1

Grazioso also moves to suppress evidence seized from a search

of the premises located at 2700 East Grauwyler, #132, Irving,

Texas, and to suppress his identity and all statements and

testimony concerning the alleged contraband seized during the

searches. In the suppression hearing, however, no evidence was

produced that the residence was searched or that Grazioso made any

incriminating statements. The court need not address this aspect

of Grazioso’s motion.

2

Pursuant to Fed. R. Crim. P. 12(d), the court sets forth in

this memorandum opinion and order its essential findings.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-022-D

VS. §

 §

ANTHONY JOSEPH GRAZIOSO, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Defendant Anthony Joseph Grazioso (“Grazioso”), indicted for

the offenses of possession with intent to distribute

methamphetamine, felon in possession of a firearm, and possession

of a firearm in furtherance of a drug trafficking crime, moves to

suppress all evidence seized on March 8, 2005, including, but not

limited to, methamphetamine, from the searches of his pickup truck

and two storage stalls.1 Having conducted an evidentiary hearing,

the court concludes, for the reasons that follow,2 that the motion

must be granted.

 

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- 2 -

I

On March 4, 2005 Henry Biddle (“Agent Biddle”), an agent of

the Drug Enforcement Administration, contacted Brian Schutt

(“Investigator Schutt”), an investigator in the Narcotics Division

of the Irving, Texas Police Department (“IPD”). Agent Biddle

informed Investigator Schutt that a confidential informant (“CI”)

had stated that a person named “Tony,” a white male, approximately

age 43, was dealing methamphetamine from two storage stalls located

at Carl Road and State Highway 183 (“S.H. 183”) in Irving.

According to the CI, “Tony” ran a lawn service and carried 1⁄4- to 1⁄2-

pound of methamphetamine in a blue or red Ford Ranger pickup truck,

the drugs were located in a toolbox in the bed of the truck, and

he took in payment for methamphetamine items stolen during

burglaries or purchased with stolen credit cards. The CI also

related that “Tony” stored the stolen items in the two storage

stalls. 

Investigator Schutt and IPD Sergeant Rubealcaba believed that

“Tony” was defendant Grazioso. Investigator Schutt, who had known

of Grazioso throughout his 20-year IPD career, was aware that

Grazioso drove a blue Ford pickup truck, and both knew him to be a

methamphetamine dealer. Investigator Schutt ran Grazioso’s name

through the RMS, which showed that Grazioso owned a blue Ford

Ranger. 

Investigator Schutt apprised Ken Fay (“Investigator Fay”), an

 

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IPD undercover narcotics investigator assigned to the Special

Investigation Section of the Criminal Investigation Division, of

the information that Agent Biddle had relayed to him. Later that

night, around 11:50 p.m., Investigator Fay conducted surveillance

at the Public Storage facility near the intersection of Carl Road

and S.H. 183 in Irving. He observed a blue Ford Ranger pickup

truck parked directly in front of stall K459 and Grazioso standing

near the toolbox on the driver’s side of the pickup. Grazioso was

already at the storage facility when Investigator Fay arrived.

Another vehicle was parked for a short amount of time in front of

the pickup. After about 10 minutes of surveillance, Grazioso

departed. 

Investigator Fay radioed for assistance and followed him.

Grazioso traveled southbound on Carl Road toward East Grauwyler

Road. Investigator Fay noticed Grazioso acting nervously as he

drove, frequently looking around and in his rear-view mirror, which

is consistent with the conduct of someone engaged in drug

trafficking counter-surveillance. Investigator Fay followed

Grazioso to a gas station at the corner of East Grauwyler Road and

Carl Road. Grazioso exited his truck and looked at Investigator

Fay, so Investigator Fay “called it,” meaning he terminated the

surveillance due to Grazioso’s actions.

On the night of March 7, 2005, at around 11:50 p.m.,

Investigator Fay again conducted surveillance at the storage

 

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3

It is undisputed that neither Investigator Fay nor Officer

Rogers was aware before the traffic stop of Grazioso’s outstanding

warrant. 

- 4 -

facility. He positioned himself in the same place as before and

observed Grazioso, the same blue Ford Ranger, another white male,

and a red vehicle. Investigator Fay watched Grazioso for

approximately 10 minutes before Grazioso departed. After Grazioso

stopped at a nearby gas station, he headed eastbound on S.H. 183.

Investigator Fay called for assistance and followed Grazioso

on S.H. 183, observing him from a distance of about three car

lengths. Grazioso took the Grauwyler Road exit. Investigator Fay

observed that Grazioso drove partially onto the shoulder of the

road and continued to straddle the right lane and shoulder for

about five to seven seconds while exiting the highway. Because

Investigator Fay was driving an unmarked unit, he radioed for a

marked IPD patrol unit to initiate a traffic stop based on

Grazioso’s failure to maintain a single lane of traffic. IPD

Patrol Officer Jason Rogers (“Officer Rogers”), who was patrolling

nearby and heading westbound on Grauwyler Road near S.H. 183,

responded within seconds. Officer Rogers effected the stop and

Grazioso pulled into the parking lot of the View Pointe Apartments,

located at 2700 East Grauwyler Road in Irving. 

After it was determined that Grazioso had an outstanding

parole warrant for a parole violation,3 Officer Rogers decided to

place him under arrest and later decided to impound Grazioso’s

 

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4

A principal focus of the suppression hearing surrounded the

details of the decision to conduct an inventory search and whether

the police conducted the search pursuant to IPD policy. Given the

rationale for the court’s decision, it need not address questions

that pertain to whether the inventory search would have been lawful

had the initial stop been a permissible Terry stop.

- 5 -

truck. Investigator Fay and another officer conducted an inventory

of Grazioso’s truck between 1:00 and 1:30 a.m. on March 8.4 Using

a key from Grazioso’s keychain to unlock the toolbox in the truck

bed, they found 191 grams of methamphetamine, distribution baggies,

and paperwork showing Grazioso as the lessee of two storage stalls,

including stall number K459, which Investigator Fay had surveilled.

Investigator Fay also found in the toolbox an empty case for a

Glock 17 gun. 

Soon after the inventory search, Investigator Fay contacted

IPD Officer Ray Carmack (“Officer Carmack”) and asked him to run

his drug-detecting canine outside the K459 storage stall at the

Public Storage facility. At approximately 2:00 a.m., Officer

Carmack ran his canine along the entire row of storage stalls that

included K459. The dog alerted outside stall K459, and Officer

Carmack notified Investigator Fay.

Investigator Fay decided to seek a warrant to search both of

Grazioso’s storage stalls. He prepared a search warrant affidavit

and brought it before a county magistrate at approximately 5:30

a.m. The affidavit recounted much of the information the CI had

provided Agent Biddle and that he had in turn relayed to

 

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Investigator Schutt. The document also described Investigator

Fay’s surveillance of Grazioso at the storage stalls on March 4 and

7 and his conduct while under observation, the traffic stop, the

arrest, the inventory search (including the discovery of

methamphetamine, drug paraphernalia, and storage stall leases that

showed Grazioso to be the lessee), and the canine sniff.

Concerning the canine sniff, the affidavit stated, in pertinent

part: “ON 03-08-05, YOUR AFFIANT CONTACTED OFFICER R. CARMACK #764

WHO IS EMPLOYED BY THE IRVING POLICE DEPARTMENT AS A K-9 HANDLER

FOR ‘ROCKY,’ ATTACHED HERETO AS EXHIBIT ‘A’ AFFIDAVIT OF

QUALIFICATIONS; IT IS TO BE CONSIDERED AS PART OF THIS AFFIDAVIT AS

IF WRITTEN HEREIN.” D. Ex. 11. The affidavit of qualifications,

however, was not attached to the search warrant affidavit at the

time Investigator Fay submitted it to the magistrate. The

magistrate issued a search warrant for stalls K459 and M516.

Investigators Fay and Schutt searched these storage stalls

pursuant to the warrant. One stall was packed with items such as

tools, lawnmowers and edgers, computer equipment, and furniture.

In stall K459, the officers found and seized firearms, including a

Glock .40 caliber pistol, a Smith & Wesson .347 Magnum revolver,

and a Mossberg 12-gauge shotgun. The officers also found and

seized controlled substances, including methamphetamine. 

The grand jury later indicted Grazioso for the offenses of

possession with intent to distribute methamphetamine, in violation

 

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of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); and

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A). Grazioso filed a motion

to suppress on February 23, 2006. The court conducted an

evidentiary hearing on June 16 and 20, 2006.

II

The court first considers Grazioso’s motion to suppress the

evidence seized during the search of his truck.

A

The Fourth Amendment protects individuals

against unreasonable searches and seizures.

Traffic stops are deemed seizures for the

purposes of the Fourth Amendment. The

legality of a traffic stop is analyzed under

the framework articulated in Terry v. Ohio,

392 U.S. 1 (1968). Under the two-part Terry

reasonable suspicion inquiry, we ask whether

the officer’s action was: (1) justified at its

inception; and (2) reasonably related in scope

to the circumstances which justified the

interference in the first place . . . . For a

traffic stop to be justified at its inception,

an officer must have an objectively reasonable

suspicion that some sort of illegal activity,

such as a traffic violation, occurred, or is

about to occur, before stopping the vehicle.

The Supreme Court has stated that in making a

reasonable suspicion inquiry, a court must

look at the totality of the circumstances of

each case to see whether the detaining officer

has a particularized and objective basis for

suspecting legal wrongdoing. We have stated

previously that reasonable suspicion exists

when the officer can point to specific and

articulable facts which, taken together with

rational inferences from those facts,

reasonably warrant the search and seizure. In

 

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evaluating the totality of the circumstances,

a court may not consider the relevant factors

in isolation from each other. In scrutinizing

the officer’s basis for suspecting wrongdoing,

it is clear that the officer’s mere hunch will

not suffice. It is also clear, however, that

reasonable suspicion need not rise to the

level of probable cause.

United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)

(internal quotation marks and some citations omitted), cert.

denied, ___ U.S. ___, 126 S.Ct. 1449 (2006). The government bears

the burden of establishing by a preponderance of the evidence two

elements under Terry: that the stop was justified at its inception

and that the Fourth Amendment intrusions were reasonably related in

scope to the circumstance that justified the interference in the

first place. See United States v. Sanchez-Pena, 336 F.3d 431, 437

(5th Cir. 2003); United States v. Riley, 968 F.2d 422, 424-25 (5th

Cir. 1992) (addressing warrantless search of home) (“Because a

warrantless search is presumed to be unreasonable, the Government

has the burden of proving that the warrantless search was conducted

pursuant to an exception.”). For a stop to be justified at its

inception, “the officer [must have] a reasonable suspicion

supported by articulable facts that criminal activity may be

afoot.” United States v. Neufeld-Neufeld, 338 F.3d 374, 378 (5th

Cir. 2003) (quoting United States v. Sokolow, 490 U.S. 1, 7

(1989)). “The concept of reasonable suspicion . . . is not

‘readily, or even usefully, reduced to a neat set of legal rules.’”

Sokolow, 490 U.S. at 7 (quoting Illinois v. Gates, 462 U.S. 213,

 

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5

As the court explains infra at § II(C)(1), the government has

waived any argument that Investigator Fay lawfully effected the

initial stop of Grazioso’s truck based on probable cause to believe

he was carrying narcotics in the truck.

6

In its closing argument, the government relied on United

States v. Jones, 185 F.3d 459 (5th Cir. 1999), to support the

assertion that the stop was supported by reasonable suspicion.

Jones is distinguishable, however, because there the officer

- 9 -

232 (1983)). “[T]he facts giving rise to reasonable suspicion

‘must be judged against an objective standard.’” United States v.

Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999) (quoting Terry,

392 U.S. at 21-22). “[T]he constitutional reasonableness of the

stop does not depend upon the actual motivations of the officer

involved.” Sanchez-Pena, 336 F.3d at 437.

B

To support the first element, the government relies solely on

the ground that Grazioso failed to maintain a single lane of

traffic, in violation of Tex. Transp. Code. Ann. § 545.060(a)

(Vernon 1999).5 Section 545.060(a) provides that “[a]n operator on

a roadway divided into two or more clearly marked lanes for

traffic: (1) shall drive as nearly as practical entirely within a

single lane; and (2) may not move from the lane unless that

movement can be made safely.” The government contends in its

brief, and argued at the hearing, that Investigator Fay (and, in

turn, Officer Rogers) was justified in stopping Grazioso because he

observed Grazioso straddle the shoulder and right lane of the

highway as he was exiting.6 In his brief, Grazioso posits in

 

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observed a violation of a Louisiana law. See id. at 463-64. And,

unlike the instant case, there is no indication in Jones that

Louisiana courts had held beforehand that the conduct the officer

observed was not a violation of Louisiana law. Cf. id.

- 10 -

conclusory fashion that the police were without probable cause to

approach, question, detain, or request consent to search him. But

at the hearing, Grazioso cited Hernandez v. State, 983 S.W.2d 867

(Tex. App. 1998, pet. ref’d), and argued that, absent any evidence

that he failed in an unsafe manner to maintain a single lane of

traffic, the government did not establish an observed traffic

violation that gave Investigator Fay reasonable suspicion to effect

a traffic stop.

In Hernandez the Texas Court of Appeals interpreted

§ 545.060(a) as prohibiting only the failure to maintain a single

lane of traffic when doing so is unsafe:

We believe the statutory language shows a

legislative intent that a violation of section

545.060 occurs only when a vehicle fails to

stay within its lane and such movement is not

safe or is not made safely. Neither the

current provision in the Transportation Code

nor the original statute creates two separate

offenses, but rather only one: moving out of a

marked lane when it is not safe to do so.

Hernandez, 983 S.W.2d at 871. Texas courts have consistently

followed Hernandez, holding that § 545.060(a) is violated “only

when a vehicle fails to stay within its lane and such movement is

not safe or is not made safely.” State v. Huddleston, 164 S.W.3d

711, 716 (Tex. App. 2005, no pet.) (emphasis added) (citing

 

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Hernandez, 983 S.W.2d at 871). Evidence of crossing the solid

white line, even multiple times, is alone insufficient to

constitute a violation of § 545.060. See id. (holding police

officer had no reason to suspect violation of § 545.060 when he

witnessed defendant safely cross fog line five times over six-mile

stretch of road); Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.

2000) (holding no violation of § 545.060 when defendant crossed

over side stripe for distance of twenty feet at speed below posted

speed limit), rev’d on other grounds, 85 S.W.3d 272 (Tex. Crim.

App. 2002); State v. Tarvin, 972 S.W.2d 910, 911-12 (Tex. App.

1998, pet. ref’d) (holding that crossing right-hand white line

twice was not violation of § 545.060 absent evidence that defendant

went into another lane of traffic, had difficulty maintaining safe

speed, or otherwise drove erratically). By contrast, when there is

evidence of erratic driving or heavy traffic conditions, Texas

courts have found violations of § 545.060. See, e.g., Tyler v.

State, 161 S.W.3d 745, 749-50 (Tex. App. 2005, no pet.) (concluding

police officer had reason to suspect violation of § 545.060 when

defendant straddled white line before erratically returning to his

lane at an angle and there was evidence of heavy traffic); Martinez

v. State, 29 S.W.3d 609, 611-12 (Tex. App. 2000, pet. ref’d)

(holding it was not unreasonable for police officer to conclude

that defendant had violated § 545.060 when defendant swerved onto

shoulder late at night in moderate-to-heavy traffic).

 

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7

This is not a case in which Investigator Fay made a mistake

of fact rather than of law. Cases from other circuits hold that,

when an officer is factually mistaken as to the existence of a

traffic offense, that mistake does not render the stop illegal, but

a mistake of law cannot provide the necessary objective basis for

reasonable suspicion or probable cause. See, e.g., United States

v. Ellington, 396 F.Supp.2d 695, 699-700 (E.D. Va. 2005)

(discussing cases). Here, the conduct that Investigator Fay

observed did not violate Texas law, and the cases that established

this had been on the books for several years. See United States v.

Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (noting that no

well-trained officer could believe, ten years after Texas state

court decision, that white light appearing with red light through

cracked red taillight lens constituted violation of Texas traffic

law). 

- 12 -

In the instant case, the government did not prove that, when

Grazioso failed to stay within his lane of traffic, his movement

was not safe or was not safely made. Investigator Fay merely

testified that Grazioso drove partially onto the shoulder of the

road and continued to straddle the right lane and shoulder for

about five to seven seconds while exiting S.H. 183 at night. He

did not specify how far into the shoulder Grazioso operated his

vehicle. There was no testimony that Grazioso drove in an erratic

manner, such as by swerving at a sharp angle either onto the

shoulder or back onto the highway or exit ramp. Nor was there

evidence of any heavy traffic in the area.

Absent evidence that it was unsafe for Grazioso to drive

partially on the shoulder, or that he drove in an unsafe manner,

Investigator Fay lacked reasonable suspicion that Grazioso had

committed a violation of § 545.060 in his presence.7 Because the

government did not prove by a preponderance of the evidence that

 

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the traffic stop was justified at its inception, the stop was

unlawful under Terry. See United States v. Lopez-Valdez, 178 F.3d

282, 288 (5th Cir. 1999) (noting circuit precedent that, where

supposed traffic violation that formed basis of vehicular stop was

not violation of state law, there was no objective basis for

probable cause justifying stop) (citing United States v. Miller,

146 F.3d 274, 279 (5th Cir. 1998)).

C

Because the initial traffic stop was unlawful, the evidence

that IPD seized during the subsequent inventory search must be

suppressed under the exclusionary rule unless the government can

show that it is not fruit of the poisonous tree. “The exclusionary

rule prohibits introduction at trial of evidence obtained as the

result of an illegal search or seizure.” United States v. Runyan,

275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also

“encompass[es] evidence that is the indirect product or ‘fruit’ of

unlawful police conduct.” Id. (citing Wong Sun v. United States,

371 U.S. 471, 488 (1963)). The government bears the burden of

demonstrating that the exclusionary rule should not apply to the

fruits of an illegal search or seizure. Id. at 456 (citing United

States v. Houltin, 566 F.2d 1027, 1031 (5th Cir. 1978)).

1 

There are three well-recognized exceptions to the exclusionary

rule. “Evidence will be admissible despite the exclusionary rule

 

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8

Of course, in this case the police could not have conducted

an inventory search absent a valid initial stop and a basis under

Irving policy to perform such a search.

- 14 -

if: (1) it ‘derives from an independent source,’ (2) it ‘has an

attenuated link to the illegally secured evidence,’ or (3) it

‘inevitably would have been discovered during police investigation

without the aid of the illegally obtained evidence.’” Id. at 466

(quoting United States v. Miller, 666 F.2d 991, 995 (5th Cir.

1982)). Here, the government does not contend that any of the

three exceptions applies. As the court stated recently in United

States v. Johnson, 2006 WL 1041148 (N.D. Tex. Apr. 20, 2006)

(Fitzwater, J.), “[b]ecause the government has the burden of

proving that an exception to the exclusionary rule applies, the

court assumes the government determined that it cannot justify such

an exception. It therefore waived any argument that an exception

to the exclusionary rule applies in this case.” Id. at *6

(citation omitted).

The government instead maintains that the search was a valid

inventory search8 or, alternatively, that the automobile exception

applies and that the warrantless search was permissible because

there was probable cause to believe Grazioso’s truck contained

contraband. The fallacy in this argument is that it overlooks the

government’s obligation to establish that the search was not fruit

of the illegal traffic stop. See, e.g., United States v. Hall,

557 F.2d 1114, 1116 (5th Cir. 1977) (stating that, in determining

 

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validity of warrantless search, two points in time, including

initial stop of vehicle, must be examined, and holding that “[i]f

the initial stop was not justified, then the subsequent acts are

illegal fruits of the poisonous tree” (citing, inter alia, Wong

Sun, 371 U.S. 471). The Fifth Circuit recently reiterated in

United States v. Jaquez, 421 F.3d 338 (5th Cir. 2005) (per curiam),

that, where a traffic stop is unlawful, 

[u]nder the “fruit of the poisonous tree”

doctrine, all evidence derived from the

exploitation of an illegal search or seizure

must be suppressed, unless the Government

shows that there was a break in the chain of

events sufficient to refute the inference that

the evidence was a product of the Fourth

Amendment violation.

Id. at 341 (quoting United States v. Rivas, 157 F.3d 364, 368 (5th

Cir. 1998)). The government has failed to meet its obligation to

show that the evidence obtained from the search was not derived

from the exploitation of the illegal traffic stop.

2

Nor is the government’s probable cause argument sufficient to

avoid suppressing the evidence, since it is offered in support of

the search that followed the stop, not the initial stop itself.

First, the only reference in the government’s brief to a

justification for the traffic stop relates to § 545.060(a): “The

initial stop of Grazioso’s truck was valid because he violated a

Texas statute when he failed to maintain a single lane of traffic.”

P. Br. 4 (emphasis omitted); see also id. at 5 (“Based upon the

 

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- 16 -

officers’ observations and experience, they were lawfully justified

in stopping Grazioso for this traffic offense.” (emphasis added)).

Second, the argument that the police had probable cause to search

the toolbox is essentially presented in the alternative to the

assertion that the inventory search was valid. This argument is

located within the section titled, “The search of Grazioso’s truck

was a valid inventory search.” Id. at 6 (emphasis omitted). And

it begins by stating, “[i]n addition to the search qualifying under

the inventory search exception, it was also supported by the

automobile exception which ‘permits authorities to search a vehicle

when they have probable cause to believe it contains contraband.’”

Id. at 8 (quoting United States v. Saucedo-Munoz, 307 F.3d 344, 351

(5th Cir. 2002)). At no point in the argument does the government

state that Irving police had probable cause at the inception of the

traffic stop, nor does it even mention the traffic stop.

It is significant that the government fails to allege that the

police had probable cause at the inception of the traffic stop to

stop Grazioso’s truck. Because the stop was warrantless, the

burden rests on the government to prove by a preponderance of the

evidence that it was justified at its inception. See United States

v. Schlieve, 159 Fed. Appx. 538, 542-43 (5th Cir. 2005) (per

curiam) (unpublished opinion) (discussing government’s burden in

context of Terry stop). Neither in the government’s brief nor

during its closing argument at the suppression hearing did it put

 

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Grazioso on notice that, as to the traffic stop, he needed to

address anything other than the alleged violation of § 545.060(a)

as the basis to effect the stop. Thus even if the officers did

have probable cause at the inception of the traffic stop to

believe, for example, that Grazioso was then illegally in

possession of narcotics, the government waived this argument by

failing to raise it adequately as an alternative basis for the

stop.

The government’s failure to argue that Irving police had

probable cause to stop and search Grazioso’s truck also

distinguishes this case from Whren v. United States, 517 U.S. 806

(1996), and Devenpeck v. Alford, 543 U.S. 146 (2004), which held

that “an arresting officer’s state of mind (except for the facts

that he knows) is irrelevant to the existence of probable cause.”

Devenpeck, 543 U.S. at 153. The government could have argued, but

did not, that even if Investigator Fay’s subjective belief that

Grazioso had violated § 545.060(a) was incorrect, the traffic stop

was nonetheless justified if he objectively had reason to suspect

that Grazioso had committed some other traffic offense or had

probable cause to believe he had violated a criminal statute. Thus

the government could have articulated alternative grounds to

justify the traffic stop, even though Investigator Fay testified

that he caused the stop to be initiated based solely on Grazioso’s

failure to maintain a single lane of traffic. For example, the

 

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9

Section 545.058(a) makes it a violation to drive on an

improved shoulder to the right of the main road unless it is

necessary and may be done safely. But even had the government

asserted this ground, it proffered no evidence that it was either

unnecessary or unsafe for Grazioso to drive on the shoulder of S.H.

183.

- 18 -

government might have asserted that Grazioso drove on an improved

shoulder, in violation of Tex. Transp. Code. Ann. § 545.058(a)

(Vernon 1999),9

 or that the traffic stop was justified because

Investigator Fay had probable cause to believe Grazioso possessed

narcotics in the toolbox located in the truck bed. But, as the

court explains above, the government has not presented these

arguments and has accordingly waived them. See Johnson, 2006 WL

1041148, at *6.

Consequently, because the government has failed to meet its

burden of establishing that the evidence seized during the search

of Grazioso’s truck is not fruit of the illegal traffic stop, the

court holds that the evidence must be suppressed.

III

A

Grazioso also challenges the search of the two storage stalls

pursuant to the search warrant. He contends that (1) the

information in the affidavit that shows probable cause was obtained

by an unlawful warrantless search; (2) the warrant was not

supported by probable cause because the affidavit did not set forth

sufficient underlying circumstances from which the affiant

 

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(Investigator Fay) concluded that the alleged contraband was where

the CI claimed it was and that the CI was credible or his

information reliable; (3) the affidavit did not give the magistrate

a substantial basis to believe that probable cause existed or that

the alleged contraband would be found in a particular place; (4)

the affiant knowingly and intentionally, or with reckless disregard

for the truth, included false statements in the affidavit in

support of the warrant; and (5) the search that was conducted

exceeded the permissible scope of the search authorized by the

warrant. Grazioso maintains that, when the challenged portions are

removed from the affidavit, the remainder is insufficient to

support issuance of the search warrant. The government contends

the search warrant was supported by probable cause; even if the

affidavit of qualifications is excised from the affidavit, the

search warrant was supported by probable cause that was sufficient

to warrant its issuance; and because Grazioso has failed to make an

offer of proof or to show that the officers were not entitled to

good-faith reliance on the warrant, the good-faith exception

applies.

B

The court begins with Grazioso’s first argument——that the

evidence seized during the search of the storage stalls must be

suppressed because the information in the search warrant affidavit

that showed probable cause was obtained by an unlawful warrantless

 

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10Unlike the government, which failed to make the arguments

addressed above, Grazioso made a valid argument but did not give

the argument its precise label. Accordingly, he did not waive it.

11Investigator Fay averred in the search warrant affidavit:

ON 03/07/05, YOUR AFFIANT OBSERVED [GRAZIOSO]

AT THE [STORAGE STALLS] LISTED IN #1 ABOVE.

[GRAZIOSO] LEFT THE LOCATION AND WAS OBSERVED

DRIVING A FORD RANGER TRUCK. [GRAZIOSO] WAS

STOPPED ON TRAFFIC [sic] FOR FAIL[URE] TO

MAINTAIN A SINGLE LANE AND WAS FOUND TO HAVE A

PAROLE VIOLATION WARRANT FOR HIS ARREST.

[GRAZIOSO] WAS PLACED UNDER ARREST. DURING AN

INVENTORY OF THE VEHICLE YOUR AFFIANT FOUND

191.1 GRAMS OF METHAMPHETAMINE IN A BLACK BAG

WHICH WAS FOUND IN THE TOOL BOX IN THE BED OF

THE FORD RANGER. YOUR AFFIANT ALSO FOUND

SEVERAL DISTRIBUTION BAGGIES ALONG WITH A SET

OF DIGITAL SCALES AND SE[ ]VERAL UNUSED

SYRINGES IN THE BLACK BAG. THE

METHAMPHETAMINE WAS SUBJECT TO A FIELD-TEST

WITH POSITIVE RESULTS FOR METHAMPHETAMINE.

ARRESTING OFFICER HENDERSON, WHILE SEARCHING

THE VEHICLE INCIDENT TO ARREST FOUND LEASE

PAPERWORK TO PUBLIC STORAGE WHICH IS THE

LOCATION LISTED AS #1 ABOVE FOR TWO UNITS K459

AND M516. [GRAZIOSO] WAS THE [LESSEE] OF THE

TWO UNITS LISTED IN #1 ABOVE.

D. Ex. 11.

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search. Although Grazioso does not specifically use the phrase

“fruit of the poisonous tree,” he essentially asserts that the

evidence found in the storage stalls is fruit of the illegal

traffic stop and ensuing search of his truck.10

In the search warrant affidavit, Investigator Fay relied in

part on evidence seized during the inventory search that followed

the traffic stop.11 Because this evidence was used to support the

 

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warrant for the search of the storage stalls, the court must

determine whether evidence seized from the stalls is fruit of the

unlawful traffic stop and search. If it is, this evidence must

also be suppressed. See Runyan, 275 F.3d at 466. The government

bears the burden of demonstrating that the exclusionary rule should

not extend to evidence seized during the search of the storage

stalls. See id. at 456. That is, the government must demonstrate

that the search of the stalls falls within one of the three

exceptions to the fruit of the poisonous tree doctrine.

The government has not met this burden because it has not

directly responded to this argument or explicitly addressed any of

the three exceptions. The government does contend, however, with

respect to the affidavit of qualifications that, if it were excised

from the affidavit, the search warrant would still have been

supported by probable cause sufficient to warrant its issuance.

The court will assume arguendo that, although the government does

not explicitly identify the independent source doctrine, it intends

to argue that this exception applies.

The independent source doctrine “permits the introduction of

unlawfully discovered evidence when the police have acquired that

evidence through a distinct, untainted source.” United States v.

Grosenheider, 200 F.3d 321, 327 (5th Cir. 2000) (citing Segura v.

United States, 468 U.S. 796, 815-16 (1984); Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 392 (1920)). The doctrine has two

 

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elements:

in order for a later search pursuant to a

warrant to be deemed “genuinely independent”

of a prior illegal [search], the government

must demonstrate two things: (1) that the

police would still have sought a warrant in

the absence of the illegal search; and (2)

that the magistrate judge would still have

issued the warrant had the supporting

affidavit not contained information stemming

from the illegal search.

Runyan, 275 F.3d at 467 (citing Murray v. United States, 487 U.S.

533, 542 (1988)). “Animating this doctrine is the recognition that

the goal of the exclusionary rule is to put the police ‘in the

same, not a worse, position tha[n] they would have been in if no

police error or misconduct had occurred.’” Grosenheider, 200 F.3d

at 327 (emphasis omitted) (quoting Nix v. Williams, 467 U.S. 431,

443 (1984)). “When the challenged evidence has an independent

source, exclusion of such evidence would put the police in a worse

position than they would have been in absent any error or

violation.” Id. (citing Nix, 467 U.S. at 443). 

The government has failed to meet its burden on the first

element of the independent source doctrine. See id. at 328

(“Murray also mandates that the district court find that the agents

would have sought the warrant even if that illegality had never

taken place.”). At the hearing, the government elicited no

testimony or proffered any other evidence demonstrating that,

absent the unlawful traffic stop and the subsequent inventory

search, Irving police would nevertheless have sought a warrant to

 

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search the storage stalls. Moreover, Investigator Fay applied for

a warrant within hours of the traffic stop, while he was still on

his same shift. The evidence demonstrates that the traffic stop,

the inventory search, the canine sniff, and the application for a

search warrant occurred sequentially and incrementally, over a

period of approximately five hours. Each event led naturally to

the next. The government did not establish that the search warrant

request was so attenuated as to make it independent of the traffic

stop or the unlawful inventory search that followed. See id. at

327 (“The primary limit on [the exclusionary] rule is that

otherwise suppressible evidence will still be admitted if the

connection between the alleged illegality and the acquisition of

the evidence is ‘so attenuated as to dissipate the taint.’”

(quoting Nardone v. United States, 308 U.S. 338, 341 (1939))).

If any event could be said to have broken the chain of events

between the traffic stop and vehicle search and the magistrate’s

issuance of the search warrant, it would be the canine sniff.

Grazioso does not contend that the canine sniff was fruit of the

unlawful traffic stop; he merely challenges the use of the canine

sniff to support the search warrant on the ground that the

affidavit of qualifications was not attached to the affidavit at

the time Investigator Fay submitted it to the magistrate.

Nevertheless, Grazioso does contend that the search of the storage

stalls was connected to the traffic stop, and, as stated above,

 

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each event from the traffic stop to the search of the stalls,

including the canine sniff, led naturally to the next. The

government neither argued nor attempted to prove that it would have

arranged for the canine sniff absent the seizure of evidence from

Grazioso’s truck, or that it would have sought a warrant based on

the canine sniff, without also relying on what was seized from the

truck. It has not demonstrated that the independent source

exception precludes application of the fruit of the poisonous tree

doctrine to the seizure of the evidence from the storage stalls.

C

The government asserts that the evidence seized from the

storage stalls should not be suppressed because the officers who

conducted the search were entitled under United States v. Leon, 468

U.S. 897 (1984), to good-faith reliance on the warrant. Leon

recognized an exception to the exclusionary rule when officers

seize evidence in good-faith reliance on a warrant that is later

found to have been issued without probable cause. See id. at 922.

In essence, the Supreme Court in Leon reasoned that the purpose of

the exclusionary rule is to deter police misconduct, and it

concluded that this purpose would not be served by excluding

evidence when it is the magistrate rather than the police officer

who has committed the error. See id. at 916.

The Leon rationale is inapplicable, however, to a case where

unlawful police activity is used to procure a search warrant. In

 

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a case such as this one, where an unlawful traffic stop and ensuing

illegal search constitute part of the basis for the search warrant

affidavit, it is the police officer rather than the magistrate who

has committed the constitutional violation. Exclusion of evidence

seized pursuant to the warrant would deter police misconduct. The

court therefore holds that the Leon good-faith exception to the

exclusionary rule is inapplicable. See United States v. Davis, 430

F.3d 345, 358 n.4 (6th Cir. 2005) (“[W]e agree with the numerous

other circuits that have held that the Leon good-faith exception is

inapplicable where a warrant was secured in part on the basis of an

illegal search or seizure.”); United States v. O’Neal, 17 F.3d 239,

243 (8th Cir. 1994) (“If the method by which evidence supporting a

search warrant is seized is clearly illegal, then even under Leon

. . . , evidence obtained under the resulting warrant should be

excluded.”); United States v. Scales, 903 F.2d 765, 767-68 (10th

Cir. 1990) (holding that rationale of Leon did not apply when

police misconduct was committed before warrant was issued); United

States v. Vasey, 834 F.2d 782, 789-90 (9th Cir. 1987) (“We

therefore conclude that a magistrate’s consideration does not

protect from exclusion evidence seized during a search under a

warrant if that warrant was based on evidence seized in an

unconstitutional search. Accordingly, the good faith exception

should not and will not be applied to the facts of this case.”);

United States v. McQuagge, 787 F. Supp. 637, 657 (E.D. Tex. 1991)

 

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(holding that good-faith exception does not apply when illegally

obtained evidence is necessary to support magistrate judge’s

finding of probable cause).

D

Assuming arguendo that the government intends to rely on the

independent source doctrine, it has failed to meet its burden of

demonstrating that the exception applies. Nor has it shown that

the police were entitled to the Leon good-faith exception.

Accordingly, the evidence seized from the storage stalls pursuant

to the warrant must be suppressed as fruit of the illegal traffic

stop and ensuing search.

* * *

For the reasons stated, the court grants Grazioso’s February

23, 2006 motion to suppress.

SO ORDERED.

June 28, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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