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United States v. Delli

United States District Court, D. Utah, Central Division

June 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JIM PAUL DELLI, Defendant.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM SENIOR JUDGE UNITED STATES DISTRICT COURT

         I. INTRODUCTION

         Defendant Jim Paul Delli (sometimes “J.P. Delli”) is charged in a superseding indictment with one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and one count of possession of marijuana with intent to distribute under 21 U.S.C. § 841(a)(1). On January 18, 2017 at 3:00 a.m., a Unified Police SWAT team served a no knock search warrant at Mr. Delli's home at 743 N. Los Angles St., Salt Lake City, Utah. The warrant was granted based on the Affidavit of Unified Police Detective Walter Jarvis. Service of the warrant yielded cash, firearms and marijuana.

         Asserting that the affidavit in support of the warrant is deficient and does not establish probable cause that instrumentalities of a crime will be found at his home, Mr. Delli moves to suppress evidence obtained pursuant to the search.[1]

         II. DISCUSSION A. Legal Standard

         Mr. Delli asserts that his Fourth Amendment rights were violated because the search of his home was based on a warrant lacking in probable cause. “The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures.” United States v. Guardado, 699 F.3d 1220, 1222 (10th Cir. 2012). The issuing magistrate is to determine whether there is probable cause to support a search warrant.

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal quotation marks omitted). The reviewing court “is simply to ensure that the magistrate had a ‘substantial basis for ...conclud[ing]' that probable cause existed.” Id. (citation omitted). The Tenth Circuit has summarized the relevant law as follows.

In order to issue a search warrant, a magistrate must determine that probable cause supporting a search exists. An affidavit establishes probable cause for a search warrant if the totality of the information it contains establishes the fair probability that contraband or evidence of a crime will be found in a particular place. The affidavit must show a nexus between ... suspected criminal activity and the place to be searched, and a court may not arrive at probable cause simply by piling hunch upon hunch. Searches conducted pursuant to a warrant are favored, and, as such, the magistrate's determination that probable cause exists is entitled to great deference.

United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009), cert. denied, 558 U.S. 1156 (2010) (internal quotation marks and citations omitted).

         B. Informant's Veracity, Reliability and basis of Knowledge

         Mr. Delli's position, that Detective Jarvis' Affidavit lacks information to determine the veracity, reliability and basis of knowledge of the confidential informant (“CI”), is rejected.

         The CI reported to police that J.P. Delli and Justin Delli, his brother, were selling marijuana and dabs. ECF No. 22-1 at 5. The CI said that both men are always armed and carry firearms on their person, in their vehicle, and in the house. Id. The CI also reported that J.P. Delli drives a black Suburban and uses that vehicle to distribute and transport narcotics. Id.

         Detective Jarvis identified, through unspecified means, the house of the men. Id. And during surveillance of the home J.P. Delli was observed driving the Chevy Suburban described by the CI. Id. at 5-6. The identity of the CI was known to Detective Jarvis who personally met with the CI and determined that he was not impaired and had a clear mind. Id. at 5. Although Detective Jarvis did not specifically state how many times the CI had previously given reliable information, he did ...


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