S.D.Ind.: The sole fact of being a drug trafficker doesn’t provide nexus to house; something has to be shown, and it wasn’t and GFE doesn’t apply

Being a drug trafficker is not enough to search defendant’s home. The government had to show nexus, and it never did anywhere in the affidavit for search warrant. The affidavit for the search warrant was, in fact, so lacking in nexus and probable cause that no reasonable officer could rely on it. United States v. Zamudio, 2018 U.S. Dist. LEXIS 36838 (S.D. Ind. Mar. 7, 2018):

Here, the Affidavit supports the proposition that Jose Zamudio’s home was the drug-dealing headquarters. In their Response, the Government repeatedly refers to Jose Zamudio’s residence as the residence where many drug transactions occurred. While Juan Zamudio is alleged to have picked up money for Jose Zamudio at a Long John Silver’s restaurant, and selling drugs (at the direction of Jose) in a Kroger parking lot, these acts provide no nexus to Juan Zamudio’s residence. Instead, most of the drug-related activity occurred at Jose Zamudio’s home, and none of it is alleged to have occurred at Juan Zamudio’s home. Intercepted wiretaps and police surveillance confirm that 1126 South Auburn Street is the residence where methamphetamine dealings occurred. None of Juan Zamudio’s drug related activities are alleged to have occurred at his residence, rather they are alleged to have occurred in public places.

U.S. v. Walker is also instructive. In that case, the DEA agent’s assertion that drugs or evidence of drug dealing was likely to be found in Walker’s home rested solely on what the agent knew from training and experience, namely, that “drug traffickers generally store their drug-related paraphernalia in their residences.” 145 Fed. Appx. at 555. The Walker court determined there was probable cause based on the DEA agent’s assertion and the defendant’s status as an alleged drug trafficker. The court noted that its ruling “was close to the edge” and that a different result might be warranted dependent on facts that show a hint that another location is used for the participant’s drug-related business. Id. at 555-56. Here, similar factual averments are presented, however, this case crosses the explicit hypothetical edge posed by the Seventh Circuit in Walker. Not only does the Affidavit confirm that another location/residence was used for the drug trafficking activities, but the Government’s Response makes repeated references to drug trafficking activities occurring at Jose Zamudio’s home. (See Filing No. 762 at 3-6.) The fact that Jose Zamudio’s home was used as the drug-dealing headquarters distinguishes this case from other cases finding probable cause solely based on the fact that the defendant is an alleged drug trafficker. There is absolutely no evidence (other than the Affiant’s statement that drug dealers keep evidence where they live) linking Juan Zamudio’s alleged drug activity with the 64 N. Tremont address. In all of the cases cited by the parties, in addition to alleging that the defendant was a drug dealer, there was some other nexus connecting the defendant to the property searched—either a confidential informant reported activity at the residence; or through surveillance drug related activity was observed at the residence; or there was no hint of any other location where defendant would keep materials related to his drug dealings and therefore, it was logical to infer that such materials existed at the defendant’s residence. Because the Affidavit contained no nexus between Juan Zamudio’s alleged drug activities and 64 N. Tremont, and the Affidavit alleges that all of Juan Zamudio’s drug related activity either took place at Jose Zamudio’s residence or in public locations, probable cause does not exist to support the search warrant for his home.

. . .

He asserts that a reasonably well-trained officer would have known that the search was illegal because the Affidavit alleges no nexus or necessary factual averments between the alleged criminal activity and the place to be searched. Id. at 11-13. The Court agrees with Juan Zamudio that the Affidavit contained substantial deficiencies, and that a reasonably well-trained officer would have known that the search was illegal despite the Magistrate Judge’s authorization. There are numerous errors where Juan Zamudio is transposed with Jose Zamudio, and in some instances the transposed names change the entire outcome of who the acts are attributed to.

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