United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON AMENDED MOTION TO SUPPRESS AND FOR THE
RETURN OF PROPERTY
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
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.
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
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
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
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.
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.
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.
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.
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.
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.
now asks the Court to suppress the fruits of the searches and
order the seized property returned to her.
The Good Faith Exception Applies
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).
“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.
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.”). 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).
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.
The Warrant Applications Provided Sufficient ...