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United States v. Kafuku

United States District Court, D. Utah, Central Division

December 7, 2018



          Clark Waddoups United States District Court Judge.

         Before the court is Defendant Pitshou Yunga Kafuku's Motion to Suppress. (ECF No. 17.) Mr. Kafuku alleges that he was subject to an unlawful search and that the Fourth Amendment exclusionary rule requires this court to suppress all evidence found during the search of his residence on March 15, 2018. During the search, officers located apparently fraudulent documents, equipment for creating such documents, counterfeit currency, and other contraband (Complaint, ECF No. 1), the discovery of which items eventually led to Mr. Kafuku's indictment on the crimes alleged in this action. (Indictment, ECF No. 1.) The court heard evidence on this matter on September 5, 2018 (ECF No. 36), received briefing, and heard further evidence and oral argument on November 16, 2018. (ECF No. 54.) Having considered the evidence and the parties' arguments, and otherwise being fully informed, the court concludes that the warrant was invalid but that Mr. Kafuku does not have standing to bring this Fourth Amendment challenge and therefore DENIES Mr. Kafuku's Motion.


         On March 15, 2018, approximately ten officers from the Unified Police Department searched 1059 East 600 South #33, an apartment at the Brigadoon apartment complex in Salt Lake City, Utah (“the Brigadoon apartment”). (Tr. 6, 11, 18; Exhibit 3.) The officers conducted the search pursuant to a warrant that Detective Todd Madsen[1] authored and that Justice Court Judge Paul C. Farr signed. (Tr. 19; Exhibit 3.) The warrant was a part of an investigation into a stolen vehicle.

         To secure the warrant, Detective Madsen submitted an electronic warrant and affidavit by email to the judge. (Tr. 42: 17-21.) He used “a template” to “fill in all of the pertinent information and then” sent it “to the on-call judge.” (Tr. 42: 21-23.) The affidavit stated,

On Tuesday, March 13, 2018, detectives from the Unified Police Department were notified of the possible location of a stolen vehicle taken from Las Vegas Nevada sometime in February 2018. Based on the nature of the theft, and the fraudulent means surrounding how the vehicle was obtained, detectives applied for and w[ere] granted a GPS tracking warrant to place on the vehicle and safely take any suspects into custody, as well as retrieve the keys to the car, which were taken in the vehicle at the time of theft.

(Exhibit 3.) The affidavit then details officers' efforts to track the vehicle over a two-day period, during which time they were unable to execute a traffic stop of the vehicle but learned that it had on occasion parked at the Brigadoon apartment. The affidavit makes no reference to any evidence other than the keys, but asserts that

[d]etectives have identified three separate drivers of the stolen car on different occasions and never [have been] able to safely effect an arrest. The keys to the vehicle have been confirmed to be inside the apartment of #33 and police would like to make the arrests of several offenders of possession of a stolen vehicle, as well as retrieve the keys for the car to the owner.

(Exhibit 3.) Upon the affidavit and no other evidence, the magistrate signed the warrant just eight minutes after receiving the application and without any further communication with Detective Madsen. (Tr. 43: 3-16.) The warrant authorized detectives to search for the following: “Keys to a stolen vehicle, any other evidence of the auto theft, and any and all illegal contraband located during the scope of the search for keys.” (Exhibit 3.)

         During the evidentiary hearing on the Motion, Detective Madsen, Detective Kresdon Bennett, and Detective Jaren Fowler testified as to their investigatory efforts and the results of the search. The officers also testified about their understanding of Mr. Kafuku's interest in the apartment. Mr. Kafuku also addressed his interest in the apartment. Detectives Madsen and Bennett also provided details of the theft and their understanding of how theft by fraud occurs and as a result what evidence could be expected and where it could be expected. Notably, however, all of those views were justification after the warrant had issued and none were communicated in the affidavit upon which the warrant was based. The court details the testimony below. Much, if not all, of the testimony is irrelevant to the issue of whether the warrant was properly issued, but it is provided for the context in which the court resolved the motion to suppress.

         The Investigation

         Detective Madsen explained that on March 13, 2018, he “received a tip about an auto theft or possible location of a stolen vehicle.” (Tr. 6: 19-21.) Detective Madsen then “made some phone calls and [did] some investigative work on that specific case to the Las Vegas Metropolitan Police Department.” (Tr. 7: 5-8.) Detective Madsen understood from his conversation “that the vehicle was listed on NCIC as stolen out of the Las Vegas McCarran Airport.” (Tr. 7:11-13.) He learned “that the vehicle was obtained by fraudulent means, ” specifically that it “was taken or obtained using the identity of another person who is . . . a frequent renter of vehicles from this specific company, ” and that the person under whose name the car was rented had been “contacted about returning the car a few weeks later and stated that he did not rent a vehicle from Las Vegas nor had he been in Las Vegas.” (Tr. 7: 14-21.)

         According to the tip Detective Madsen received, the allegedly stolen vehicle was located at an apartment complex in Salt Lake City, in the Millcreek area (“the Millcreek complex”). (Tr. 8: 3-5, 30: 21-25.) “[O]n a couple of different occasions, ” officers “went to the [Millcreek] complex to try to locate a vehicle within several hours of each other.” (Tr. 8: 8-10.) Another officer in Detective Madsen's precinct “locate[d] the vehicle that evening.” (Tr. 8: 11-13.) The officer observed the vehicle at the Millcreek complex. (Tr. 31: 1-9.) But law enforcement did not seize the vehicle while it was parked at the Millcreek complex.[2] (Tr. 31: 20-24.) Instead, “[b]ased on the information that [Detective Madsen] received from Las Vegas and [because] there was a nexus to another crime, ” Detective Madsen “authored a search warrant for a warrant for GPS tracking.” (Tr. 8: 16-19; Exhibit M.) “[S]everal hours” passed between the time that Detective Madsen received the tip and that he got the GPS monitor (Tr. 30: 3-19), but Detective Madsen requested the warrant before any officer actually saw the vehicle. (Tr. 32: 11-14.) After placing the tracking device on the vehicle, officers “electronically monitored the vehicle, where it was going to and from, from the apartment to other locations around Salt Lake Valley.” (Tr. 8: 20-9: 4.)

         While tracking the allegedly stolen vehicle, officers did not stop it because there is a “climate right now” in which “there is a propensity for fleeing[, ] which is an extreme danger to the public and violation” of UPD policies.[3] (Tr. 9: 7-10.) Instead, officers “followed the vehicle for . . . about 24 hours” until “it landed back at a specific apartment in Salt Lake City on multiple occasions and [they] set up surveillance at that apartment to wait for the vehicle to again go mobile.” (Tr. 9: 15-20.) Detective Madsen observed “the vehicle go mobile with two different occupants, drivers, ” on two different occasions. (Tr. 10: 1-3.) Officers surveilled the car “around town but again [were] not able to safely take [anyone] into custody given the circumstances.” (Tr 10: 3-5.)

         Detective Madsen testified that even when the vehicle was stopped for long periods of time, in those instances there were no officers who “were actually in the area.” (Tr. 24: 15-18.) For instance, he testified that officers “were all at home not working” while “the car . . . stopped in West Valley or Magna for four or five hours.” (Tr. 34: 24-25.) And “when [they] were out actively surveilling the vehicle physically, as well as GPS monitoring, there was not a time during that tracking where [they] could get into the area of the vehicle where it stopped long enough where we could safely take somebody into custody.” (Tr. 34: 23-35: 6; see also Tr. 109: 11-15.) When the vehicle stopped overnight, Detective Madsen was at home. (Tr. 35: 8-13.) He admitted that other officers may have been able to stop the vehicle. (Tr. 35: 14-16.) When defense counsel asked if perhaps it simply was “not a huge priority, ” Detective Madsen responded, “Sure.” (Tr. 35: 17-19.)

         Detective Bennett was one of the officers tasked with “surveillance on the vehicle in the attempted stop of that vehicle once it stopped at a location.” (Tr. 92: 3-9.) He testified that, at one point, the vehicle stopped at a gas station where he “attempt[ed] to get a visual of the occupants, ” but “then it left that gas station and drove to” the Brigadoon. (Tr. 92: 22-25.) While conducting mobile surveillance, Detective Bennett's view of the vehicle was impaired by his need “not to get too close” so that he did not “get [himself] identified as law enforcement, ” especially because he was the only officer in the area and did not have backup. (Tr. 93: 4-8, 13- 21.) According to departmental policy, he could not conduct a stop at the gas station because he did not have backup. (Tr. 93: 25-94: 7.) Detective Bennett did not personally see the vehicle at the Brigadoon and did not see the occupants get out. (Tr. 95: 1-16.)

         Expecting the vehicle to return to the Brigadoon apartment, [4] officers waited in that location and eventually “identif[ied] the driver[5] of that particular occasion walk into a specific apartment at the complex.” (Tr. 10: 10-17.) Initially officers had not been able to see which apartment they were entering, so a part of the investigation was determining which specific apartment. (Tr. 55: 13-22.) But “when the person . . . returned to the apartment, ” officers observed “the keys . . . in the hand of the driver . . . walking into the apartment so [officers] . . . knew there were keys to the vehicle, they were observed in the hand of the driver walking into that specific apartment.” (Tr. 20: 5-14.) A detective “followed the people from the vehicle up to the apartment and walked by it as they were going in.” (Tr. 111: 5-7.) Upon this observation, Detective Madsen “authored a search warrant for the apartment and was granted that search warrant.” (Tr. 10: 21-22.)

         The Brigadoon apartment complex has a long driveway, approximately 478 feet from 600 South leading to the complex. (Tr. 36: 20-37: 2, 114: 23:15: 5; Exhibit G.) Officers waited on 600 South, while the vehicle returned home via the driveway. (Tr. 38: 6-11.) There was also a parking structure on the property. (Tr. 39: 6-8.) From 600 South, officers could see the vehicle occupants walking from the parking structure to the building. (Tr. 39: 17-40: 3.) The parking structure is comprised of a “carport and a parking area on the top level and . . . a basement . . . lower level parking area as well.” (Tr. 98: 8-13.) It is 260 feet approximately from the parking structure to the stairwell at the entrance of the subject apartment. (Tr. 115: 10-24.) Upon the tip and vehicle surveillance, officers pursued the warrant. (Tr. 42.)

         The Search

         Having received the search warrant, Detective Madsen gathered the other officers offsite and put together a “tactical plan, ” specifying “how [they] were going to safely execute the search warrant.” (Tr. 11: 22-25, 65: 7-13.) The other officers were briefed “on the search warrant . . . and what the search entailed.” (Tr. 12: 10-13.) Detective Madsen “informed [the other officers] that [they] were looking . . . for keys, any other documents or items related to the theft of that motor vehicle.”[6] (Tr. 69: 18-23.)

         The officers conducted a “knock and announce search, ” in which they “approached in what [they] call a stick, ” or a line. (Tr. 12: 1-3, 17-19.) An officer “who was equipped with a ballistic shield” knocked and when someone answered the door, the officers “moved [their] way into the apartment [and] secured that individual.” (Tr. 12: 19-13: 8.)

         The officers entered the house and went into the living room. (Tr. 15: 7-9.) The kitchen was “to the immediate right of the entry or the south end of that living room” (Tr. 15: 16-18), and a hallway led to the bedrooms with a closet (Tr. 16: 3-9). There were two bedrooms at the end of the hall, one on the north side and one on the south. (Tr. 18: 12-14.) Officers observed other individuals in the apartment and secured them before conducting a “safety sweep of the apartment for officer safety reasons.” (Tr. 13: 8-13.)

         During the safety sweep, each officer had a “specific . . . area or role.” (Tr. 13: 17-25.) While conducting the safety sweep, the officers were “looking in closets and rooms and anywhere where a person could be” and “observing whatever they happen[ed] to observe.” (Tr. 14: 9-14.) “[T]ypically” the team involved in the safety sweep is “looking for anything that can harm” the officers. (Tr. 67: 1-2.) This includes “weapons that are immediately accessible” and “anything that can be immediately destroyed.” (Tr. 67: 3-7.) During the safety sweep, Detective Kresdon Bennett[7] observed “a handgun magazine located or observed on the kitchen counter, ” which was of concern because “usually with a firearm magazine there is a firearm.” (Tr. 67: 11- 20.) But they found no firearm in the initial sweep. (Tr. 67: 24-68: 1.)

         After the safety sweep but before further investigation, Detective Madsen placed the warrant on the counter, and an officer designated the “finder” took pictures of the apartment. (Tr. 15: 21-25; 19: 6-9, 97: 12-16.) The finder took photographs of the various rooms in the apartment, about which ...

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