e instant case did not forcibly enter anying. In Fluker, is Circuit relied on e fact at e building was not one containing many individual apartment units, but raer was comprised of only two apartments on e basement level and e landlord s living quarters on e upper floor. Id. In e instant case, e Post Falls Professional Center is a multi-level, multi-unit commercial complex, not a small residential structure wi two tenants. The appellant in Fluker lived in one of e two basement apartments. Id. In e instant case, e Defendants did not live in Suite B and ere were multiple units on e same floor. In Fluker, e court also relied on e fact at e entry way was one to which access was clearly limited as a matter of right to e occupants of e two basement apartments, and it Response in Opposition to Defendant s Motion to Suppress Evidence - 1

13 was undisputed at e outer doorway was always locked and at e only occupants of e two apartments and e landlord had keys. Id. Here, access was not clearly limited as a matter of right to e occupants of Suite B. There were seven oer tenants on e basement floor. Given e small size of e building in Fluker, e court found significant e fact at e door to e hallway giving access to e two apartments was locked and e two lower-level tenants us exercised considerably more control over access to at portion of e building an would be true in a multi-unit complex, and hence could reasonably be said to have a greater expectation of privacy an would be true of occupants of large apartment buildings. Id. In e instant case, e Defendants did not have e means or auority to exclude or restrict oers from e hallway. They had no control over e oer tenants on e floor or in e building. The Defendants also did not have e auority to leave e boxes in e hallway. While e hallway also led to five secure storage rooms which could be rented, e hallway itself was not a secure storage space as e Defendant contend. The door giving access to e hallway was not locked. Moreover, is Circuit emphasized in Fluker at its holding applied only to e narrow facts of at case: [W]e find at under e narrow set of facts in is case, appellant... had a reasonable expectation of privacy as to e hallway separating his apartment door from e outer, locked door.... [W]e are not intimating at a similar result would obtain in circumstances oer an e one before us; our holding is confined to e facts of is case. Id. at 1-. Given e foregoing, e holding in Fluker should not be extended to e instant case. The Defendants did not have a reasonable expectation of privacy in e hallway of e Post Falls Professional Center. The Contents of The Boxes Were In Plain View And The Agents Did Not Conduct A Warrantless Search On March, 00 The Defendants contend at e boxes at were seized contained covered lids and contained bo business and personal documents e Defendants intended Response in Opposition to Defendant s Motion to Suppress Evidence - 1

14 to keep private and safe. Def s Motion, pp. -. Many of e boxes did not contain lids. The boxes were sitting at a ninety-degree angle along e wall in a public hallway. Loose papers were overflowing from several of em. The Defendants vaguely allege at SSA Neirinckx had to inspect e contents of e boxes in order to know at ey included such items as CD s. Def s Motion, p.. If e Defendants are suggesting at SSA Neirinckx did more an simply observe what was in plain view, ey are wrong. SSA Neirinckx did not rummage rough e boxes or disturb eir contents prior to obtaining e search warrant. Many of e boxes did not have lids and e contents were in plain view. Under e plain view doctrine, discovery of evidence does not constitute a search wiin e meaning of e Four Amendment if an officer, standing in a place where he has a right to be, merely sees what is in plain view before him. United States v. Finnigan, F.d ( Cir.. There are ree requirements for a plain view search. First, ere must be a legitimate justification for e officer s presence. Second, e discovery must be inadvertent. Finally, it must be immediately apparent to e police at ey have evidence before em. United States v. Chesher, F.d 1, 1 ( Cir. (citing Collidge v. New Hampshire, 0 U.S., (. All ree requirements are satisfied here. SSA Neirinckx saw e boxes while standing in a public hallway in a commercial office building. His discovery of e boxes in e hallway was inadvertent. SSA Neirinckx did not go to e hallway expecting to find boxes of documents. Lastly, SSA Neirinckx saw at e boxes contained files which had AEIT and A+ Institute written on em. Given e fact at a few weeks prior to March, 00, e Secret Service had made several undercover online degree purchases and e fraudulent degrees had been shipped from A + Institute, 01 E. Seltice B, Post Falls, Idaho, and had determined rough DHL records at packages had been shipped internationally and domestically from A+ Institute, 01 E. Seltice B, Post Falls, Response in Opposition to Defendant s Motion to Suppress Evidence -

15 Idaho during e previous two mons, it was immediately apparent to SSA Neirinckx at he had evidence before him. The Defendants Abandoned e Boxes And Do Not Have Standing To Complain Of Their Seizure The Defendants actions are not consistent wi any reasonable expectation of privacy and ey voluntarily abandoned e property for Four Amendment purposes. Persons who voluntarily abandon property lack standing to complain of its search or seizure. United States v. Jackson, F.d 0, 0 ( Cir.. To find at a person has abandoned property, a district court need only conclude wheer e person so relinquished his interest in e property at he no longer retained a reasonable expectation of privacy at e time of e search. United States v. Nordling. 0 F.d, ( Cir. (providing at [t]his determination is to be made in light of e totality of e circumstances, and two important factors are denial of ownership and physical relinquishment of e property. This Circuit has recognized at abandonment is a question of intent. Id. The inquiry should focus on wheer rough words, acts or oer objective indications, a person has relinquished a reasonable expectation of privacy in e property at e time of e search or seizure. Id. Given e totality of e circumstances, e Defendant so relinquished his interest in e property at he no longer retained a reasonable expectation of privacy at e time of e search. The Defendant did not even discover at e property was missing until May, 00, seventy-six days after e agents seized it pursuant to a search warrant. ROI 0-. Moreover, Defendant Steven K. Randock, Sr. was an absentee-tenant. He did not work on a daily basis out of Suite B and he rarely, if ever, went to e Post Falls Professional Center. The same is true for Defendants Dixie Randock and Heidi Lorhan. If e Defendants wanted to retain a privacy interest in e boxes, ey would have left em in Suite B, not an insecure hallway. Mere ownership of property does not establish a legitimate expectation of Response in Opposition to Defendant s Motion to Suppress Evidence - 1

16 privacy unless e owner vigilantly protects e right to exclude oers. See, e.g., United States v. Salvucci, U.S., 1- (0. The Defendants did not vigilantly protect e right to exclude oers from e boxes. They left e boxes in a common hallway ey did not own or rent. The Defendants had no possessory or proprietary interest in e premises on which e agents discovered e boxes. While e Defendants may have had access to Suite B, eir rights did not include any expectation of privacy over documents left in a hallway. They left e boxes in e hallway wiout e building owner s permission or knowledge. The Defendant s actions are indistinguishable from e actions of e defendant in United States v. Thomas, F.d (D.C. Cir.. In at case, e defendant left a gym bag on e floor of a public hallway. The police searched e gym bag wiout a warrant. The D.C. Circuit concluded at e defendant abandoned his gym bag when he left it in e public hallway where he retained no reasonable expectation of privacy in it. Id. The D.C. Circuit noted at [t]he legal significance of e defendant s act is not altered by e fact at he might have retrieved e bag later. His ability to do so would depend on e fortuity at oer persons wi access to e public hallway would not disturb his bag while it lay ere unattended. Cf. United States v. Jones, 0 F.d, 1 ( Cir. (explaining at e defendant s ability to recover e satchel [he had discarded] depended entirely upon e fate and absence of inquisitive (and acquisitive passers-by. Thomas, F.d at n.. The legal significance of e Defendant s act of leaving e boxes in e hallway is not altered by e fact at he might have retrieved em later. His ability to do so would depend on e fortuity at oer persons wi access to e public hallway would not disturb e boxes while ey lay ere unattended. The Defendants Did Not Have Legal Auority To Store Boxes In A Public Hallway Moreover, to e extent at e Defendants used a public hallway to store eir documents, ey did so wiout permission of e landlord. ROI 0 Response in Opposition to Defendant s Motion to Suppress Evidence - 1

17 (Exhibit. The commercial lease agreement Defendant Steven K. Randock, Sr. entered into wi Mr. Guerra clearly provided at e only space e Defendant was renting in The Post Falls Professional Center was Suite B. Wiout legal auority to store eir documents in e hallway, e Defendants lack e legitimate expectation of privacy in e premises required to challenge e search. United States v. Gale, 1 F.d, (D.C. Cir.. See Zimerman v. Bishop Estate, F.d ( Cir. (squatters and eir guest lacked objectively reasonable expectation of privacy in anoer s property and consequently were precluded from claiming search of shack on property violated Four Amendment, cert. denied, 1 U.S. (. The Agent Complied Wi Rule 1(f( by Giving A Copy of The Warrant To The Person From Whose Premises The Property Was Taken And Did Not Act Wi Intentional And Deliberate Disregard Of The Rule The Defendants contend at e Government agents acted wi intentional and deliberate disregard of Rule 1 by giving a copy of e warrant to Mr. Guerra. Def s Motion, p.. Fed.R.Crim.P 1(f( (00 provides at: The officer executing e warrant must: (A give a copy of e warrant and a receipt for e property taken to e person from whom, or from whose premises, e property was taken; or (B leave a copy of e warrant and receipt at e place where e officer took e property. (emphasis added. The rule gives law enforcement officers two options: (1 ey may eier give e warrant and receipt to e person from whom e property was taken, or from whose premises e property was taken; or ( ey may leave a copy of e warrant and receipt at e place where e officer took e property. Mr. Guerra was not on e premises when e search warrant was executed. SSA Neirinckx gave a copy of e warrant to Mr. Guerra, e person from whose premises e property was taken. The Defendants argue at e search violated Rule 1(f(; erefore e evidence should be suppressed. Suppression is rarely e proper remedy for a Response in Opposition to Defendant s Motion to Suppress Evidence -

18 Rule 1 violation. United States v. Williamson, F.d, ( Cir. 00. The Supreme Court has stated at e Federal Rules of Criminal Procedure do not constitute a statutory expansion of e exclusionary rule. United States v. Calandra, U.S., n. (; see also, e.g., United States v. Johnson, 0 F.d, ( Cir. 1 (noting at [o]nly a fundamental violation of Rule 1 requires automatic suppression, and a violation is fundamental only where it, in effect, renders e search unconstitutional under traditional four amendment standards (emphasis added (internal quotation marks omitted. Even United States v. Gantt, F.d, 0 ( Cir., upon which e Defendants rely, enunciated e same principle: Violations of Rule 1(d do not usually demand suppression... ; see also United States v. Hornick, 1 F.d, ( Cir. ( [I]t is difficult to anticipate any violation of Rule 1, short of a defect at also offends e Warrant Clause of e four amendment, at would warrant suppression.. There are ree circumstances under which evidence obtained in violation of Federal Rule of Criminal Procedure 1 requires suppression: 1 e violation rises to a constitutional magnitude; e defendant was prejudiced, in e sense at e search would not have occurred or would not have been so abrasive if law enforcement had followed e Rule; or officers acted in intentional and deliberate disregard of a provision in e Rule. United States v. Martinez- Garcia, F.d, ( Cir. cert. denied, U.S., 1 S.Ct. 1 (00. The Defendant s argument is at e agents acted wi intentional and deliberate disregard of Rule 1" and [t]his was also a fundamental violation of e four amendment. Def s motion, p.. The Defendant s argument is wiout merit. How can ere be a four amendment violation when e privacy interest is not one at society recognizes as reasonable? There is no four amendment violation because e Defendants did not have a reasonable expectation of privacy in e hallway. Thus, ere is no Response in Opposition to Defendant s Motion to Suppress Evidence -

19 constitutional violation. Moreover, e Defendants do not argue at ere was any prejudice. Nor can ey. The agent complied wi Rule 1(f( by giving a copy of e warrant and inventory to e person from whose premises e property was taken. The Defendants argument is based on Gantt. Def s Motion, p.. However, e search which occurred in e hallway of e Post Falls Professional Center is clearly distinguishable from e one in Gantt, where e search was executed on e defendant s hotel room, e defendant was present in her hotel room but was directed to sit in e hallway while e agents conducted a reehour search, e agents did not show Gantt e warrant under e auority of which ey had invaded e privacy of her hotel room until Gantt herself asked to see e search warrant, where e agents responded by showing her e face of e warrant but not Attachment A, after concluding eir search, e agents gave Gantt an inventory of items seized and left a copy of e warrant wi Attachment A behind in e hotel room, and where Gantt was prevented from examining e copy of e warrant left in e hotel room because she was arrested and transported to an FBI office. None of ose circumstances are present here. The agents in e instant case invaded no privacy interest. Some cases have equated deliberate and intentional disregard wi bad fai. United States v. Williamson, F.d, 1 ( Cir. 00. For example, in United States v. Crawford, F.d 1, ( Cir. 1, is Circuit refused to invoke e exclusionary rule wiout evidence of bad fai. See also United States v. Luk, F.d, ( Cir.. Along similar lines, in United States v. Radlick, 1 F.d, - ( Cir., is Circuit concluded at wheer ere was intentional and deliberate disregard turns on wheer ere was an intent to flout e Rule. See also, Gantt, F.d at 0 (concluding at e agents acted wi intentional and deliberate disregard of e Rule where ey showed bad fai. Response in Opposition to Defendant s Motion to Suppress Evidence -

20 SSA Neirinckx did not act wi intentional and deliberate disregard of Rule 1. Quite e contrary is true. Rule 1(f( clearly provides at e officer executing e warrant must give a copy of e warrant... to e person from whose premises e property was taken. SSA Neirinckx did exactly at. The boxes were not located on e Defendants premises. They were located on Mr. Guerra s premises. There was no intent to flout e Rule. SSA Neirinckx acted in good fai and complied wi Rule 1(f( s requirement. The Defendants allege at e agents knew very well whose property ey were taking and [i]nstead engaged in deliberate obfuscation and subterfuge. Def s Motion, p.. The Defendants are mistaken. To borrow a phrase uttered many years ago by someone else in a different setting, what was operating out of Suite B was a puzzle wrapped wiin a mystery inside a conundrum. As of March, 00, e Secret Service s investigation into e byzantine operations of e Defendants activities was still in its first trimester, having been initiated in January 00. It was unclear how extensive e criminal enterprise(s being operated in Suite B were. It also was unclear exactly how many illegal businesses or schools were being operated from Suite B, who actually owned em, and who was operating em. The door to Suite B shed no light to what, or who, was operating wiin its walls. It contained no advertising. To add to e mystery, an inquiry to e Idaho Secretary of State s Office on March 1, 00, revealed at e only two businesses which listed Suite B as an address were Kaching-Kaching, Inc. and When Pigs Fly, Inc. (Exhibit. The Handwritten Note Was Not An Unconstitutional Ruse - The United States Had Important Reasons For Employing It The Defendants also suggest at e agents engaged in an unconstitutional ruse by leaving a handwritten note in e commercial hallway of e Post Falls Winston Churchill used is phrase when describing anoer country s foreign policy. Response in Opposition to Defendant s Motion to Suppress Evidence - 0

21 Professional Center after e boxes had been seized pursuant to e search warrant. The execution of e search warrant and leaving e note were two separate and distinct undertakings. The Defendants argument is wiout merit and e United States will more fully address it in its response in opposition to e Defendants motion to dismiss Indictment, which will be filed separately. Courts have consistently upheld e employment of undercover ruses in bo investigating criminal activity and executing search warrants. See, e.g., Lewis v. United States, U.S. 0, 0-0 ( ( [i]t has long been acknowledged by e decisions of is Court, [citations omitted], at in e detection of many types of crime, e Government is entitled to use decoys and to conceal e identity of its agents. The use of government ruses and deception has recently been upheld in United States v. Alverez-Tejeda, F.d, 00 WL ( Cir. (Wash.. In Alverez-Tejeda, DEA agents staged an accident/eft/chase in order to seize drugs wiout tipping off e conspirators. F.d, 00 WL, at 1. The United States had important reasons for leaving e note, including: determining who, if anyone, would claim ownership of e boxes; protecting e anonymity of an ongoing criminal investigation; and wanting to reveal e criminal design or to expose e illegal conspiracy. As is Circuit acknowledged in Alverez-Tejeda, e Supreme Court has emphasized e necessity for some undercover police activity, Lewis v. United States, U.S. 0, 0-0 (, and explained at [a]rtifice and stratagem may be employed to catch ose engaged in criminal enterprises[;]... to reveal e criminal design; [or] to expose e illicit traffic,... e illegal conspiracy, or oer offenses, id. at 0 n. (quoting Sorrells v. United States, U.S., 1- (. F.d, 00 WL, at. Courts have long recognized at [t]here is no reason for e government to halt oer investigatory techniques when it obtains a warrant because [t]hese oer techniques might reveal different information not available from a warrant search. See, e.g., United States v. Alvarez, 1 F.d, 0 ( Cir.. Response in Opposition to Defendant s Motion to Suppress Evidence - 1

22 The Warrant Plainly Meets The Particularity Requirement Of The Four Amendment The Four Amendment requires at a warrant particularly describe e place to be searched and e person or ings to be seized. U.S. Const. Amend IV. The description must be specific enough to enable e person conducting e search reasonably to identify e ings auorized to be seized. See United States v. Silva, F.d 1, ( Cir. 001; United States v. Spilotro, 00 F.d, ( Cir.. This requirement prevents general, exploratory searched and indiscriminate rummaging rough a person s belongings. See id.; United States v. McClintock, F.d, ( Cir.. It also ensures at e magistrate issuing e warrant is fully apprised of e scope of e search and can us accurately determine wheer e entire search is supported by probable cause. Spilotro, 00 F.d at ; United States v. Hillyard, F.d 1, 1 ( Cir.. The specificity required in a warrant varies depending on e circumstances of e case and e type of items involved. Spilotro, 00 F.d at. Warrants which describe generic categories of items are not necessarily invalid if a more precise description of e items subject to seizure is not possible. Id.; see also United States v. Cardwell, 0 F.d, ( Cir.. While a search warrant must describe items to be seized wi particularity sufficient to prevent a general, exploratory rummaging in a person s belongings, it need only be reasonably specific, raer an elaborately detailed. United States v. Rude, F.d 1, ( Cir. (internal quotation marks and citations omitted. In determining wheer a description is sufficiently precise, is Circuit has concentrated on one or more of e following: (1 wheer probable cause exists to seize all items of a particular type described in e warrant, ( wheer e warrant sets out objective standards by which executing officers can differentiate items subject to seizure from ose which are not, and ( wheer e government Response in Opposition to Defendant s Motion to Suppress Evidence -

23 was able to describe e items more particularly in light of e information available to it at e time e warrant was issued. Spilotro, 00 F.d at (internal quotations omitted; accord United States v. Lacy, 1 F.d, n. ( Cir. ; United States v. Noushfar, F.d, ( Cir.. Using ese criteria, e warrant issued for e search of e property located in e hallway of e Post Falls Professional Center plainly meets e particularity requirements of e Four Amendment. Good Fai Exception To The Exclusionary Rule The agent s reliance on e search warrant falls wiin e good fai exception to e exclusionary rule. In United States v. Leon, U.S. (, e Supreme Court announced a good fai exception to e application of e exclusionary rule. U.S. at -. Working from e premise at e exclusionary rule is a judicially created, as opposed to constitutionally required, remedy for Four Amendment violations, e Court reasoned at where police conduct is pursued in complete good fai, e rule s deterrent function loses much of its force. Leon, U.S. at (quoting United States v. Peltier, U.S. 1 (. As such, e court concluded at e exclusionary rule should not bar e government s introduction of evidence obtained by officer s acting in objectively reasonable reliance on a search warrant at is subsequently invalidated. Leon, U.S. at -1. The Court stressed at e good fai test is an objective one. We ask not what e executing officer believed, or could have believed, but wheer a reasonably well trained officer would have known at e search was illegal despite e magistrate s auorization. Leon, U.S. at, n.. United States v. Clark, 1 F.d 1, ( Cir.. While is inquiry is tied to e facts of each case, e Supreme Court has identified four situations in which reliance on a warrant cannot be considered objectively reasonable, and erefore e good fai exception cannot apply: (1 when e affiant knowingly or Response in Opposition to Defendant s Motion to Suppress Evidence -

24 recklessly misleads e judge wi false information; ( when e judge wholly abandons his or her neutral role; ( when e affidavit is so lacking in probable cause at official belief in its existence is objectively unreasonable; and ( when e warrant is so facially deficient at executing officers cannot reasonably presume it to be valid (i.e., it fails to specify e place to be search or e ings to be seized. See Leon, U.S. at, ; United States v. Johns, F.d, 0-0 ( Cir. 1. None of e Leon categories applies to is case. There was no use of materially misleading information in e affidavit. The magistrate did not wholly abandon his judicial role. There was probable cause to search e hallway. Lastly, e warrant was not facially deficient. It particularized e place to be searched and e ings to be seized. Independent Source / Attenuated Basis / Inevitable Discovery Exceptions If e Court determines at e March, 00, search was illegal, e evidence should not be suppressed. The Supreme Court has developed ree exceptions to e fruit of e poisonous tree doctrine which allow e admission of evidence derived from official misconduct. These ree exceptions are e independent source exception, e attenuated basis exception, and e inevitable discovery exception. United States v. Ramirez-Sandoval, F.d 1, 1 ( Cir.. The independent source exception operates to admit evidence at is actually found by legal means rough sources unrelated to e illegal search. Silverorne Lumber Co. v. United States, 1 U.S., (0. Independent source evidence is not fruit of e poisonous tree because its discovery rough independent legal means does not result from e official s illegal conduct. Ramirez-Sandoval, F.d at 1. The inevitable discovery exception, adopted by e Supreme Court in Nix. v. Williams, U.S. 1 (, allows e introduction of illegally obtained evidence if e government can show by a preponderance of e evidence at e tainted evidence would inevitably Response in Opposition to Defendant s Motion to Suppress Evidence -

25 have been discovered rough lawful means. Id. at. The attenuated basis exception applies when e connection between e illegality and e challenged evidence has become sufficiently weak so as to dissipate e taint caused by e illegality. Ramirez-Sandoval, F.d at 1 citing Wong Sun v. United States, 1 U.S. 1, (. CONCLUSION For e foregoing reasons, e Defendants motion to suppress evidence should be denied. DATED August, 00. James A. McDevitt United States Attorney s/ George J.C. Jacobs, III George J.C. Jacobs, III Assistant United States Attorney I hereby certify at on August, 00, I electronically filed e foregoing wi e Clerk of e Court using e CM/ECF System which will send notification of such filing to e following, and/or I hereby certify at I have mailed by United States Postal Service e document to e following non- CM/ECF participant(s: Mr. Peter S. Schweda Attorney at Law 0 Nor Pines Road Spokane, WA 0 Mr. Phillip J. Wetzel Attorney at Law 01 Nor Adams Street Spokane, WA 01 Mr. Richard D. Wall Attorney at Law West First Avenue, Suite 0 Spokane, WA 01 Mr. Timoy D. Trageser Attorney at Law W. Norwest Blvd. Spokane, WA 0 s/ George J.C. Jacobs, III George J.C. Jacobs, III Assistant United States Attorney Response in Opposition to Defendant s Motion to Suppress Evidence -