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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)