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United States v. Jimenez

United States District Court, Tenth Circuit

September 24, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE G. JIMENEZ, Defendant.

MEMORANDUM AND ORDER

THOMAS MARTEN, District Judge.

The court has before it defendant Jose Jimenez's Motion to Suppress and for Franks Hearing (Dkt. 30). The court held a hearing on September 20, 2013 and is now prepared to rule.

I. Background

Jimenez, whose street name is "Creep" or "Creeper, " is charged with five counts of being a felon in possession of a firearm. The affidavit supporting the application for a search warrant provided the following information. At about 3:00 p.m. on May 16, 2013, a shooting occurred between the occupants of a blue Mercury Mountaineer and a white four-door car at 13th and Broadway in Wichita, Kansas. Officers responding to the scene found broken glass and several.223 caliber cartridge casings in the Family Dollar parking lot at that intersection. Within minutes of the shooting, the Mercury Mountaineer was involved in a hit and run accident at 11th and Waco. The Mountaineer contained numerous bullet holes and fresh blood inside the vehicle. By the time the officers responded to the scene, the occupants of the Mountaineer had already left the scene. The owner of the Mountaineer, Kendra Davis, arrived to inquire about her vehicle. She would not identify the persons who had driven her vehicle or provide any helpful information to the officers. Meanwhile, one police officer discovered surveillance footage shot from 1442 Broadway, which showed a white Ford Focus traveling north on Broadway, then turning east on 14th Street around the time the shooting occurred.

The next day, Detective Jason Bartel contacted Wanda Edwards, who stated that Kendra Davis had been at her residence at 1542 West 13th Street to do laundry the day before. Kendra was with her boyfriend, Monte Alford, and a second man. Monte and the other man left to get laundry detergent, but they returned a short time later because Monte had been shot in the right shoulder. Wanda told Detective Bartel that Monte kept repeating he was shot by a man named "Nice." Wanda stated that Monte and Kendra had been having trouble with Nice because Nice wanted to date Kendra. Wanda stated that Nice is a black male, twenty to thirty years old, 5'11" tall and about 180 pounds. She also stated that Nice is known to drive a white four-door vehicle.

On the same day, officers were contacted by F.C., who thought he had seen the suspects involved in the shooting at the Family Dollar. At some time between 2:30 and 3:00 p.m. on May 16, while working at a house at 1449 N. Topeka, F.C. saw two black males in front of 1454 N. Topeka. One carried a shotgun to a small white vehicle parked in front of 1454 N. Topeka. F.C. heard one of the men say "let's go, let's go, " and then they both got in the small white car-described by F.C. as possibly being a Ford Focus-and drove off. A few minutes later, F.C. heard three to five gunshots.

Also on May 17, officers received an anonymous tip that the suspects involved in the shooting lived in a white house south of 1544 N. Topeka. The officers believed the house at 1540 N. Topeka fit this description and set up surveillance there.

On May 21, at 9:00 a.m., Detective Chad Beard was monitoring the residences at 1540 and 1454 N. Topeka, when he observed a black male of approximately twenty-five to thirty years of age standing in the doorway at 1540 N. Topeka. A maroon Oldsmobile Alero was parked outside. After walking between the car and the house a couple of times, the man got into the car and drove south on Topeka. The driver stopped at 15th Street and reversed the car, going the wrong way on the one-way street. Officer Troy Bussard activated his lights and siren and attempted to stop the Alero, which sped off south on Topeka Street. The Alero stopped in the east alley behind 1446 N. Topeka. Officer Bussard saw the man exit the car, jump a fence and run west towards Topeka Street. A witness told officers that the man had run into the residence at 1454 N. Topeka. The homeowner at 1454 N. Topeka was Sylvester Henry. He allowed the officers in, where they found Robert White hiding in the attic. Henry identified White as "Nice." Inside the Alero, Detective Beard found a loaded sawed-off twelve-gauge shotgun, a plate with cocaine residue on it, a digital scale, and marijuana. Detective Reichenberger searched Henry's residence and found a black handgun and a loaded thirty-round magazine.

Officers interviewed Henry for an hour and a half.[1] According to the warrant affidavit, Henry told officers that Nice and another man named "Creep" were involved in the shooting at 13th and Broadway on May 16. He said that both men were Crip gang members and he had seen them both with hand guns and assault rifles. Henry stated that Creep and his girlfriend, Brittney White, live at 1540 N. Topeka. According to Henry, Brittney drives the white Ford four-door vehicle that was used in the shooting. Henry said that just prior to the shooting, Nice was at his residence with a black AR-15, and Creep arrived in Brittney's vehicle. A short time after Nice and Creep left Henry's house, Henry heard approximately ten gun shots and received a phone call from Nice, who advised him that Brittney and another female were on their way to Henry's residence to pick up the rest of their property and guns. Henry said that Creep contacted him the next day, asking for his help in starting Brittney's car. Henry said the vehicle appeared to be hidden with its tags removed in a garage at 1540 N. Topeka. According to Henry, the car was still locked in the garage on May 19, the last day he saw it.

Also on May 21, Detective Bartel contacted three men at 1559 N. Topeka. Two of the men said that on May 16, they had seen a white Ford Focus speed out of the alley behind 1540 N. Topeka heading south, stop at 1454 N. Topeka (Henry's house) for a few minutes, and then speed off south on Topeka Street. The same two men said that a short time later they heard four to five gunshots and then observed the white Ford Focus traveling east on 14th Street. The third man stated that he had then observed the white Ford Focus speeding north in the east alley of Topeka Street. All three men stated that the white Ford Focus belonged to the residents of 1540 N. Topeka and that it was parked behind the residence on May 16.

Based on this information, the officers applied for and received a search warrant for the residence at 1540 N. Topeka. The warrant listed the following items to be seized: firearms, ammunition, photographs, cell phones, and "indicia of occupancy, residency, rental and/or ownership of the premises described herein, including, but not limited to, utility and telephone bills canceled envelopes, rental purchase or lease agreements, and keys." In executing the warrant, the officers found crack cocaine in a knotted plastic baggie. Officers received a second warrant listing additional items to be seized during their search: crack cocaine, U.S. currency associated with the sale of crack cocaine, and "packaging material, scales, paraphernalia, pagers, portable phones, and surveillance equipment used in association with the sale of crack cocaine."

According to the search inventory, in executing the search warrants, officers seized photos, firearms, ammunition, drug paraphernalia, cocaine, latent prints, DNA swabs, a computer, firearm equipment and parts, documents and indicia of residency, and a BB gun.

Defendant Jimenez argues that two statements attributed to Sylvester Henry in the affidavit supporting the warrant application were false. Jimenez also argues that Henry's history, which the affidavit omitted, would have reduced his reliability and veracity to the point that probable cause would not have been established. Jimenez argues further that Henry himself contradicted several of the statements attributed to him in the affidavit, and that the officer intentionally or recklessly omitted these contradictory statements. Even if the ...


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