Court: District Court, N.D. California; August 17, 2015; Federal District Court
On August 5, 2015, a hearing was held regarding multiple motions from defendants Purvis Lamar Ellis, Deante Terrance Kincaid, Damien Edward McDaniel, and Joseph Pennymon. The court reviewed motions including requests for bills of particulars, motions to dismiss, discovery of Rule 404(b) evidence, suppression of eyewitness identifications, and various motions to suppress evidence obtained from searches and arrests. The court denied the motions for bills of particulars, denied in part the discovery motion but reopened the issue regarding the identity of a confidential informant, and denied motions related to electronic surveillance and eyewitness identifications. The motions to suppress evidence from a residential search, Ellis's arrest, and digital devices are still under submission, pending further briefing on the confidential informant. The motion to suppress pretrial and in-court identifications is also pending, awaiting supplemental materials. An application for a Rule 17(c) subpoena remains under submission, contingent on the decision for an evidentiary hearing. The defendants are charged with racketeering as members of the Sem City street gang in East Oakland, involved in specific alleged activities in furtherance of their conspiracy.
On January 20, 2013, all defendants allegedly participated in a shooting targeting Victim 1, who was waiting at a bus stop on Foothill Blvd. The following day, defendants Kincaid, McDaniel, and Pennymon were reportedly involved in an assault and shooting of Oakland Police Officer K. (Victim 2) after he approached an apartment complex at 1759 Seminary Drive in an unmarked vehicle. Subsequent police action led to securing the complex and obtaining search warrants for Apartments 108, 110, and 212, based on a confidential informant's information. An additional search warrant for Apartment 112 and an arrest warrant for Ellis were issued on January 22, 2013.
Witness accounts from the January 20 shooting describe a confrontation involving two suspects near 5912 Foothill Blvd. At approximately 3:45 p.m., a witness observed a man in a burgundy leather jacket interacting with another man before the shooting. The witness then saw a second suspect, described as wearing a black beanie and hooded sweater, running with a semi-automatic pistol and shooting at the bus stop. Victim 1 was seen fleeing from Suspect 1, while a second shooter (Suspect 2), described as wearing a skeleton mask and shooting a gray and black handgun, also fired at the victim. The second suspect then escaped in a white car waiting at a nearby traffic light.
A witness observed the first shooter approach the victim but couldn't confirm if he shot the victim at that moment. Afterward, the shooter returned to a white car parked on Walnut, entering the backseat behind the driver. The witness noted the car's license plate and described the driver as a dark-skinned black male in his 20s with long dreadlocks, a thick mustache, and a thin goatee. A police officer later showed the witness a photo of a 2012 Dodge Avenger, which the witness confirmed matched the getaway vehicle. The witness reported hearing approximately 15 gunshots. Police traced the license plate to a Hertz rental car registered to Laron Means.
During the July 22, 2013 preliminary hearing concerning the actions of Kincaid, McDaniel, and Pennymon, OPD Officer Eric K. testified about events from January 21, 2013. After working a Warriors game, Officer K. was instructed to locate a vehicle linked to a previous shooting, based on a tip. He identified the vehicle as a white 2012 Dodge Avenger with the license plate 6VEP025. While working undercover, Officer K. observed a male, later identified as Pennymon, near the complex. After confirming the location, he noticed the suspect vehicle parked behind the apartment complex. As Officer K. attempted to exit, he encountered three individuals: McDaniel approached the passenger side, Kincaid approached the driver’s side window, and Pennymon approached the rear. Kincaid knocked on the window, and after identifying himself as looking for a female, Officer K. engaged in conversation, during which Pennymon remarked about seeing Officer K. make a U-turn earlier.
Officer K. testified about an encounter where he was looking for a female named Keisha, but McDaniel stated there was no one by that name. During the interaction, McDaniel and Kincaid looked inside Officer K.'s car and questioned him while he had not yet identified himself as a police officer. Officer K. observed that a Glock handgun was partially visible in his vehicle. The situation escalated when Kincaid and Pennymon brandished firearms at Officer K. from a close distance, with McDaniel also pointing a gun through the window. Officer K. exited his vehicle, remaining vigilant for additional threats while noting the suspects' physical characteristics and demeanor.
Kincaid demanded Officer K. surrender his firearm, and a struggle ensued as McDaniel attempted to remove Officer K.'s weapon. Kincaid struck Officer K. multiple times with a gun, while McDaniel fired at Officer K., injuring his wrist. Officer K. identified himself as a police officer, but Kincaid dismissed this, continuing the assault before the suspects fled. During the altercation, they allegedly took two of Officer K.'s firearms. As McDaniel attempted to escape, Officer K. struggled with him until he managed to flee as patrol units arrived.
Officer K. was taken to the hospital for treatment of a gunshot wound and head lacerations, receiving morphine for pain. After family visitation, Officer K. was shown a photo lineup, which included an image of Pennymon among five others, but he did not identify Pennymon as one of the assailants.
On January 24, 2013, Officer K. identified Kincaid and McDaniel from three separate photo arrays shown at the Criminal Investigation Division, none of which included Pennymon. On February 21, 2013, Officer K. identified Pennymon from a six-pack photo lineup that featured his recent booking photograph, after requesting that images of individuals wear black hooded sweatshirts to reflect the attire of the third assailant during the shooting.
The police response to the incident began on January 21, 2013, at 6:26 pm when Officer K. was shot. Initial efforts included securing the perimeter and gathering witness descriptions of the suspects. By 8:34 pm, a search team was en route to 1759 Seminary based on tips regarding the suspects. SWAT was later deployed to clear Apartment 110 after occupants were seen leaving, and by 10:41 pm, searches continued in nearby areas.
The search warrant for Apartments 108, 110, and 212 was signed by Judge Homer at 1:05 am on January 22. SWAT initiated entry into Apartment 212 at 1:50 am, utilizing loudspeakers and bean bag rounds to control the situation, breaching the door at 2:07 am. A robot and K-9 units were deployed, confirming no one was present. Gas canisters were later used, and the apartment was cleared by 2:36 am.
The search revealed three pistols, including firearms taken from Officer K., keys to a rental car, cell phones, and boxer shorts containing DNA matching defendant Ellis. Officer Jason Anderson's search warrant affidavit included information from a confidential informant, which was redacted and is subject to a sealing order.
X provided Officer Valle with critical information regarding the attempted murder of Officer K. X stated that shortly after the incident, individuals known as "Tay Tay" (Deante Kincaid) and "Lib Dame" (Damien McDaniel) shot someone in the driveway of an apartment complex. "Lib Joe" and "B.O.T." (Purvis Ellis) were also present during the shooting. X reported that Kincaid shot at a police officer and that McDaniel fled the scene. Officer Valle believed Kincaid had hidden the firearm used in the shooting in Ellis's apartment.
Officer Valle had multiple discussions with X about the residents of 1759 Seminary Avenue, including Kincaid, McDaniel, Ellis, and others. Valle linked a Dodge Avenger, matching the description of a vehicle used in the Foothill Boulevard shooting, to B.O.T. and noted its license plate. After Officer K. was shot, Valle met with X, who identified Kincaid, Ellis, McDaniel, and another individual, Joseph Pennymon (identified as "Lib Joe"), from booking photos.
On January 22, 2013, a search warrant was executed for Apartment 112 at 1759 Seminary Avenue, leading to Ellis's arrest by the OPD Tactical Team. During the arrest, a mobile phone was recovered from Ellis, and additional personal items, including an iPhone 5 and a ZTE cell phone, were documented. An arrest warrant for Ellis was issued later that day, with a probable cause affidavit detailing the background facts and evidence, including the recovery of two Glock handguns from a different apartment linked to Ellis.
The affiant linked the recovery of firearms and information from a confidential informant to Ellis's involvement in the assault and attempted murder of Officer K. Historical data indicated that Ellis had prior associations with the violent Gas Team gang, was involved in frequent shootings, and had previously been the subject of wiretaps and search warrants that uncovered firearms. A June 6, 2008 search warrant executed by Oakland Police Lieutenant T. Jones on a vehicle believed to be storing weapons led to the recovery of four assault rifles from a Lexus SC 400, registered to Jabulani Williams, who resided at 5944 Bromley. The vehicle was parked near Ellis's known residence, and wiretap evidence indicated that Ellis admitted ownership of the rifles. Although Ellis faced a prior conviction for possession of assault rifles, he contended that he was convicted instead for possession for sale of cocaine base, resulting in an 8-year prison sentence after entering a no contest plea on October 14, 2009.
In subsequent criminal proceedings, Ellis was charged in state court as a felon in possession of a firearm. His attorney requested the affidavit for the search warrant related to Ellis's apartment, but before the documents were produced, the Alameda County District Attorney's office dismissed all charges, leading to Ellis's release. In December 2013, Ellis and three co-defendants were indicted federally, charged with Racketeering Conspiracy under 18 U.S.C. 1962(d), which encompassed a range of criminal activities, including murder and drug offenses, with specific allegations of conspiracy to commit murder and attempted first-degree murder related to Victim 1 on January 20, 2013.
Count 2 charges all defendants with Attempted Murder in Aid of Racketeering (18 U.S.C. 1959(a)(5)) for attempting to kill Victim 1 on January 20, 2013, to enhance their position in Sem City. Count 3 charges them with Assault with a Dangerous Weapon Resulting in Serious Bodily Injury (18 U.S.C. 1959(a)(3)) for the same incident, resulting in serious injury to Victim 1. Count 4 accuses them of Maiming in Aid of Racketeering (18 U.S.C. 1959(a)(2)), also related to the attack on Victim 1. Count 5 involves the Use/Possession/Brandish/Discharge of a Firearm in Furtherance of a Crime of Violence (18 U.S.C. 924(c)(1)(A)), for using a firearm during the violent crimes mentioned in previous counts.
Count 6 charges defendants Kincaid, McDaniel, and Pennymon with Assault with a Dangerous Weapon Resulting in Serious Bodily Injury (18 U.S.C. 1959(a)(3)) for assaulting Victim 2 on January 21, 2013, to gain status in Sem City. Count 7 concerns the Use/Possession/Brandish/Discharge of a Firearm in Furtherance of a Crime of Violence (18 U.S.C. 924(c)(1)(A)) related to the assault on Victim 2. Count 8 charges Kincaid with Felon in Possession of a Firearm (18 U.S.C. 922(g)(1)) for possessing three semiautomatic handguns on January 21, 2013. Count 9 charges McDaniel with the same offense for possessing three semiautomatic handguns, two of which were also linked to Kincaid’s possession.
Defendants filed motions for a bill of particulars, with Ellis and McDaniel seeking clarification on behalf of all defendants, and Kincaid moving to dismiss or alternatively for a bill of particulars. The government opposed these motions. The court denied the motion for particulars regarding when each defendant joined the conspiracy, emphasizing that defendants cannot use this motion for full discovery of the government’s evidence. The indictment alleges the conspiracy spanned from around 2007 to December 2013, and the court noted that uncertainty about the exact dates does not invalidate the indictment, provided that overt acts limit the conspiracy's timeframe.
The indictment specifies a clear beginning and end date for an alleged 8-year conspiracy involving the Sem City gang, distinguishing it from other cases with vague time frames and multiple conspiracies. Unlike past cases, such as United States v. Alvarez and United States v. Cerna, where defendants faced ambiguity regarding the duration and specifics of the alleged conspiracies, this indictment provides sufficient detail to inform defendants of the charges, allowing for defense preparation and prevention of double jeopardy. Requests by defendants for the identities of alleged gang members, co-conspirators, and specific details regarding the conspiracy's impact on interstate commerce are denied, as the Ninth Circuit does not require such detailed information in a bill of particulars. The court emphasizes that a "bare bones" indictment is acceptable if it clearly outlines all essential elements of the crime, as affirmed in United States v. Rodriguez. Additionally, the motion for a bill of particulars regarding the racketeering acts in Count One is also denied, with the court affirming that the indictment adequately states the elements required for a RICO conspiracy charge under 1962(d).
In **United States v. Fernandez**, the court determined that an indictment generally suffices to outline the elements of an offense, but mandated the government to disclose specific overt acts and details of racketeering activity related to Count One. This includes providing dates, whether charges were filed, and convictions for activities such as murder, robbery, drug distribution, sex trafficking of minors, enticement of minors into prostitution, and fraud involving identification documents. These disclosures must occur within thirty days.
The motion for a bill of particulars regarding the alleged violent crimes in aid of racketeering (VICAR) under 18 U.S.C. § 1959 was denied, as the indictment sufficiently alleged the necessary elements to enable the defendants to prepare their defenses and avoid trial surprises.
Count Two alleges that Sem City is an ongoing criminal organization, with defendants attempting to murder Victim 1 to maintain their position in the organization. Count Three details an assault on Victim 1 with a dangerous weapon, while Count Four addresses the maiming of Victim 1. Count Six involves the assault of Officer K. with a dangerous weapon, also in aid of racketeering.
Defendants’ requests for detailed discovery were deemed unnecessary as full discovery typically negates the need for a bill of particulars. The court ordered the government to disclose specific information regarding overt acts related to the 1959 counts as previously agreed.
Regarding coconspirator statements, defendants’ motions to specify the timing of their involvement in Sem City were denied. The court will implement a protocol for notifying defendants of such statements at trial, although no immediate disclosure is required due to the ongoing discovery process. Lastly, motions to clarify which defendants are considered principals or aiders and abettors were denied, as federal indictments can charge a defendant in both roles.
The court found that the indictment does not present a risk of convicting defendants for crimes other than those charged by the grand jury, referencing United States v. Solis to emphasize the importance of proper charge specifications. It determined that the RICO count is distinct from the VICAR counts, addressing double jeopardy concerns by stating that prosecution for RICO conspiracy and predicate offenses is permissible under the Double Jeopardy clause since RICO addresses structural conduct separate from predicate offenses.
Defendants' request for a bill of particulars related to the government's theory of criminal liability for special sentencing factors was denied, as full discovery was deemed sufficient without requiring specific disclosure of the liability theory. Similarly, their motions regarding the firearm specifications in Counts Five and Seven, and prior felony convictions in Counts Eight and Nine, were also denied, with the court noting that the indictment's details and provided discovery offered adequate notice.
In terms of discovery, the government acknowledged its intention to introduce prior arrest evidence for defendant Ellis under FRE 404(b), and it will disclose relevant wiretap evidence from a June 2008 investigation within specified timeframes set by the court.
The court initially denied the defendants' request for disclosure of a confidential informant's (CI) identity and communications. After further consideration and recognizing the government's reliance on the CI’s communications in opposing several motions to suppress, the court vacated its earlier denial and reopened the motion for disclosure. The original sealing of the search and arrest warrant affidavits in November 2014 was based on an ex parte application without a thorough briefing or hearing regarding the permanence of the seal or the danger to the informant. The court reviewed the unredacted affidavits in camera and found the redactions necessary to protect the informant's identity and related information.
Given the defendants' articulated need for disclosure to challenge probable cause affidavits, the court will reconsider the motion, emphasizing the lack of a comprehensive record on whether continued nondisclosure is advisable. The court will evaluate several factors, including the informant's involvement in the criminal activity, the relevance of the informant’s potential testimony to the defendants' defense, and the government’s interest in maintaining confidentiality.
The government is ordered to file a supplemental brief addressing specific concerns regarding the informant's safety, participation in the charged crimes, potential trial testimony, knowledge of exculpatory evidence, and any impeachment material related to the informant. The government must also clarify whether it intends to introduce any evidence from the informant at trial.
Legal authority for restricting defendants' ability to contest probable cause determinations hinges on the confidentiality of the informant’s identity and communications with law enforcement. The court emphasizes the necessity of understanding the informant's potential witness status regarding other crimes related to the racketeering activity, as these details are not included in the indictment, complicating the assessment of the informant's role and the balancing of interests as required by Roviaro v. United States.
The defendants’ motion compelling the government to disclose all information regarding electronic surveillance is denied as moot due to the government’s prior disclosures. Further discovery requests regarding this information will be addressed within sixty days unless an alternative timeline is agreed upon.
Regarding motions to suppress eyewitness identifications, Pennymon’s motion is denied after the court finds that the photo array was not suggestive, as all individuals appeared similar in age and complexion. The identification procedure was deemed reliable despite the initial inability of an officer to identify Pennymon due to circumstances at the time. In contrast, Ellis’s motion to suppress pretrial and in-court identifications is still pending, with the government required to produce relevant audio transcripts within thirty days following the hearing.
The government is required to file a supplemental affidavit with newly available transcripts and may submit a surreply addressing issues raised by those transcripts. Ellis has seven days to respond to the surreply before the matter is taken under submission.
The court denied the defendants' motion to suppress evidence obtained from an alleged illegal search of residential curtilage, citing a lack of Fourth Amendment violation. The defendants claimed that Officer K trespassed by entering the apartment's driveway and parking lot, which they argue are within the property's curtilage. However, the court noted that the defendants did not demonstrate a possessory interest in these areas to establish standing for a Fourth Amendment claim, as per Rakas v. Illinois. The burden of proof lies with the proponent of the motion to show that their Fourth Amendment rights were violated, and legitimate expectations of privacy are generally tied to the right to exclude others from property.
Although there is no Ninth Circuit authority directly addressing tenants' rights to exclude law enforcement from common areas under the trespass theory since United States v. Jones, precedent indicates that apartment dwellers lack a reasonable expectation of privacy in common areas, as established in United States v. Nohara. The defendants' reliance on state civil law to assert a possessory interest in common areas does not align with established legal standards, which do not extend a tenant’s right to exclude others beyond their leased apartment.
A landlord without a present possessory interest lacks the standing to prevent a prescriptive easement on their property and cannot have such an easement established against their future reversionary interest, as established in Allred v. Harris. Generally, landowners and tenants possess a fundamental right to exclude trespassers from private property. In Smith v. Cap Concrete, Inc., it was determined that the proper plaintiff for a trespass action is the person in actual possession of the property, and that out-of-possession owners can pursue actions for waste. In this case, unlike the tenant in Allred who could seek an injunction against picketing, the defendants failed to demonstrate they had the landlord's authorization to secure the apartment's common areas. The defendants referenced a city ordinance defining a “Rental Unit” to assert tenants' interests in common areas; however, this does not imply tenants can exclude others, including law enforcement, from these spaces. California courts have rejected the notion that warrantless entry into common areas is unconstitutional. In People v. Seals, it was affirmed that police may enter common hallways without a warrant while performing their duties. The ruling applied a property-based Fourth Amendment analysis, indicating that even if police are considered trespassers, their actions do not violate constitutional protections.
The Fourth Amendment prohibits unreasonable searches rather than mere trespasses, establishing that a simple trespass alone does not invalidate a subsequent search or seizure. Court precedents, including Seals and Howard, affirm that entry into common areas of an apartment, even through a locked door with a manager's consent, does not constitute a violation of the Fourth Amendment. The courts indicate that tenants cannot exclude others from shared common areas, including hallways, driveways, and parking lots, as these spaces do not enjoy the same privacy rights as individual apartments. Defendants failed to demonstrate that state law supports a tenant's right to exclude others from these common areas. Additionally, shared driveways and parking lots are not protected as curtilage under established legal authority. The cited state court cases regarding trespass do not address tenants' rights to exclude others from common areas without demonstrating authorization to restrict access. Cases like Planned Parenthood v. Wilson illustrate that private property owners can limit access to their parking facilities, further supporting the notion that tenants lack exclusive control over shared spaces.
In a car accident case, the plaintiff was deemed a trespasser after driving into a private alley without any obligation or business with the property owner or tenants. The court addressed whether the defendants could invoke a Fourth Amendment challenge regarding Officer K.’s entry into the driveway and parking lot. It concluded that the Fourth Amendment does not protect against mere technical trespasses. Justice Scalia, in Jones, clarified that the amendment is concerned with actual searches, not just any technical trespass that results in evidence gathering. Justice Alito's concurring opinion refuted the notion that reviving the trespassory test based on 18th-century tort law would broaden Fourth Amendment protections to all technical trespasses. At common law, unauthorized intrusions were actionable, but trespassing on open fields, as opposed to the curtilage of a home, does not fall under the Fourth Amendment's protections. Scalia distinguished between a GPS tracking device on a vehicle, deemed unconstitutional, and the lawful intrusion in Oliver, where information-gathering in an open field did not constitute a Fourth Amendment search. The court reaffirmed that while trespassing on private property may be a search, it is not considered a constitutional search unless it involves the specific areas enumerated in the Fourth Amendment.
The court denied the motion to suppress evidence obtained by Officer K. after determining that the driveway or parking lot of the apartment complex does not qualify as constitutionally protected curtilage under the Fourth Amendment. Consequently, Officer K.'s observation of the getaway car and its license plate did not constitute an illegal search. Additionally, the court applied the independent source doctrine, concluding that the discovery of the getaway car was independent of any alleged constitutional violation since it occurred during the police response to Officer K.'s shooting. The government's argument established that the investigation into the shooting provided a separate basis for the discovery of the vehicle and subsequent searches of apartments, thus justifying an exception to the exclusionary rule. The court noted that it would address any challenges to the search warrants in a separate ruling, and outlined pending motions for further consideration, including those related to the disclosure of a confidential informant and the suppression of various forms of evidence.
