USA v. Flowers et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, 	) 	Case No. 3:16-cr-00035-SLG-SAO
) 	Case No. 3:16-cr-00058-SLG-SAO
Plaintiff, 	)
) 	REPORT AND RECOMMENDATION
vs. 	) 	REGARDING DEFENSE MOTION TO
) 	SUPPRESS PHYSICAL EVIDENCE
ARNOLD WESLEY FLOWERS, II, 	) 	FROM SEARCH OF RESIDENCE
)
) 	Dkt. 52 in 3:16-cr-00035-SLG-SAO
Defendant. 	) 	(Dkt. 58 in 3:16-cr-00058-SLG-SAO)1
______________________________________ )
Introduction
The defendant, Arnold Wesley Flowers II (Defendant), moved to suppress all evidence
resulting from execution of a state of Alaska search warrant at 3108 Seclusion Bay Drive.2 The
Government opposed at Dkt. 70 (Dkt. 82) and Defendant replied at Dkt. 87 (Dkt. 98). Defendant
requested an evidentiary hearing, Government opposed, and the court did not find an evidentiary
hearing necessary to decide the motion.3 The court considered proffered facts from the parties and
exhibits offered in support of the motion and opposition.4 Oral argument was held August 23,
2016.5
1 Docket annotations in 3:16-cr-00058-SLG-SAO will appear in parentheses.
2 Dkt. 53. (Dkt. 58).
3 At the August 3, 2016 status hearing, the court heard argument from the parties regarding the
need for an evidentiary hearing and subsequently ruled that none was required to determine this
motion. Dkt. 94 (Dkt. 111), Dkt. 96 (Dkt. 119).
4 Dkt. 134, at 90. See also August 3, 2016 status hearing. Dkt. 94 (Dkt. 111), Dkt. 96 (Dkt. 119).
5 Dkt. 140 contains the minutes.
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Defendant is named in two pending cases before the court. In case 3:16-cr-00035-SLG-
SAO, the defendant was indicted on one count of Possession of a Controlled Substance with Intent
to Distribute violating 21 U.S.C. § 841(a)(1) and (b)(1)(C), one count of Possession of a Firearm
in Furtherance of Drug Trafficking violating 18 U.S.C. § 924(c)(1)(A)(i), and one count of Felon
in Possession of Firearms violating 18 U.S.C. 922(g)(1) and 924(a)(2).6 In case 3:16-cr-00058-
SLG-SAO, a First Superseding Indictment named the defendant and Miranda May Flowers in
fourteen counts of Wire Fraud in violation of 18 U.S.C. 1343.7
Issues Presented
Defendant Flowers II was charged in part based on evidence obtained from a police
search of his home at 3108 Seclusion Bay Drive in Anchorage, Alaska. An Alaska magistrate judge
authorized the search in warrant No. 3AN-16-824-SW on March 24, 2016, executed on March 29,
2016.8 Flowers II challenges the lawfulness of the warrant for 3108 Seclusion Bay Drive as well
as law enforcement officers’ reliance upon it.9 This Report and Recommendation addresses the
following issues:
1. 	Whether the evidence presented to the Alaska magistrate judge was sufficient for the
magistrate to find a substantial basis that probable cause existed to search 3108 Seclusion
Bay Drive on March 29, 2016.
2. 	If the magistrate’s probable cause determination lacked substantial basis, then whether law
enforcement officers’ application for and reliance on the warrant was objectively
reasonable under the doctrine of good faith.
Findings of Fact
6 Dkt. 2.
7 Dkt. 132.
8 Officers of the Anchorage Police Department led the search accompanied by other law
enforcement agencies.
9 Dkt. 52-1.
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The Alaska magistrate judge made her probable cause determination based on an eighteen-
page affidavit from Detective R. Allen Adair of the Anchorage Police Department (APD). The
affidavit chronicles joint APD and FBI surveillance of Defendant and Davon Smith, among other
individuals, between January 27, 2016, and March 26, 2016, as well as historical information
predating January 27, 2016.
Detective Adair's affidavit supporting the warrant describes that he has over twenty years
of law enforcement experience, including concentration in the field of drug enforcement. 	He
completed three different law enforcement academies and conducted hundreds of drug-related
investigations, including investigating the use, possession, manufacture, and trafficking of various
drugs. 	Detective Adair also served as a drug detector dog handler. 	The affidavit described his
detailed knowledge of the characteristics common to those involved with drugs applied it to the
behaviors of Defendant and Davon Smith (Smith). Detective Adair described specific examples
of behavior indicating Defendant and Smith were involved in the illegal drug trade. 10
The investigation leading to the search warrant began when Davon Smith, who lived at
Defendant's house, was observed supplying heroin to a known drug dealer. Smith was on release
from the State of Alaska because of a pending drug offense. Smith resided with Defendant and
his wife, Miranda May Flowers, pursuant to a court order establishing Miranda Flowers as his
custodian.11 All three lived at 5422 Larkspur until they moved, approximately March 19, 2016, to
3108 Seclusion Bay Drive also in Anchorage, Alaska. 	On January 27, while the defendant and
10 Though described in greater detail below, Detective Adair described Defendant and Smith’s
counter-surveillance activities, Flowers II’s very frequent visits to a storage locker at odd
nighttime hours, several times carrying safes, the suspicious timing of some of Flowers II’s visits
to a storage facility with Smith’s short-duration meetings, and the unusual behaviors of the many
short-duration guests frequenting the Larkspur house.
11 Dkt.53, at 15.
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Smith resided together, Detective Adair, in an undercover capacity, placed an order for heroin with
a known dealer. Police observed the dealer meet with Smith later that day. The next day, APD
officers observed Smith again meet with and supply drugs to the known dealer who then sold
approximately 5 grams of heroin to Detective Adair. This transaction precipitated significant
additional surveillance of Smith and eventually his housemate, Defendant, including eventual
issuance of state warrants to track their whereabouts via GPS and visual surveillance.
Davon Smith was observed by police regularly coming and going from a duplex at
5422/5420 Larkspur Circle.12 APD observed three other individuals regularly coming and going
from the same address: Defendant, Arnold Wesley Flowers III (Defendant's son), and Miranda
Flowers. Detective Adair’s query of APSIN confirmed that the Defendant’s registered address was
5422 Larkspur. Based on visual observations, electronic tracking, and APSIN information, Adair
concluded that all four individuals resided at 5422 Larkspur.
APD also observed Smith’s girlfriend, Lismar Colome, leaving the Larkspur duplex on at
least one occasion while Smith resided there with the defendant. Police were aware at the time
that Colome was wanted under a federal arrest warrant after a recent indictment for possession of
185.62 grams of heroin. That heroin was allegedly found on Colome’s person in September 2015
as police investigated a possible shooting in the apartment she shared with Smith. 	Colome
allegedly attempted to depart with that heroin, and a search warrant yielded an additional 116.16
grams of heroin in their apartment, along with firearms, money, and drug paraphernalia. 	With
regard to Defendant, Detective Adair suspected him of being involved in upper level heroin sales
12 5422/5420 Larkspur is a common Duplex with separate entrances for the two separate
residences.
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based on surveillance and information he received from witnesses and various entities, as
discussed below.
On February 24, 2016, Detective Adair notes in his affidavit that he spoke with a neighbor
on Larkspur Circle who described to Adair a variety of frequent, short duration vehicle and
pedestrian traffic to and from 5422/5420 Larkspur. More specifically, the neighbor observed that
visitors would frequently park on a nearby street, instead of Larkspur, and enter 5422 through a
specific door before departing shortly thereafter. Detective Adair’s affidavit states that he
confirmed that specific door was that of 5422 Larkspur, the residence of the Flowers’ and Smith,
and that it was consistent with police observations of the foot traffic and manner of entry into the
house. 	Adair’s affidavit avers that based on his training and experience, the frequent, 	short
duration visits and unusual manner of visitors’ parking habits, indicates behavior “exercised by
those involved in order to appear somewhat discreet in their endeavors and create a buffer between
the drug supplier I drug customer relationship.”13
On February 24, Detective Adair purchased heroin again via Smith. 	As before, Adair
called his dealer, then Smith was observed departing his Larkspur residence before meeting with
Adair’s dealer. The dealer then delivered approximately 4.5 grams of heroin to Detective Adair.
Later in the day, Officer Deville was confronted by the Defendant as he conducted undercover
surveillance on Larkspur. 	Initially, Deville was parked several houses to the south of 5422
Larkspur, when the defendant arrived home and took note of him. After staying away for some
twenty minutes, Officer Deville returned to the area and took up surveillance approximately four
houses to the north of 5422 Larkspur this time. Only a few minutes into Deville’s new location,
the defendant drove his vehicle and parked in front of Deville’s undercover vehicle, got out, and
13 Dkt. 70, at 10.
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asked Deville what he was doing there. When Deville responded that he was waiting for a real
estate agent to show him a house, the Defendant seemed satisfied and departed. Detective Adair
concluded that “based on Defendant's demeanor, surveillance detection abilities, apparent
relationship to Smith, and relationship to 5422 Larkspur Circle ... [Defendant] was still currently
engaged in upper level heroin sales.”14 Following these events, on February 26, Detective Adair
obtained state search warrant number 3AN-16-559SW from Judge Dickson authorizing a search
of 5422 Larkspur, however it was not served.
On March 8, Detective Adair observed two men resembling Davon Smith and Flowers III
enter Best Storage, an indoor storage facility at 3521 East Tudor Road in Anchorage, Alaska.
Using binoculars, Detective Adair saw the pair inside and on the fourth floor of the building; locker
number 4045 is located on the same floor and was frequently visited by the Defendant. They
appeared to be accessing a storage locker as they handled some objects. Thereafter, police began
conducting surveillance at Best Storage in tandem with the visual and GPS surveillance of the
Defendant and Smith. 	At this time, Storage facility cameras and warrant-authorized police
cameras showed Defendant and Flowers III regularly coming and going from the Larkspur
residence to Best Storage. 	Law enforcement observed the Defendant and Flowers III carrying
large portable safes into and out of locker #4045 on at least five occasions, March 8, 19, 21, 22,
and 24, 2016.
Between March 17 and March 18, 2016, Officers saw Defendant, his wife, Flowers III and
Smith move from 5422 Larkspur to a new home at 3108 Seclusion Bay Drive. 	On March 18,
Detective Adair observed Smith, the defendant, and the defendant’s family at Best Storage
accessing unit #3019 on the third floor of the building. Police spoke with a teenager who was
14 Dkt. 70-1, at 15.
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assisting the Defendant and Smith as they moved their belongings. The teenager informed Adair
that he and the adults were picking up items from a storage locker with which to furnish their new
home. The continuing physical and electronic surveillance of the Defendant and Smith confirmed
that Defendant, his wife, Flowers III, and Smith had relocated to 3108 Seclusion Bay. Accordingly,
the officers discarded the February 24 warrant for Larkspur and sought a new warrant for the
defendant and Smith’s new house at 3108 Seclusion Bay.
At 3:45 a.m. on March 21, the Defendant was observed accompanied by Flowers III
carrying a safe to locker #4045 at Best Storage. After opening that locker, the Defendant removed
a second safe from within. He then accessed both safes and removed a large bundle of cash,
approximately four inches thick, from one of the safes. Defendant put that currency into a Crown
Royal bag, inspected a second Crown Royal bag, placed both safes into the locker – including the
safe he arrived with – then departed the complex. 	Later that day, Detective Adair attempted
another heroin purchase from his dealer but was unsuccessful. 	The dealer informed Adair that
Smith had become leery since the February purchase, but that Smith was in the process of
resupplying his heroin cache.
On March 22, officers observed Defendant depart Best Storage and drive to 3108 Seclusion
Bay Drive. Approximately five minutes after Defendant arrived home, Smith left the same house
in his vehicle and drove to the Mountain View area of Anchorage where he appeared to engage in
a short duration meeting with an occupant in another vehicle. 	Thereafter, Smith drove to three
more locations in the nearby area, staying at each for between three and thirty-seven minutes,
before he eventually returned to 3108 Seclusion Bay where his car remained for the night. During
one of the short duration visits, a male was observed entering Smith’s car for three minutes and
then departing. 	Detective Adair stated that these behaviors were consistent with illegal drug
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transactions based on his training and experience. On March 24, 2016, Detective Adair obtained
state search warrant #3AN-16-824 to search the house at 3108 Seclusion Bay Drive, which was
searched on March 29, 2016.
Conclusions of Law
a. 	The Defendant had a reasonable expectation of privacy in his home; therefore
he may challenge the warrant.
Prior to examining the lawfulness of the warrant, the court must first address Government’s
assertion that Defendant lacks Fourth Amendment standing15 to challenge that warrant. 	More
specifically, the Government’s argument is that Defendant lacked a privacy interest both in his
home and with regard to evidence seized from within his home, including from within his wife’s
purse. The court’s inquiry, though, is focused on the location of the seized items and not per se on
the possessory status of those items. Defendant had a reasonable expectation of privacy in his
primary residence and thus in the items searched and then seized from his home, regardless of
whether he or a third party owned those items. Accordingly, the court concludes that Defendant
enjoys the right to challenge the warrant which precipitated the seizure of evidence from his home
now used in a prosecution against him.
15 The court recognizes that the Supreme Court has moved away from a Fourth Amendment
“standing” analysis in favor of a substantive inquiry into the reasonableness of the challenger’s
expectation of privacy. See, United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 756
(9th Cir. 2009) (“The question of who is entitled to contest a search is often framed as one of
standing. However, since the Supreme Court's long history of insistence that Fourth Amendment
rights are personal in nature has already answered many traditional standing inquiries definition
of those rights is more properly placed within the purview of substantive Fourth Amendment law
than within that of standing.”) (internal quotation marks omitted) (citing Rakas v. Illinois, 439
U.S. 128, 140 (1978).); accord Minnesota v. Carter, 525 U.S. 83 (1998).
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In the Fourth Amendment context, “only those who have a legitimate expectation of
privacy in an area [may] challenge a search of it.”16 That expectation must be not only legitimate,
but also “must be an actual one and one that society is prepared to recognize as reasonable.”17 The
challenger bears “the burden of establishing their legitimate expectations of privacy” as a condition
precedent to review of the warrant’s lawfulness.18 As especially applicable to the instant case, it
is “clear that one's reasonable expectation of privacy in the home is entitled to a unique sensitivity
from federal courts.”19
The government’s mainly contends that Defendant failed to make a showing that he “had
any subjective expectation of privacy in the search of 3108 Seclusion Bay Drive or the items
searched inside the residence.”20 Using an example, the government questions whether Defendant
enjoyed an expectation of privacy in the safes found in one of the bedrooms in his home. 	This
court’s inquiry, however, is not focused on who holds title to the items seized. Rather, to challenge
the warrant Defendant must demonstrate that he had an acceptable, legitimate expectation of
privacy in the area the items were seized from.21 With regard to that area, “the sanctity of private
16 United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 756 (9th Cir. 2009).
17 $40,955.00 in U.S. Currency, 554 F.3d 752, 756.
18 $40,955.00 in U.S. Currency, 554 F.3d 752, 756.
19 United States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978); accord United States v. $40,955.00
in U.S. Currency, 554 F.3d 752, 756 (9th Cir. 2009); see also Groh v. Ramirez, 540 U.S. 551
(2004); Silverman v. U.S., 365 U.S. 505 (1961); Kyllo v. United States, 533 U.S. 27 (2001).
20 Dkt. 70, at 7.
21 United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 756, (“ownership of the good
seized does not automatically confer standing on a defendant . . . [but] ownership and possession
of as well as access to the area in which the good was found is certainly an important factor in
determining whether a defendant has a legitimate expectation of privacy in it.” (emphases in
original); see also Alderman v. United States, 394 U.S. 165, 176–77 (1969).
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dwellings [is] ordinarily afforded the most stringent Fourth Amendment protection.”22 In general,
“uncontested declarations of ownership and occupancy establish[] their expectations of privacy in
the entire home.”23 While Defendant did not own the house at 3108 Seclusion Bay, he did occupy
the house as his home and pay rent for the same, thereby triggering the same Fourth Amendment
principles.24 Of course, “[t]he Fourth Amendment shields not only actual owners, but also anyone
with sufficient possessory rights over the property searched.”25 Protections are triggered when an
individual has joint control of a place as evidenced by, for example, an ongoing formal agreement,
payment of rent or bills, and use of the place for its agreed upon purpose.26
The government relies upon U.S. v. Thomas to support its argument regarding a defendant's
ownership interest and expectation of privacy.27 	Thomas is distinguished for several reasons.
First, Thomas involved an automobile where “less rigorous warrant requirements govern because
the expectation of privacy with respect to one's automobile is significantly less than that relating
to one's home or office.”28 	Relevant in our case is that the Thomas court acknowledged the
standard for residential tenants.29 	Thomas found its defendant possessed Fourth Amendment
22 United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976).
23 $40,955.00 in U.S. Currency, 554 F.3d 752, 757.
24 See Georgia v. Randolph, 547 U.S. 103, 123–24 (2006) (“At least since 1604 it has been
settled that in the absence of exigent circumstances, a government agent has no right to enter a
“house” or “castle” unless authorized to do so by a valid warrant. See Semayne's Case, 5 Co.
Rep. 91a, 77 Eng. Rep. 194 (K.B.). Every occupant of the home has a right-protected by the
common law for centuries and by the Fourth Amendment since 1791 – to refuse entry.”).
25 Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015).
26 See United States v. Reyes-Bosque, 596 F.3d 1017, 1028 (9th Cir. 2010).
27 Government Opposition, Dkt. 82, at 8.
28 United States v. Albers, 136 F.3d 670, 672–73 (9th Cir. 1998), as amended on denial of reh'g
(Mar. 20, 1998); quoting South Dakota v. Opperman, 428 U.S. 364, 367 (1976).
29 Thomas at 1198.
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standing based on him having all the tenets of ownership and control: permission to use the space,
a key for the space, belongings therein, and the ability to exclude others from the space.30 Second,
the government conflates the objects of the search with the area the search was conducted within.
The Thomas court was not asking who had an ownership interest in the heroin in the trunk of
Thomas’s car, rather its search for a rule was centered on who had the ownership interest in the
car, itself – the place searched.31 Analogously, this court’s inquiry is not of the items seized from
within Defendant’s house, but instead of the ownership interest Defendant had in the house, itself.
There is no dispute among the parties that 3108 Seclusion Bay Drive was the Defendant’s
home. All of the evidence seized as a result of the search of the home was found in Defendant’s
bedroom, his wife’s purse, or the master bathroom.32 The court need not and therefore does not
make a finding as to whether or to what extent the Defendant owned the items found. 	The
reasonableness inquiry here is “influenced by property law but not controlled by its rules.”33
Defendant enjoyed a societally-accepted and reasonable expectation of privacy in his home.
Therefore, he may bring a challenge to the warrant which yielded evidence seized from within his
home and is now being used against him.34
30 Thomas at 1198. (citing Jones v. United States, 362 U.S. 257 (1960)). See also Minnesota v.
Carter, 525 U.S. 83 (1998) (expounding that while the broader “automatic standing” principle in
Jones was expressly overruled in Rakas v. U.S., the substantive inquiry and holding in Jones
remain valid).
31 Thomas at 1197.
32 Dkt. 87, at 2.
33 Georgia v. Randolph, 547 U.S. 103, 103 (2006).
34 Alderman v. United States, 394 U.S. 165, (“If the police make an unwarranted search of a
house and seize tangible property belonging to third parties . . . the homeowner may object to its
use against him, not because he had any interest in the seized items as “effects” protected by the
Fourth Amendment, but because they were the fruits of an unauthorized search of his house,
which is itself expressly protected by the Fourth Amendment.”) (A tenant in possession of the
premises enjoys the same legitimate expectation of privacy as a homeowner in possession. See,
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b. 	The Alaska magistrate judge had ample evidence to find probable cause to issue
the 	warrant 	for 	3108 	Seclusion 	Bay 	Drive.
The state magistrate judge's “determination [of probable cause] should be paid great
deference” by this court when reviewing her determination for error.35 As a court sitting in review,
the narrow scope of the inquiry is “simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.”36 In looking for that substantial basis, this court reviews
the totality of the circumstances as they were presented to the magistrate prior to her issuing the
warrant.37 Further, “opinions and conclusions of an experienced agent regarding a set of facts are
properly a factor in the probable cause equation under the Gates totality of the circumstances
approach.”38
Detective Adair presented the magistrate with several facets of his investigation for her
consideration. 	First, Detective Adair noted the observations of police and corroboration by a
neighbor of frequent, strange, short-duration foot traffic to the Larkspur house. Himself having
purchased heroin from Smith thru a dealer, Adair was certainly aware that Smith was involved
with heroin. Adair’s opinions and conclusions regarding the unusual foot traffic to the defendant’s
and Smith’s house were well grounded in his training and experience generally and his firsthand
e.g., U.S. v. Murphy, 516 F.3d 1117, 1122 (9th Cir. 2008); United States v. Reyes-Bosque, 596
F.3d 1017 (9th Cir. 2010).).
35 United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (“Normally, we do not
“flyspeck” the affidavit supporting a search warrant through de novo review; rather, the
magistrate judge's determination should be paid great deference.”) (citing Illinois v. Gates, 462
U.S. at 236, (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))).
36 United States v. Seybold, 726 F.2d 502, 503 (9th Cir. 1984) (citing United States v. Ventresca,
380 U.S. 102 (1965).).
37 United States v. Michaelian, 803 F.2d 1042, 1045 (9th Cir. 1986) (citing Illinois v. Gates, 462
U.S. 213, 236 (1983).). See also United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987)
38 Michaelian, 803 F.2d 1042, 1045.
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knowledge of Smith’s recent involvement with heroin specifically. These conclusions also
included Detective Adair’s assessment of the defendant’s counter-surveillance behaviors as, when
considered with all of the other suspicious behaviors, consistent with drug trafficking operations.
Finally, the magistrate was made aware of the extremely frequent visits the defendant was making
to a storage locker, several times carrying large safes into and out of the locker. On at least one of
those visits he was accompanied by Smith, and on another occasion the defendant had just returned
home from the locker when Smith left the house to conduct several short-duration meetings around
town.
The majority of activity in the warrant took place in short succession. 	Other than the
historical background section, the entire chronology of events indicating probable cause described
in the affidavit took place over approximately two months. The warrant for 3108 Seclusion Bay
Drive was issued approximately one month after Judge Dickson had already issued a warrant for
5422 Larkspur. While Defendant and Smith had only resided at 3108 Seclusion Bay Drive for
about six days prior to the warrant issuing for that location, so the magistrate was well informed
of the activities of Smith and Defendant preceding the first move. 	The 	affidavit 	also
informed the magistrate of the background of the Defendant and Smith so that she had a full grasp
of the totality of the circumstances. 	Approximately six months prior to the warrant’s issuance,
over three-hundred grams of heroin were found in Smith’s apartment and on the person of his
girlfriend who lived with him. Likewise, Detective Adair was also familiar with Defendant prior
to this investigation. He had information from cooperating witnesses and other investigative
entities within Anchorage indicating that Defendant was involved in upper level heroin sales.
While this information may not stand on its own as substantial bases for probable cause, such
information was provided to the magistrate as additional contextual information for consideration.
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Defendant argues that during the time period from February to March, 2016 there were
insufficient bases to conclude that Smith lived at 3108 Seclusion Bay Drive, and Smith had not
been directly observed again supplying Detective Adair’s dealer with heroin which the court will
address in turn.
Defendant agrees that Smith resided with the Flowers’ on Larkspur, but argues there was
insufficient evidence that Smith moved with the family to 3108 Seclusion Bay Drive. Defendant
argues that the observation by law enforcement on March 18th of Defendant “and others” moving
items from Best Storage to Seclusion Bay was not dispositive.39 However, the identity of the other
individuals is relevant, especially considering Davon Smith was among the individuals with
Defendant moving items to Seclusion Bay. 	Over the course of the next five days, as Detective
Adair avers to the magistrate in his affidavit, the ongoing physical and electronic surveillance of
Defendant, Smith, their vehicles, and 3108 Seclusion Bay Drive led him to conclude that both
Smith and Defendant indeed resided at the new address on Seclusion Bay Drive.
Detective Adair further explained that the visual and electronic surveillance, which had
been ongoing for many weeks, led him to conclude that Smith was residing at 3108 Seclusion Bay.
While Detective Adair only provided one day's in-depth chronology of Smith at Seclusion Bay,
Smith had just moved to Seclusion Bay and the activities of that day were especially relevant to
the probable cause determination. Indeed, Smith was observed leaving 3108 Seclusion Bay Drive
moments after the Defendant arrived home from the suspect storage locker, driving to four
different locations in and around Anchorage, stopping for a few to several minutes, and at least
twice engaging in a short duration meeting with others. Based on Detective Adair’s training and
39 Dkt. 53, at 7.
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experience, the magistrate was properly informed of Adair’s opinions regarding Smith’s ongoing
behaviors.40
Moreover, Adair noted that Smith both departed and returned for the night to 3108
Seclusion Bay Drive following his itinerary of short duration stops around Anchorage. Smith and
Defendant had only moved to Seclusion Bay four days earlier. The magistrate’s reliance on
Detective Adair’s conclusion that, based on physical and electronic surveillance, Smith was
residing at 3108 Seclusion Bay Drive, was properly part of her assessment of the totality of the
circumstances.
The court notes that Smith was not observed directly selling heroin in the month prior to
the warrant’s issuance. However, the magistrate was properly presented with that fact as part of
her probable cause inquiry. She was additionally made aware of the various activities police
observed of Smith since his last heroin sale to Detective Adair, via Adair’s dealer. Indeed, it is not
as if police were unaware of Smith’s whereabouts during this period of time. To the contrary, the
police informed the magistrate of, among other things, the dealer’s communication to Adair that
Smith was in the process of resupplying with heroin. That same day, police observed Smith with
the defendant on the fourth floor of Best Storage. The next day, Smith was observed departing on
his several short duration trips around town just moments after Defendant again arrived home from
another visit to Best Storage. The unusually frequent visits by Flowers II to his storage unit at odd
hours are not read in isolation. On at least five occasions police observed Defendant and his helpers
hauling large safes to and from locker number 4045, with three of those occasions occurring the
week the warrant in question was executed. Defendant was observed removing cash from one of
40 Detective Adair also recalled the two undercover heroin purchases where Adair directly
observed Smith making short duration visits to Adair's known dealer.
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the safes in one of those instances. 	Detective Adair concluded that all of these behaviors taken
together were consistent with behaviors of drug traffickers. The magistrate’s reliance on Adair’s
opinions and conclusions in these regards was properly part of her review of the totality of all of
the circumstances, as they were well chronicled in his affidavit for her consideration.
Considering the length, detail, and multi-faceted nature of the information in Detective
Adair’s affidavit, the magistrate was presented with the totality of the circumstances as they existed
at the time. While it could be true that no one piece of information provided therein rose to the
level of creating probable cause, the many various pieces of the investigation were before the
magistrate for her consideration. This court’s review is not one that searches for a de novo probable
cause determination. Rather, this court simply looks to see if there was some basis for the original
determination and whether that basis was substantial. The court finds that there was a substantial
basis for the magistrate to find probable cause of illegal activity related to 3108 Seclusion Bay
Drive when she issued the warrant.
c. 	The good faith exception would apply to the warrant.
The United States also argues that, if the warrant was invalid, suppression would be
improper under the doctrine of good faith. Defendant disagrees. The court finds that the warrant
was valid when issued, but even if it was not valid, suppression would be inappropriate the officers
acted in good faith when applying for and then relying upon it.
The Supreme Court and the Ninth Circuit have acknowledged that in the case of a later
invalidated warrant, suppression is improper if officers acted in good faith with “objectively
reasonable reliance” on the warrant.41 	The totality of the circumstances will be assessed in
determining good faith, but four per se exceptions-to-the-exception have been laid down.
41 United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013).
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(1) where the affiant recklessly or knowingly placed false information in the
affidavit that misled the issuing judge; (2) where the judge wholly abandons his or
her judicial role; (3) where the affidavit is so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable; and (4) where the
warrant is so facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers cannot reasonably
presume 	it 	to 	be 	valid. 	42
Defendant argues that the first exception applies, contending Detective Adair put forth false
information in two instances which mislead the magistrate. Defendant argues that Adair’s affidavit
falsely described Defendant's trips to and from a storage locker with large safes, at odd hours, as
being “routine.” Second, Defendant contends that Adair failed to inform the magistrate that the
Defendant’s wife was Smith's court-appointed custodian requiring Smith reside with the Flowers.
Both allegations fail to disestablish good faith.
As to the first contention about trips to the storage unit with safes, the court notes the
Defendant carried large safes on at least five occasions to and/or from locker #4045 within a short
time frame in which he had indicated he was resupplying. Other adverbs such as “frequently” or
“often” may also have applied, but semantical quibbling over the use of "routinely" instead of
other adverbs is particularly the flyspecking of an affidavit our Ninth Circuit disfavors.43 Even if
Detective Adair's description was false, it was not false recklessly or knowingly. 	At most, the
affidavit used an imprecise word to describe an indisputedly frequent visitation to the storage
unit.44 Finally, in any event, the terminal element is lacking: the magistrate was not misled. She
42 Underwood, 725 F.3d at 1085.
43 See FN. 29.
44 See Franks, 438 U.S. at 171; see also United States v. Miller, 753 F.2d 1475, 1478 (9th Cir.
1985) (holding that the defendant failed to establish that federal agents exhibited a reckless
disregard for the truth in their search warrant affidavit when it alleged that the agents failed to
check the criminal background of the informant—such allegations amount to no more than
negligence).
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was presented with detailed, sometimes redundant, information with which she could determine
the characterization of the frequency of Defendant’s visits to the storage locker.
With regard to Detective Adair’s omission that Smith was residing with the Flowers’
pursuant to a court order stemming from his other pending drug case, that omission was
immaterial. While omissions are reviewable under the same principle as false statements,45 on
review they must be material so as to remove probable cause before a warrant will be invalidated.46
The addition of this fact does little to contradict the magistrate's finding of probable cause related
to 3108 Seclusion Bay Drive when she issued the warrant as described at length above.
Conclusion
The defendant asked the court to suppress all evidence derived from search state search
warrant #3AN-16-824, which authorized the search of 3108 Seclusion Bay Drive in Anchorage,
Alaska. For the reasons stated above, this motion to suppress evidence should be DENIED.
IT IS SO RECOMMENDED.
DATED this 22nd day of September 2016 at Fairbanks, Alaska.
__s/_SCOTT A. ORAVEC___
SCOTT A. ORAVEC
United States Magistrate Judge
45 United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).
46 See United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985).
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