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United States v. Marks

United States District Court, S.D. Texas, Corpus Christi Division

January 16, 2018

LORETTA MARKS, et al., Defendants.



         Before the Court is Defendant Loretta Marks's amended motion to suppress evidence and for the return of property (D.E. 153). One of twelve defendants named in the superseding indictment (D.E. 7), Marks is charged with (1) one count of conspiring to launder the proceeds of an illegal gambling business, in violation of 18 U.S.C. § 1956; and (2) one count of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. She has moved to suppress evidence and to return property seized pursuant to search warrants relating to four residential addresses and a safe deposit box. For the reasons below, the motion is DENIED.


         This case arises from an investigation into illegal gambling operations in South Texas. As described in the affidavits accompanying the various search warrant applications, federal law enforcement agents learned from a cooperating defendant in December 2015, that Marks was operating an illegal gambling room called the Copper Penny in Woodsboro, Texas. The affidavit states that the Copper Penny housed a large number of electronic “8-liners, ” games of chance similar to slot machines, which are prohibited by Texas law when configured to allow a player to win more than $5 per spin. See Tex. Penal Code §§ 47.01, 47.03. Marks did not herself own all of the machines in the Copper Penny. Rather, she allowed the machines' owners to keep them there in exchange for the lion's share of the profits.

         In June 2016, the cooperating defendant approached Marks under the guise of getting involved in gambling operations at the Copper Penny. Marks agreed to allow the cooperating defendant to install up to twenty machines in exchange for 80% of the machines' profits.

         Between July and December 2016, the cooperating defendant maintained approximately eleven machines at the Copper Penny. During that time, the cooperating defendant, or an undercover federal agent pretending to be the cooperating defendant's associate, met with Marks at least eight times, either at the Copper Penny, or at a residential address in Agua Dulce, Texas, which Marks said was her office. Over the course of these meetings, the cooperating defendant and the undercover agent collected over $40, 000 in cash, representing their share of the Copper Penny's proceeds.

         During one such visit, in November 2016, Marks drove the cooperating defendant to an address on La Paloma Road in Bishop, Texas, which Marks said housed another of her game rooms. Subsequent surveillance confirmed that there was indeed an illegal gaming room operating at the Bishop address.

         In December 2016, Marks wound down her operations at the Copper Penny. Shortly before doing so, she told the undercover agent that she was closing the Copper Penny because federal law enforcement had recently discovered the only other gambling room in Woodsboro. She told the undercover agent to delete his text messages and not to call her. A week later, law enforcement surveillance watched as Marks's associates removed the gambling machines from the Copper Penny.

         The next week, in a meeting in her Agua Dulce office, Marks invited the undercover agent to join her operation in a different gambling room, located on County Road 30 in Robstown, Texas. Approximately five machines, ostensibly belonging to the undercover agent, were installed at that room in February 2017. Later surveillance confirmed the machines in this room also offered payouts in excess of those permitted by Texas law.

         By April, the investigators were ready to bust the ring. On or around April 27, 2017, federal law enforcement agents applied for search warrants to search Marks's Agua Dulce office, the game rooms in Bishop and Robstown, and Marks's residence in Sealy, Texas. Law enforcement identified the Sealy residence through public records, bank account records, officer surveillance, and GPS “ping” data showing where Marks used her cell phone.

         The federal magistrate judge issued the requested warrants. While executing the warrant to search the Sealy address, federal agents found and broke open several safes, where they discovered large amounts of cash, among other things, hidden inside. The agents also seized certain property found during the search, including Marks's Cadillac Escalade and several luxury watches.

         Finally, the search of the Sealy residence discovered records referencing a safe deposit box at a Citizens Bank branch in Sealy. Law enforcement secured a warrant to search that safe deposit box and found approximately $279, 000 inside.

         Marks now asks the Court to suppress the fruits of the searches and order the seized property returned to her.


         A. The Good Faith Exception Applies

         The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The customary remedy for a Fourth Amendment violation is to exclude the illegally obtained evidence from trial. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).

         The “sole purpose” of the exclusionary rule, however, is “to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37 (2011). For that reason, the “good faith exception” to the exclusionary rule “bars the application of the exclusionary rule to exclude evidence obtained pursuant to a warrant if law enforcement officers act under an objectively reasonable, good faith belief that the search warrant in question is valid-even if it, in fact, is not.” United States v. Jarman, 847 F.3d 259, 264 (5th Cir. 2017).

         The Fifth Circuit employs a two-step process to evaluate a motion to suppress the fruits of a search conducted pursuant to a warrant. See United States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014). First, the Court considers whether the good faith exception applies; if it does, “the court need not reach the question of probable cause.” Id. (quoting United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997)) (internal quotation mark omitted); see also United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015) (“Our analysis usually ends if the good faith exception applies.”).[1] The second step of the analysis, which is necessary if no good faith exception applies, “requires the court ‘to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed.'” Massi, 761 F.3d at 525 (quoting Pena-Rodriguez, 110 F.3d at 1129).

         Courts have identified four scenarios when the good faith exception will not apply:

(1) when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) when the issuing magistrate wholly abandoned his judicial role; (3) when the warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and (4) when the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.

United States v. Woerner, 709 F.3d 527, 533-34 (5th Cir. 2013). Marks has challenged (1) whether probable cause existed to issue the warrants; and (2) whether the warrants were sufficiently particularized.

         1. The Warrant Applications Provided Sufficient ...

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