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United States v. Xiang.

No. 20-1070.  D.Colo. Judge Carson. Fourth Amendment—Search and Seizure—Motion to Suppress—Good Faith Reliance on Search Warrant—Reckless Omission of Material Information from Affidavit—Motion for Judgment of Acquittal.

September 6, 2021

The government sought a warrant to search suspected marijuana grow houses as part of an investigation into a marijuana drug trafficking organization involving Chinese nationals. One home identified in the warrant affidavit was owned by You Lan Xiang and Huanyu Yan (collectively, defendants), who were married. In its warrant application, the Drug Enforcement Administration (DEA) task force officer (affiant) stated that the government identified grow homes, in part, by looking at utility billing records that list monthly electrical usage. Based on its steady excess electrical use, the affiant identified defendants’ home as a target location. The affiant also stated that while surveilling defendants’ home, he observed a parked car registered to defendant “Youlan Xiang,” and while observing another house with steady excess electrical use (Nevada house), the officer observed a different car registered to “You Xiang.”

The magistrate judge found probable cause and issued the warrant. DEA agents executed the warrant and found 878 marijuana plants and marijuana cultivation equipment in defendants’ basement. Defendants were each charged with conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants, manufacturing and possessing with intent to distribute 100 or more marijuana plants, and using and maintaining a drug-involved premises.

Defendants moved to suppress the evidence seized from their home, arguing that elevated electrical usage alone could not support a probable cause determination. The district court denied the motion. Defendants were tried jointly. Xiang testified that she had no idea that Yan operated a marijuana grow in their basement. Yan moved for judgment of acquittal at the end of the government’s case, arguing there was insufficient evidence to sustain a conspiracy conviction. The district court denied the motion, and the jury found defendants guilty on all counts.

On appeal, defendants argued that the district court erred in denying their motions to suppress because the affiant’s reckless failure to confirm the car owners’ identities invalidated the warrant. Under the good faith exception, even if a warrant is not supported by probable cause, evidence seized in good-faith reliance on the warrant is not subject to suppression, unless the affiant knowingly or recklessly omitted material information from the affidavit and without the material omission the corrected affidavit does not support a finding of probable cause. To establish such recklessness, evidence must exist that an affiant entertained serious doubts as to the truth of the allegations. Here, the affiant testified that the DEA analyst did not provide him with the middle name for the You Xiang linked to the Nevada house, so he did not realize the cars were owned by different people. The affiant only learned that the individual linked to the Nevada house was not defendant Xiang after executing the warrant. Accordingly, the record lacked evidence that the affiant entertained serious doubt as to the truth of the allegations, and he was unaware the car owners were not the same person. Accordingly, the district court did not err in finding that affiant’s omission was at most negligent. Therefore, the good faith exception to the warrant requirement applied and precluded suppression of the seized evidence.

Yan argued that the government failed to meet its burden because it did not offer sufficient evidence of an agreement to violate the law. However, while Xiang’s presence at the crime scene alone was insufficient to support an inference of participation in a conspiracy, presence is a material and probative factor the jury could consider. Here, there was evidence that defendants’ home housed 878 marijuana plants and cultivation equipment, and a jury could reasonably infer that Xiang was aware of and consented to Yan’s criminal activity in the home.

The rulings were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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