United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
Defendant Malek Samuel Malek is before the court on an indictment charging him with conspiracy to distribute a controlled substance (methamphetamine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. See Docket No. 1. He now moves to suppress certain evidence seized on October 14, 2014 pursuant to a search warrant. See Docket No. 47. The government resists Mr. Malek's motion. See Docket No. 52. This motion was referred to this magistrate judge to hold an evidentiary hearing and to recommend a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014 standing order of the Honorable Karen E. Schreier, District Judge. The following is this court's recommended disposition.
An evidentiary hearing was held in this matter on August 12, 2015. Mr. Malek was present in person at the hearing along with his lawyer, Mr. David Alan Palmer, and an Arabic interpreter. Representing the government was Assistant United States Attorney Connie Larson assisted by third-year law student Jesse Goodwin. At the hearing, one witness testified and three exhibits were received. From this evidence, the court makes the following findings of fact.
A. The Affidavit in Support of the Search Warrant
On October 14, 2014 Detective Jeff Thoreson of the Minnehaha County Sheriff's Office and the Sioux Falls Area Drug Task Force submitted an affidavit to a South Dakota state court judge in support of a request for a search warrant for Mr. Malek's hotel room in Sioux Falls. See Exhibit A. That affidavit set forth a summary of separate interviews with 14 informants who had given information to law enforcement independent of one another. Four of these informants had been interviewed by Det. Thoreson himself. In addition, the affidavit set forth additional facts obtained by law enforcement in their own investigation. A summary of the affidavit is as follows:
Source of Information (SOI) #1 told police in November 2013 that the week prior he had observed Mr. Malek associating with Gigilo in the presence of large stacks of money and that each had a gun. SOI#1 said that the money was given to Mr. Malek in return for methamphetamine, marijuana, cocaine and mushrooms. SOI#1 observed a large Ziploc bag containing meth.
SOI#2 told police in November 2013 that David sells meth, crack cocaine and marijuana out of a studio on Carolyn Avenue in Sioux Falls. The studio was described as being near Scarlet's.
SOI#3 told police on December 19, 2013 that he was in jail with Gigilo Terrett, who told SOI#3 that Gigilo's source of meth was Mr. Malek, whose nickname was "Bones." Gigilo was willing to hook SOI#3 up with Mr. Malek if SOI#3 was willing to sell large amounts of meth and marijuana. Gigilo proposed introducing SOI#3 to his girlfriend, Miranda, and then Miranda would introduce SOI#3 to Mr. Malek.
SOI#4 told police on January 18, 2014 that he was involved in producing music and videos at David's Carolyn Avenue studio. SOI#4 witnessed David selling marijuana and meth at this studio along with other associates, including one known as "Bone." SOI#4 identified Bone as David's meth source and stated that Bone obtained meth in pound quantities from Kansas City and brought it back to Sioux Falls for distribution. SOI#4 said drug sales at the studio took place at night during parties, and during the daytime at the studio back door.
SOI#5 engaged in a "clear out" interview with police in February, 2014 in which he told them that Gigilo was getting his meth from a black male named "Bone, " who SOI#5 said was Mr. Malek. SOI#5 identified Mr. Malek via an unmarked photograph. SOI#5 said that Mr. Malek kept meth and cocaine in his vehicle, a tan SUV. SOI#5 said Mr. Malek kept a gun between the seats of this SUV. SOI#5 said that Mr. Malek sold meth with David from their music studio near Scarlet O'Hara's.
SOI#6 told Det. Thoreson on March 20, 2014 that Bone sells meth, but does not carry his "weight" with him. Rather, Bone leaves, goes to get meth, and delivers meth within an hour. Bone usually rents cars and hotel rooms, but SOI#6 did not know where Bone kept the bulk of his meth. SOI#6 said Bone could get you up to a pound of meth at any given time. SOI#6 identiied Bone as Mr. Malek by viewing a photograph of him. SOI#6 also told police that Bone and David owned a studio together near Scarlet's, and although David sold drugs, he did not work together with Bone on drug trafficking.
On March 26, 2014 police investigated a report of a larceny at a Sioux Falls motel that had been rented by Mr. Malek. Police interviewed a housekeeper at the hotel who told them Mr. Malek had stayed at the hotel for approximately 2 years, paying $357 per week in rent. The housekeeper told police that Mr. Malek was only at the hotel every other weekend and that he normally drives rental cars. She stated that Mr. Malek was always changing the vehicles he drives.
SOI#7 told Det. Thoreson at the end of May, 2014 that Bones is a tall African black male who drives a tan suburban with tinted windows. SOI#7 told police that Bones frequented a specific house on South Summit Avenue and gave a description of the appearance of the house. Police verified the existence of a house on South Summit Avenue matching the description SOI#7 gave. SOI#7 said he had purchased meth himself from Bones on a couple of occasions. SOI#7 also said "Vidal" lived at the Summit Avenue home. Police verified that someone whose middle name was Vidal lived at the Summit Avenue house.
SOI#8 told police in May, 2014 that Bones is a black male from Kansas City who sells meth in Sioux Falls. SOI#8 said that Bones deals out of a house on South Summit Avenue. SOI#8 supplied the exact address of the house and stated that Bones drives a teal Pontiac G6.
SOI#9 told Det. Thoreson at the end of June, 2014 that four months prior they had purchased an 8-ball of meth from an African black male known as Bones. The transaction took place at a Sioux Falls hotel near I-90. SOI#9 said Bones purchases meth in Sioux City and brings it back to Sioux Falls to sell. SOI#9 said Bones deals with Africans and bikers.
SOI#10 told police in a "clear out" interview in July, 2014 that a black male named Malek Malek aka Bones brings meth into Sioux Falls from out of state. SOI#10 said they had seen Bones with ½ pound of meth at the home of Gigilo and described the location of the home. SOI#10 identified this as the apartment of Miranda, Gigilo's girlfriend. SOI#10 said Gigilo had cocaine at this location that he had obtained from Mr. Malek. SOI#10 said Mr. Malek was obtaining his drug supply from Arizona. SOI#10 also said Mr. Malek hangs out at a music studio near Scarlet's. The smallest amount of meth SOI#10 had ever seen Mr. Malek with was an ounce.
On July 11, 2014 police arrested Stewart in Sioux Falls who was discovered to have Morphine pills in his possession. He told police he was living at the address on South Summit Avenue previously identified by other informants.
On July 14, 2014 police surveilled the South Summit Avenue house and saw Mr. Malek enter a tan Chevrolet Tahoe and leave the address. Later, police effected a traffic stop and found that Mr. Malek's passenger had a small amount of marijuana in his possession. Mr. Malek was cited for a traffic violation and released. Mr. Malek parked his Tahoe, walked away, entered another vehicle and left.
The next day police again surveilled the South Summit Avenue house. They observed a vehicle pull up to the curb and a black male walked up to the car from the residence. The black male handed the driver, Matthew, something smaller than his hand and the driver handed the black male some cash. Det. Thoreson described this in his affidavit as a "short term stop" or a "hand to hand" transaction. While the first transaction was taking place, another vehicle pulled up and stopped in the middle of the street. The male from the residence went to the driver's window of the second car and handed the driver something. Both transactions lasted less than two minutes. SOI#11 had previously identified Matthew, the first driver in the above-described transactions, as a meth purchaser.
On the next day, July 16, 2014, police again surveilled the South Summit Avenue home. They observed Mr. Malek exit the home and enter a black Dodge Charger vehicle. Mr. Malek left and drove an erratic route to a motel. He entered room #104 at the hotel, stayed for 18 minutes, then left again. He again drove an erratic route back to the South Summit Avenue house. Upon arrival, he parked on the roadside, staying inside the vehicle. After five minutes, he left and drove around the area, returning in a few minutes. Det. Thoreson described this as a "bum run, " a ploy used by drug traffickers to see if they are being followed by police.
On July 21, 2014, at approximately 4 p.m. the police observed the black Dodge Charger described above parked near room #104 of the same hotel. Later, at 10:30 p.m., they observed the same Charger parked in the driveway at the South Summit Avenue house.
On July 22-24, 2014 police verified that room #104 at the previously-described hotel was rented to Mr. Malek. Hotel management identified Mr. Malek. Police learned that Mr. Malek had been staying at this hotel since July 11, 2014. He paid the hotel $938.56 in cash and was due to check out of the hotel the next day. On July 28, 2014 police verified that Mr. Malek had indeed checked out of the hotel.
Det. Thoreson stated in his affidavit that drug traffickers often stay at one location, while storing their drug supply at a second location, the "stash house." The officer noted that while Mr. Malek had stayed at one hotel for approximately two years (the location where police investigated the larceny), he had rented room #104 for only two weeks.
On July 24, 2014 police observed Mr. Malek's black Dodge Charger parked at the South Summit Avenue home at 1:00 p.m.
On July 26, 2014, police responded to a report of a disturbance at a bar on 41st Street in Sioux Falls. The previously-described Charger was reportedly involved in the disturbance. When police attempted to initiate a traffic stop on that vehicle, Mr. Malek, driving, took off at a high rate of speed and escaped from police. This resulted in an arrest warrant for aggravated eluding being issued for Mr. Malek. The registered owner of the black Dodge Charger was someone other than Mr. Malek. When police contacted the owner, the owner told them that he allowed a black African guy to take his car, but the owner professed not to know the man's name or phone number.
At 11:00 a.m. on July 28, 2014 the tan Chevrolet Tahoe previously identified by SOI#5 and SOI#7, and seen on July 14 by police at the Summit Avenue home, was again ...