A F F I D A V I T - extras.mnginteractive.comextras.mnginteractive.com/live/media/site208/2013/0206/20130206... · A F F I D A V I T I, ... arrest and search warrants. ... During

A F F I D A V I T

I, Lenin Contreras, being duly sworn, declare and state:

TRAINING AND BACKGROUND OF THE AFFIANT

1. I am an investigative and law enforcement officer of the United States within

the meaning of Title 21, United States Code, Section 878, who is empowered to conduct

investigations of, and to make arrests for, the offenses enumerated in Titles 18 and 21, United

States Code.

2. I am a Special Agent (“SA”) of the Drug Enforcement Administration (“DEA”)

and have been so employed since January 2012. I am currently assigned to the Riverside

District Office (“RDO”), Riverside, California, in an enforcement group investigating narcotics

trafficking and money laundering violations under Titles 18 and 21 of the United States Code.

I have received 16 weeks of specialized training in Quantico, Virginia, pertaining to narcotics

trafficking, money laundering, undercover operations, and electronic and physical surveillance

procedures. I have assisted with investigations dealing with the possession, manufacturing,

distribution, and importation of controlled substances.

3. In narcotics and narcotics money laundering investigations, I have been trained

in a variety of investigative techniques and resources, including physical and electronic

surveillance, the analysis of telephone records, and the use of various types of informants and

cooperating sources. I have assisted in undercover operations and I have executed various

arrest and search warrants. I have debriefed informants. Through these investigations, my

training and experience, and my conversations with other law enforcement investigators, I

have become familiar with the methods used by narcotics traffickers to smuggle and safeguard

narcotics, to distribute narcotics, and to collect and launder proceeds related to the sales of

narcotics. I am familiar with the methods employed by large-scale narcotics organizations

in attempts to thwart detection by law enforcement including, but not limited to, the use of

cellular telephone technology, counter-surveillance techniques, elaborately planned smuggling

schemes tied to legitimate businesses, false or fictitious identities, and coded communications

and conversations.

4. Further, I am also familiar with California “medical marijuana” laws and attempts

to distribute marijuana through storefront locations. In my current assignment with DEA, I

have conducted and participated in the investigation of marijuana cultivation and distribution

and of marijuana stores in particular. I have also conducted and participated in the execution

of search warrants of “medical marijuana” stores. During the execution of the search warrant,

I have seen marijuana plants, processed marijuana, and the many derivatives of marijuana,

including hashish, hash oil, and edible and topical products containing marijuana. I have seen

financial documents associated with the business, including but not limited to receipts, notes,

ledgers, tally sheets, invoices, tax documents, bank records, and other papers, to be maintained

within the business. I have also seen computers, thumb drives, external hard drives, and other

data storage devices used to maintain business records.

5. This affidavit is submitted solely to establish probable cause for the requested

search warrants and does not purport to set forth all of my investigation or knowledge of

this matter. The facts and information contained in this affidavit are based on my personal

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knowledge, as well as that of other law enforcement officers involved in this investigation.

PURPOSE OF THIS AFFIDAVIT & PREMISES TO BE SEARCHED

6. This affidavit is submitted in support of search warrants for the following

locations for evidence, fruits, and instrumentalities of violations of Title 21, United States Code,

Sections 841(a), 846, and 856(a)(1) (possession with intent to distribute and distribution of

a controlled substance, namely, marijuana, a Schedule I controlled substance; conspiracy to

distribute a controlled substance, namely, marijuana; and maintaining drug-involved premises),

as further described below and in Attachment A:

a. 1996 North Del Rosa Avenue, San Bernardino, California 92404, including

all rooms, attics, basements, and other parts therein, any garages or parking spaces, storage

rooms, trash containers, safes, and any out buildings of any kind located thereon associated

with the property (SUBJECT PREMISES 1). SUBJECT PREMISES 1 is the location of the marijuana

store, Kush Concepts East.

i. A more detailed description of SUBJECT PREMISES 1 search

location is as follows:

ii. The SUBJECT PREMISES 1 is in a commercial building single unit

with dark tinted glass side paneling, stone facade and three glass doors. The building appears

to be a former McDonald’s fast food restaurant. The premises has commercial grade signs with

three green crosses on the tinted window paneling on the east side, to the left of the middle

glass door on the east side a red neon sign with lettering of “OPEN” frame in blue/purple neon,

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the business signs describe above face east towards North Del Rosa Avenue, San Bernardino,

California. Numbers “1996” in black on the white background are posted on the lower left side

of the roof on the east side of the building. On the north side of the building a glass door is

used as the entry and exit door into the business by customers. Subject Premises 1 is a stand-

along structure with no businesses sharing the same building.

b. 1600 North Arrowhead Avenue, San Bernardino, California 92405,

including all rooms, attics, and other parts therein, any, storage rooms and safes located

thereon (SUBJECT PREMISES 2), and associated with the specific unit described below.



ii. The SUBJECT PREMISES 2 is in a commercial building with multiple

units with glass slide paneling. The premise is in a two story commercial building brown in

color with green in color doors on the street level floor. The building has a brown in color iron

fence around the building; the building is numbered “1600” in white numbers centered on the

top side of the building. SUBJECT PREMISES 2 is located on the second floor of the commercial

building and is the far north end unit in the building facing east on North Arrowhead Avenue,

San Bernardino, California. The unit has two tinted glass doors with each having a commercial

grade green cross sign on each door. The unit is the only unit to have tinted windows as

opposed to other units, located in the same building. To the rear of SUBJECT PREMISES 2 a

black in color security screen door is the access point to the premise. The door has a green light

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just above the left side of the door frame a feature that no other doors had on the second floor.

c. 305 West 40 Street, San Bernardino, California 92407, including all

rooms, attics, and other parts therein, any, storage rooms and safes located thereon, and

associated with the specific unit described below (SUBJECT PREMISES 3).



ii. The SUBJECT PREMISES 3 is in a commercial building with multiple

units with white in color facade. SUBJECT PREMISES 3 in contrast to the other units is painted

in bright lime green color and one black in color security door with a window next to each side

of the door. The door has a large green cross sign attached to the screen door. The premise

has an appearance commonly associated with a town home and as a matter a fact appears

to be recently converted from a residential structure to a commercial unit. The front of the

business faces north towards West 40 Street, San Bernardino, California.

d. 3577 Manzanita Drive, San Bernardino, California 92404, including all

rooms, attics, basements, and other parts therein, any garages or parking spaces associated

with the property, storage rooms, trash containers, safes, and any out buildings of any kinds

located thereon (SUBJECT PREMISES 4).



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ii. The SUBJECT PREMISES 4 is a three

level residence painted in white and grey colors with brick columns and partial brick facades.

SUBJECT PREMISES 4 has a black in color iron fence on the balcony level facing Manzanita Drive.

The residence is about 2,746 square feet in size on a 11,760 square feet lot with a pool and a

Jacuzzi in the backyard. The front of SUBJECT PREMISES 4 faces west on Manzanita Drive. The

curb in front of SUBJECT PREMISES 4 has been numbered 3577 in black lettering in a white

background at the street level. SUBJECT PREMISES 4 is also has a white sign with numbers 3577

in black and to the front of the sign a white mail box is installed. SUBJECT PREMISES 4 is further

described as having a three car garage with two white in color garage doors one large for two

cars side by side, the other garage door smaller for one car. SUBJECT PREMISES 4 is the last

residence facing west on Manzanita Drive, north of the residence there is a hill which is part of

the property at 2205 Willow Drive, San Bernardino, California. SUBJECT PREMISES 4 is on

Manzanita Drive with Willow Drive north of it, and Mesquite Drive south of it, and connecting

with the nearest major road Foothill Drive.

7. As set forth in this affidavit, I submit that there is probable cause to believe that

the SUBJECT PREMISES 1, SUBJECT PREMISES 2, SUBJECT PREMISES 3 and SUBJECT PREMISES

4 contain marijuana stores, and or at which marijuana, marijuana proceeds and/or pertinent

documents are located.

TRAINING AND EXPERIENCE REGARDING MARIJUANA STORES

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8. Marijuana is a Schedule I controlled substance, which under

federal law means that it is not recognized as having any medical value, and any possession,

distribution, or cultivation of it is in violation of federal law. I have confirmed with an Assistant

United States Attorney, with whom I have consulted regarding this affidavit and the search

warrant requested herein, my understanding that any distribution of marijuana is a violation of

federal law, regardless whether it is exempt from prosecution under California or other state

laws. See Gonzales v. Raich, 545 U.S. 1 (2006) (holding that Controlled Substances Act, even as

applied to intrastate possession of marijuana, is within Commerce Clause powers); United

States v. Oakland Cannabis Buyers Co-op., 532 U.S. 483 (2001) (holding that no medical

necessity defense exists to prohibitions on manufacture and distribution of marijuana under

the Controlled Substances Act). I am also aware that the sale of marijuana, including sales

occurring inside marijuana stores, regardless of their self-identification as “collectives,” is a

violation of California’s “medical marijuana” laws.

9. Based on my training and experience, and discussion with senior investigators

in my group, I am aware that “medical marijuana” stores are retail establishments selling

marijuana to customers, purportedly for medical reasons. Further, based on my training and

experience, I know that many of these stores seek protection under California’s “medical

marijuana” laws but, in fact, operate entirely to sell marijuana for profit. However, California

law does not authorize “any individual or group to cultivate or distribute marijuana for profit”;

to the contrary, I am aware that California state law prohibits the sale of marijuana for profit.

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10. Also based on my training and experience, I know the following regarding the

operation of “medical marijuana” stores:

a. Proprietors of marijuana stores often invest in several different stores at

once to maximize profits;

b. Proprietors of marijuana stores often buy their marijuana from several

different vendors to obtain different varieties of marijuana and marijuana edibles;

c. Proprietors of marijuana stores hide their association with the store to

shield themselves from criminal prosecution or civil litigation. Proprietors of marijuana stores

will use either fictitious identities or the names of lower-level members of the organization

when subscribing to utilities or establishing rental agreements related to the store;

d. Marijuana stores often sell several different varieties of marijuana

products including marijuana plants, both mature and immature (clones); hash; hash oil; kief

(concentrated cannabis); topical lotions and ointments; marijuana edibles, including baked

goods, candies, drinks, ice cream, soups, and the like;

e. Marijuana stores coordinate with several cultivators and will often have

an abundance of processed marijuana. This abundance leads stores to not only sell marijuana

to retail customers at the store, but to sell wholesale to other stores or distributors, including

ones across state lines;

f. Marijuana stores often use armed security guards to protect their

marijuana and marijuana proceeds from robbery and theft. They will also keep all doors locked

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to restrict free access to the store, and often have video surveillance cameras installed inside

and outside of the premises;

g. Marijuana stores will often have firearms, such as handguns, shotguns,

and rifles at the store to protect their marijuana and the large amount of cash associated with

the business. These firearms can be found in the possession of designated security personnel,

or accessible to multiple employees through their storage at cash registers, counters, and other

similar or central locations within the store.

h. Marijuana stores will, in some instances, purposely not display the name

of their store, so as to not draw attention by law enforcement officials and the general public;

i. Marijuana stores conduct most of their transactions with cash and large

amounts of cash are maintained at the stores and at the owners’ places of residence, and are

often transported in vehicles used by the owners, operators, and their trusted associates;

typically amounts of over $2,000 at such locations are from marijuana distribution activities

rather than from legitimate, legal activity;

j. Proprietors of marijuana stores often make purchases of high-value items

with cash in order to conceal their amassed wealth;

k. Marijuana stores use computers and other digital devices to conduct

business, including maintaining customer records, documents and other materials, such as sales

figures and product availability;

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l. Marijuana stores often keep records and materials concerning their

suppliers and transactions in the store as well as at other locations associated with the

operation. Sometimes marijuana stores have multiple versions of their financial books,

for example, one version for taxing authorities containing artificially reduced figures and

information, and one version with actual figures and information for use by the store operators

and owners. The “true” version of the books and records are often kept at homes of store

operators and owners or their trusted associates, as they feel that such residences are more

safe from detection by law enforcement;

m. Marijuana stores often keep records and materials concerning their

suppliers and transactions on computers kept within the store;

n. The operators of marijuana stores will often license, rent, or otherwise

arrange for automatic teller machines to be placed within the premises of the store. These

bank machines are typically used exclusively for the purchase of products at the marijuana

store and to facilitate the sale of such products, and they also contain records of marijuana

transactions at the store;

o. Marijuana store owners acquire, through leasing or purchasing, other

properties at which they cultivate marijuana, which they sell through their stores to generate

greater profits. Records, documents, programs, applications, or materials reflecting these

transactions are often kept at their residences, stores, and other locations connected to their

organizations.

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OTHER EXPERIENCE REGARDING NARCOTICS TRAFFICKING

11. I have had experience, training, and communications with law enforcement

personnel who specialize in the area of documentation and detection of proceeds from drug

trafficking. I also have experience in debriefing defendants and informants as witnesses

who have personal knowledge of drug trafficking organizations. Such individuals often have

knowledge regarding the methods of transportation and distribution of the drugs and money

in large-scale controlled substance distribution operations, including marijuana. Based on my

training, experience, and speaking to other agents and law enforcement personnel who are

experts in the area, I also know the following:

a. That drug traffickers use various locations to serve different functions so

that customers, thieves, and law enforcement personnel do not learn about any one location

where large quantities of narcotics, money, and/or other drug-related assets are stored.

Therefore, one or more locations are often used to store lesser amounts of narcotics, money,

and/or drug related assets, and additional locations are used to meet customers;

b. That persons involved in large-scale drug trafficking conceal, in various

locations, caches of drugs, drug paraphernalia, jewelry, automobiles, automobile titles, deeds

to property, and other items of value and/or proceeds of drug transactions and evidence of

financial transactions relating to obtaining, transferring, secreting, or spending large sums of

money acquired from engaging in narcotics trafficking activities;

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c. That drug traffickers have maintained at their locations, including

the residences where they live, and in their vehicles, money, ledgers, narcotic supplier lists,

correspondence, notations, logs, receipts, journals, books, records and other materials noting

the price, quantity, and/or times when narcotics were obtained, transferred, sold, distributed,

and/or concealed; that drug traffickers also maintain drug paraphernalia such as cutting

materials, weighing devices, miscellaneous containers, and measuring devices which are used

to facilitate the distribution of narcotics;

d. Traffickers use telephones, portable cellular and digital telephones,

pagers and other communication devices sometimes in fictitious and/or other individuals’

names. Traffickers commonly receive telephone calls and messages on telephone answering

machines and phones from individuals seeking to conduct narcotics transactions. As a result,

traffickers often maintain in their residences, vehicles, and locations where they conduct

transactions, records and items that reflect or contain names, addresses, and/or telephone

numbers for their associates in the drug trafficking organization, or are otherwise used as part

of trafficking activity, even if said records may be in code. Such records and items include

telephone address books and telephone listings, text messages, voice mails, answering machine

recordings, communication devices such as Personal Digital Assistants, as well as letters, cables,

telegrams, telephone bills, text messages, photographs, e-mails, fax messages, and personal

notes reflecting names, identities, addresses, and telephone numbers.

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e. That when drug traffickers amass large quantities of cash from the sale

of drugs, they often attempt to legitimize these profits through the use of banks and financial

institutions and their attendant services that include accounts, securities, traveler’s checks,

cashier’s checks, money orders, wire transfers, stock certificates, bonds, certificates of deposit,

and safety deposit boxes;

f. That drug traffickers often place assets in names of relatives and close

friends in order to avoid detection of those assets by law enforcement agencies; and that even

though these assets are in other persons’ names, the drug dealers retain records, documents,

and deeds reflecting the purchase of those assets while continuing to use those assets and

exercise dominion and control over them;

g. That it is common practice for large-scale narcotic traffickers to travel

to their purchase and distribution areas to facilitate their trafficking; that after purchasing

drugs, narcotic traffickers will transport or cause to be transported narcotics to areas in which

they will distribute the drugs; and that methods of transportation include rental and private

automobiles, commercial airlines, private airplanes, trains, vessels, and government and

contract mail carriers;

h. That drug traffickers take or cause to be taken photographs of

themselves, their associates, their property and their product; and that these traffickers usually

maintain these photographs at their premises;

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i. That drug traffickers commonly have in their possessions, that is on their

persons, in their vehicles, at their residences and/or at their stash houses, firearms, including

handguns, pistols, revolvers, rifles, shotguns, machine guns and other weapons, that are used

to protect and secure the drug trafficker’s property, including narcotics, narcotic paraphernalia,

currency, jewelry, and records;

j. That drug traffickers often keep records of their illegal activities for a

period of time extending beyond the time during which they actually possess illegal controlled

substances, in order to maintain contact with their criminal associates for future drug

transactions, and so that they can have records of prior transactions for which, for example, a

trafficker might still be owed money, or might owe someone else money. I am aware of cases

in which traffickers have maintained evidence of prior trafficking activities for two years after

those activities.

TRAINING AND EXPERIENCE ON DIGITAL DEVICES

12. As used herein, the term “digital device” includes any electronic system or device

capable of storing or processing data in digital form, including central processing units; desktop,

laptop, notebook, and tablet computers; personal digital assistants; wireless communication

devices, such as telephone paging devices, beepers, mobile telephones, and smart phones;

digital cameras; peripheral input/output devices, such as keyboards, printers, scanners,

plotters, monitors, and drives intended for removable media; related communications devices,

such as modems, routers, cables, and connections; storage media, such as hard disk drives,

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floppy disks, memory cards, optical disks, and magnetic tapes used to store digital data

(excluding analog tapes such as VHS); and security devices. Based on my knowledge, training,

and experience, as well as information related to me by agents and others involved in the

forensic examination of digital devices, I know that data in digital form can be stored on a

variety of digital devices and that during the search of a premises it is not always possible to

search digital devices for digital data for a number of reasons, including the following:

a. Searching digital devices can be a highly technical process that require

specific expertise and specialized equipment. There are so many types of digital devices

and software programs in use today that it is impossible to bring to the search site all of the

necessary technical manuals and specialized equipment necessary to conduct a thorough

search. In addition, it may be necessary to consult with specially trained personnel who have

specific expertise in the types of digital devices, operating systems, or software applications

that are being searched.

b. Digital data is particularly vulnerable to inadvertent or intentional

modification or destruction. Searching digital devices can require the use of precise, scientific

procedures that are designed to maintain the integrity of digital data and to recover “hidden,”

erased, compressed, encrypted, or password-protected data. As a result, a controlled

environment, such as a law enforcement laboratory or similar facility, is essential to conducting

a complete and accurate analysis of data stored on digital devices.

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c. The volume of data stored on many digital devices will typically be

so large that it will be highly impractical to search for data during the physical search of the

premises. A single megabyte of storage space is the equivalent of 500 double-spaced pages

of text. A single gigabyte of storage space, or 1,000 megabytes, is the equivalent of 500,000

double-spaced pages of text. Storage devices capable of storing 500 or more gigabytes are now

commonplace. Consequently, just one device might contain the equivalent of 250 million pages

of data, which, if printed out, would completely fill three 35’ x 35’ x 10’ rooms to the ceiling.

Further, a 500 gigabyte drive could contain as many as approximately 450 full run movies or

450,000 songs.

d. Electronic files or remnants of such files can be

recovered months or even years after they have been downloaded onto a hard drive, deleted,

or viewed via the Internet. Electronic files saved to a hard drive can be stored for years with

little or no cost. Even when such files have been deleted, they can be recovered months or

years later using readily-available forensics tools. Normally, when a person deletes a file on a

computer, the data contained in the file does not actually disappear; rather, that data remains

on the hard drive until it is overwritten by new data. Therefore, deleted files, or remnants of

deleted files, may reside in free space or slack space, i.e., space on a hard drive that is not

allocated to an active file or that is unused after a file has been allocated to a set block of

storage space, for long periods of time before they are overwritten. In addition, a computer’s

operating system may also keep a record of deleted data in a swap or recovery file. Similarly,

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files that have been viewed on the Internet are often automatically downloaded into a

temporary directory or cache. The browser typically maintains a fixed amount of hard drive

space devoted to these files, and the files are only overwritten as they are replaced with more

recently downloaded or viewed content. Thus, the ability to retrieve residue of an electronic

file from a hard drive depends less on when the file was downloaded or viewed than on a

particular user’s operating system, storage capacity, and computer habits. Recovery of residue

of electronic files from a hard drive requires specialized tools and a controlled laboratory

environment. Recovery also can require substantial time.

e. Although some of the records called for by this

warrant might be found in the form of user-generated documents (such as word processing,

picture, and movie files), digital devices can contain other forms of electronic evidence as well.

In particular, records of how a digital device has been used, what it has been used for, who has

used it, and who has been responsible for creating or maintaining records, documents,

programs, applications and materials contained on the digital devices are, as described further

in the attachments, called for by this warrant. Those records will not always be found in digital

data that is neatly segregable from the hard drive image as a whole. Digital data on the hard

drive not currently associated with any file can provide evidence of a file that was once on the

hard drive but has since been deleted or edited, or of a deleted portion of a file (such as a

paragraph that has been deleted from a word processing file). Virtual memory paging systems

can leave digital data on the hard drive that show what tasks and processes on the computer

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were recently used. Web browsers, e-mail programs, and chat programs often store

configuration data on the hard drive that can reveal information such as online nicknames and

passwords. Operating systems can record additional data, such as the attachment of

peripherals, the attachment of USB flash storage devices, and the times the computer was in

use. Computer file systems can record data about the dates files were created and the

sequence in which they were created. This data can be evidence of a crime, indicate the

identity of the user of the digital device, or point toward the existence of evidence in other

locations. Recovery of this data requires specialized tools and a controlled laboratory

environment, and also can require substantial time.

f. Further, evidence of how a digital device has been used, what it has

been used for, and who has used it, may be the absence of particular data on a digital device.

For example, to rebut a claim that the owner of a digital device was not responsible for a

particular use because the device was being controlled remotely by malicious software, it may

be necessary to show that malicious software that allows someone else to control the digital

device remotely is not present on the digital device. Evidence of the absence of particular data

on a digital device is not segregable from the digital device. Analysis of the digital device as a

whole to demonstrate the absence of particular data requires specialized tools and a controlled

laboratory environment, and can require substantial time.

g. Other than what has been described herein, to my knowledge, the United

States has not attempted to obtain this data by other means.

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h. Based upon my training and experience I know that marijuana

dispensaries will store records of sales and plans for grow operations on their computers. It

is also common for marijuana dispensaries and workers of the dispensaries to store photos of

marijuana, marijuana plants and their marijuana grows. I also know the computers are used to

store the dispensaries inventory of what they have on hand and what they need to order.

STATEMENT OF PROBABLE CAUSE

13. As set forth in greater detail below, this investigation has established that Joseph

Timothy Bixler is the primary owner/operator of three marijuana stores: Kush Concepts East,

which is located at the SUBJECT PREMISES 1, Kush Concepts West, which is located at the

SUBJECT PREMISES 2 and Kush Concepts North, which is located at the SUBJECT PREMISES 3.

Bixler is the primary resident at SUBJECT PREMISES 4. There is probable cause to believe that

each of the SUBJECT PREMISES contained illicit narcotics, namely, marijuana, illegal proceeds

from narcotics sales, pertinent documents and other evidence related to the operation of the

illegal Kush Concepts operation.

14. On November 19, 2012, I spoke with City of San Bernardino City Attorney

Investigator Supervisor Robert Peppler regarding his office’s investigation of the Kush Concepts

stores. Based on my conversation with Peppler, follow-up conversations with him, a review of

San Bernardino’s Code Enforcement’s Investigative reports, and my investigation in this matter,

I know the following:

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a. On November 15, 2012, between 2:00 p.m. and 3:15 p.m., San

Bernardino City Attorney Investigator (Inv.) Renato Giannini responded to the SUBJECT

PREMISES 1, SUBJECT PREMISES 2 and SUBJECT PREMISES 3 to investigate possible marijuana

stores at those locations. The following occurred:

i. Upon entering SUBJECT PREMISES 2 at approximately 2:00 p.m.,

Inv. Giannini observed what he suspected to be marijuana in several glass jars inside. Inv.

Giannini reported that he spoke to a male subject inside of SUBJECT PREMISES 2, who reported

everything was ok. Inv. Giannini while inside SUBJECT PREMISES 2 smelled a strong odor of

marijuana. Inv. Giannini obtained a business card from SUBJECT PREMISES 2 with a Kush

Concepts logo.

ii. Upon entering SUBJECT PREMISES 1 at approximately 2:10 p.m.,

Inv. Giannini smelled a strong odor of marijuana inside SUBJECT PREMISES 1. Inv. Giannini

contacted Joseph Timothy Bixler the owner of SUBJECT PREMISES 1. Inv. Giannini was told

by Bixler that business was good and no problems had occurred at the business. Inv. Giannini

observed several subjects enter SUBJECT PREMISES 1. Inv. Giannini obtained a business card

from SUBJECT PREMISES 1 with a Kush Concepts logo, the logo was the same logo used for the

business card at SUBJECT PREMISES 2.

iii. Upon entering SUBJECT PREMISES 3 at approximately 3:15 p.m.,

Inv. Giannini with Investigator D. Blum made contact with a male subject known to them as

Fernando who is a worker at SUBJECT PREMISES 3. Inv. Giannini reported SUBJECT PREMISES

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3 was open for business and noted several male subjects seated at a small table in a back room.

Inv. Giannini reported that the subjects appeared to be smoking marijuana. Inv. Giannini

observed a cloud of smoke in the room and smelled a very strong odor of marijuana. Inv.

Giannini reported that several customers were present at SUBJECT PREMISES 3. Inv. Giannini

obtained a business card from SUBJECT PREMISES 3 with a Kush Concepts logo.

15. Based on my participation in the operation, I know that on

November 19, 2012, at 11:00 a.m., DEA Special Agents Kathleen Goode, Task Force Officer

Joshua Conley, Group Supervisor Francis Pepper and I, spoke to Joseph Timothy Bixler at

SUBJECT PREMISES 1. Bixler approach me after I had asked for the owner/operator of SUBJECT

PREMISES 1 and without being arrested was asked for his identifying information since I had

not contacted him before. During the conversation, Bixler identified himself as the owner of

SUBJECT PREMISES 1, SUBJECT PREMISES 2 and SUBJECT PREMISES 3 and claimed to be the

legal primary resident at SUBJECT PREMISES 4. Bixler stated he co-owns all three marijuana

dispensaries with Alex Bishaw who he said is the money person and helped him open the store

and set up under Kush Concepts LLC. I told Bixler and employees’ that operating a marijuana

store is illegal federally and that they need to cease and desist operations of all marijuana

dispensaries. Bixler stated he understood and would close all three Kush Concepts marijuana

stores, Kush Concepts East (SUBJECT PREMISES 1), Kush Concepts West (SUBJET PREMISES 2),

and Kush Concepts North (SUBJECT PREMISES 3). In addition, upon entering SUBJECT PREMISES

1, that day I observed several jars of processed marijuana, edibles advertise to contain

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marijuana, and marijuana paraphernalia displayed for sale. I smelled a strong odor of

marijuana at SUBJECT PREMISES 1.

16. From my communication with the City of San Bernardino City Attorney’s Office

Robert Peppler (as also described above), I know that on November 27, 2012, at approximately

8:30 a.m., City of San Bernardino Attorney’s Office Investigators observed SUBJECT PREMISES

1 open for business with customers going in and out. On the same date at approximately 10:20

a.m., the same investigators observed SUBJECT PREMISES 2 open for business and observed

several subjects enter SUBJECT PREMISES 2. On the same date at approximately 3:30 p.m.,

investigators observed SUBJECT PREMISES 3 open for business and observed customers going in

and out.

17. Based on my participation in the operation, I know that On December 20, 2012,

Special Agent (SA) Andrew Ruddell, SA Gabriel Perez and I, checked on the status of SUBJECT

PREMISES 1, SUBJECT PREMISES 2, SUBJECT PREMISES 3 and SUBJECT PREMISES 4. The

following are the observations from this date:

a. At approximately 2:05 p.m., SA’s Ruddell, Perez and I observed SUBJECT

PREMISES 1 open operating as a marijuana dispensary. A sign which indicated the dispensary

was open was on. Three separate customers were observed entering SUBJECT PREMISES

1 though the main entrance and later exited each with a white bag in hand, which with my

training and experience I believe to be marijuana package and dispense to the customers. At

approximately 2:10 p.m., SA’s Ruddell, Perez and I left the area of SUBJECT PREMISES 1.

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b. At approximately 2:20 p.m., SA’s Ruddell, Perez and I observed SUBJECT

PREMISES 2 open and operating as a marijuana dispensary. A sign which indicated the

dispensary was open was on. Two separate customers were observed entering SUBJECT

PREMISES 2 though the main entrance. At approximately 2:30 p.m., SA’s Ruddell, Perez and I

left the area of SUBJECT PREMISES 2.

c. At approximately 2:52 p.m., SA’s Ruddell, Perez and I observed SUBJECT

PREMISES 3 open and operating as a marijuana dispensary. A sign which indicated the

dispensary was open was on. Three separate customers were observed entering SUBJECT

PREMISES 3 though the main entrance. At approximately 3:52 p.m., SA’s Ruddell, Perez and I

left the area of SUBJECT PREMISES 3.

d. At approximately 4:10 p.m., SA’s Ruddell, Perez and I verified the address

for SUBJECT PREMISES 4 and observed it to be occupied and not abandoned.

18. SUBJECT PREMISES 4 shows the Southern California Edison electrical utility

account holder as Joseph Bixler listing the billing address and service address being the same

as SUBJECT PREMISES 4. Joseph Bixler listed as the account holder is further identified by social

security number and California driver’s license number A7202202. Joseph Bixler was confirmed

as being listed for electrical services for SUBJECT PREMISES 4 between July 26, 2012 and

December 24, 2012.

19. On January 8, 2013 at approximately 3:45p.m., SA’s Ruddell and I conducted

surveillance on SUBJECT PREMISES 4 and observed Joseph Timothy Bixler and a 2004 Dodge

23

Ram black in color with California license plate 7P00139 registered Joseph T. Bixler on the

driveway of SUBJECT PREMISES 4 with the garage door open. Bixler was observed to be

speaking to an unknown white male while on the driveway. At approximately 3:50 p.m.,

Bixler and the unknown male subject entered the garage, close the garage door entering

the residence. Via this surveillance it was verified that Bixler was present, controlling and

occupying SUBJECT PREMISES 4 which he had stated to me previously as his primary residence

and that he was the primary occupant. Surveillance was terminated at 4:00 p.m.

20. On or about January 11, 2013, I have visited the website for Weedmaps to

view information for the various Kush Concept marijuana stores. Based on my training and

experience I know that stores pay WeedMaps to advertise and promote their store on that

website, and that customers visit WeedMaps to learn about marijuana stores. Because

marijuana stores usually pay WeedMaps to be listed on that website, is rare that an inactive

store would be listed on the website for a significant period of time. Based on my visit to the

WeedMaps website, I learned the following pertinent information about the Kush Concept

stores:

a. “Kush Concepts East” is listed on the WeedMaps website. The website

lists “1996 Del Rosa Avenue, San Bernardino, California 92404” (SUBJECT PREMISES 1) as

the address and also sets forth operating hours of the store as open 24 hours. The website

also contains detailed information about the price of marijuana sold at the store, the various

marijuana products available there.

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b. “Kush Concepts West” is listed on the WeedMaps website. The website

lists “1600 North Arrowhead Avenue, San Bernardino, California” (SUBJECT PREMISES 2) the

hours of operation were not available. The website also contains detailed information about

the price of marijuana sold at the store, the various marijuana products available there.

c. “Kush Concepts North” is listed on the WeedMaps website. The website

lists “305 West 40 Street, San Bernardino, California, 92407” (SUBJECT PREMISES 3) as the

address and also sets forth operating hours of the store as open from 7:00 a.m. to 2:00 a.m.

The website also contains detailed information about the price of marijuana sold at the store,

the various marijuana products available there.

21. On January 30, 2013 at approximately 9:57 a.m., I conducted surveillance on

SUBJECT PREMISES 1, SUBJECT PREMISES 2 and SUBJECT PREMISES 3.

a. On January 30, 2013, at approximately 9:57 a.m., I arrived at SUBJECT

PREMISES 1. I observed the neon “OPEN” sign to be on and observed the front door to be

open. Approximately between 9:57 a.m., and 10:11 a.m., I observed six different customers

enter though the main entrance of SUBJECT PREMISES 1 and leave SUBJECT PREMISES 1 with a

white package which with my training an experience I believe to be marijuana package for sale.

I terminated my surveillance of SUBJECT PREMISES 1 at approximately 10:11 a.m.

b. On January 30, 2013, at approximately 10:23 a.m., I arrived at SUBJECT

PREMISES 2. I observed the neon “OPEN” sign to be on, at approximately 10:28 a.m., I

observed a customer enter SUBJECT PREMISES 2 through the main entrance door. At

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approximately 10:32 a.m., I observed the same customer leave SUBJECT PREMISES 2 through

the main entrance door carrying a white package. Based on my training an experience I believe

the white package to be marijuana package for sale. I terminated surveillance of SUBJECT

PREMISES 2 at 10:33 a.m.

c. On January 30, 2013, at approximately 10:43 a.m., I arrived at SUBJECT

PREMISES 3 and observed the neon “OPEN” sign to be on and at the same time, I observed one

customer leave through the main entrance door, but no package was visible. At approximately

10:53 a.m., I observed a different customer arrive on a white van and enter SUBJECT PREMISES

3 through the main entrance door. At approximately 10:58 a.m., I observed the same customer

leave SUBJECT PREMISES 3 through the main entrance door carrying a white package on his left

hand and depart in the same white van. Based on my training an experience I believe the white

package to be marijuana package for sale. I terminated surveillance of SUBJECT PREMISES 3 at

11:03 a.m.

22. Based on my training and experience, I believe based on my observations,

combined with the totality of this investigation, indicate that Kush Concepts East, Kush

Concepts West and Kush concepts North are active and running at SUBJECT PREMISES 1,

SUBJECT PREMISES 2, SUBJECT PREMISES 3 and that 3577 Manzanita Drive, San Bernardino,

California 92404 is active as the primary residence of Joseph Timothy Bixler at SUBJECT

PREMISES 4.

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23. Further, the United States Attorney's Office has provided me with the following

case law set forth below that supports my experience and that of other investigators I know

that drug traffickers/distributors, like Bixler, will commonly store evidence of their illegal

activities at their home and vehicles, and that probable cause exists to search for evidence of

drug trafficking at their homes and in their vehicles:

24. "[E]vidence discovered by [] officers linking the defendants to a drug scheme

provide[s] ‘more than a sufficient showing for obtaining the warrant to search [their] ...

residence.’" United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987) (quoting United States

v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985). "In the case of drug dealers, evidence is likely

to be found where the dealers live." United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th

Cir. 1986) (citing United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir. 1979)). "When the

traffickers consist of a ringleader and assistants, a fair probability exists that drugs will be

present at the assistants’ residence as well as the ringleader’s." Angulo-Lopez, 791 F.2d at 1399

(citing United States v. Foster, 711 F.2d 871, 879 (9th Cir. 1983).

25. In determining that probable cause exists to search a drug

dealer's residence or vehicle which has not otherwise been tied to actual drug trafficking, "a

magistrate may rely on the conclusions of experienced law enforcement officers regarding

where evidence of a crime is likely to be found." Fannin, 817 at 1382. Accordingly, in United

States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976), the Ninth Circuit upheld a search warrant

for the defendant's automobile where the supporting affidavit demonstrated that there was

27

probable cause to believe that the defendant was engaged in drug trafficking generally, and

had been seen in the car with a criminal associate, "but there was no specific information that

any heroin was ever seen in the automobile," where "the affidavit concluded: 'It is

commonplace for dealers of heroin to have heroin that is packaged for sale in the place where

they live or sell from, in their vehicles or on their persons'." Id.; accord United States v. Elliot,

322 F.3d 710, 716-17 (9th Cir. 2003) (following Spearman to uphold search of residence);

United States v. Gann, 722 F.2d 714, 722 (9th Cir. 1984) (search of bank robber’s vehicle upheld

based on training and experience of agent that various items are stored by bank robbers in

vehicles). Similarly, in Fannin, the affiant "relied on past experience with drug traffickers to

conclude that evidence linking Fannin to drug trafficking might be found at Fannin's residence,"

even though no evidence actually linked Fannin's trafficking to his residence. Fannin, 817 F.2d

at 1381

CONCLUSION

26. Based on the totality of the facts set forth in this Affidavit, and my training and

experience, I submit that there is probable cause to believe that the locations identified herein

above as the SUBJECT PREMISES 1, SUBJECT PREMISES 2, SUBJECT PREMISES 3 and SUBJECT

PREMISES 4 will contain evidence, fruits, and instrumentalities of violations of Title 21, United

States Code, Sections 841(a), 846, and 856(a)(1) (possession with intent to distribute and

distribution of a controlled substance, namely, marijuana, a Schedule I controlled substance;

conspiracy to distribute a controlled substance, namely, marijuana; and maintaining a drug-

28

involved premises). I therefore respectfully request that this search warrants sought herein be

issued.

___________________________LENIN CONTRERASSpecial AgentDrug Enforcement Administration

Subscribed and sworn to before methis _____ day of January 2013. _________________________________HONORABLE DAVID T. BRISTOWUNITED STATES MAGISTRATE JUDGE

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ATTACHMENT A

Premises to be Searched:

a. 1996 North Del Rosa Avenue, San Bernardino,

California 92404, including all rooms, attics, basements, and other parts therein, any garages or

parking spaces associated with the property, storage rooms, trash containers, safes, and any

out buildings of any kinds located thereon (“SUBJECT PREMISES 1”). SUBJECT PREMISES 1 is in

a commercial single level building with dark tinted glass side paneling and glass door. SUBJECT

PREMISES 1 has commercial grade green cross signs on the front and side of the business. The

numbers “1996” in black on a white background are attached to the top of the business with

the side of the building facing east to Del Rosa Avenue, San Bernardino, California. SUBJECT

PREMISES 1 is stand-alone commercial building. SUBJECT PREMISES 1 has the appearance of an

old McDonald’s restaurant with a brown stone facade, white shingle roof. SUBJECT PREMISES 1

has a neon “OPEN” sign red in color on the side facing Del Rosa Avenue. SUBJECT PREMISES 1

has its own chain-linked fence parking lot, with no other businesses sharing the parking lot.

b. 1600 North Arrowhead Avenue, San Bernardino,

California 92405, including all rooms, attics, basements, and other parts therein, any garages or

parking spaces associated with the property, storage rooms, trash containers, safes, and any

out buildings of any kinds located thereon (“SUBJECT PREMISES 2”). SUBJECT PREMISES 2 is in

a commercial two level building with multiple units with dark tinted glass side paneling and

glass door. SUBJECT PREMISES 2 has three commercial grade green cross signs on the glass

doors. The building is numbered on the top center with numbers “1600” written in white on a

brown background, attached to the top of the building facing east on North Arrowhead Avenue,

San Bernardino, California. Next to the front door of SUBJECT PREMISES 2 “1600” in black is

attached to the glass door metallic frame. The front door entrance has a green cross with the

Kush Concepts logo within the cross and below the cross the door is labeled in green letters

Kush Concepts West. SUBJECT PREMISES 2 is on the second level of the building with the front

door by the stair case exit.

c. 305 West 40 Street, San Bernardino, California

92407, including all rooms, attics, basements, and other parts therein, any garages or parking

spaces associated with the property, storage rooms, trash containers, safes, and any out

buildings of any kinds located thereon (“SUBJECT PREMISES 3”). SUBJECT PREMISES 3 is in a

commercial single level multiple unit building. SUBJECT PREMISES 3 has commercial grade

green cross sign attached to the metallic security screen front door of the business. SUBJECT

PREMISES 3 has commercial grade green crosses on windows to each side of the front door.

SUBJECT PREMISES 3 is the only unit in the commercial building to be painted with bright lime

green color which differentiates the unit from all other units painted in plain white. SUBJECT

PREMISES 3 front door faces north to West 40 Street, San Bernardino, California. SUBJECT

PREMISES 3 has the appearance of a residential multiple unit structure, but was converted to a

commercial building. SUBJECT PREMISES 3 is the end unit furthest from the intersection at 40

Street and Electric Avenue. SUBJECT PREMISES 3 is further described with having a dark grey

shingle roof. SUBJECT PREMISES 3 has a neon “OPEN” sign red in color visible through the side

window next to the front door. SUBJECT PREMISES 3 has four parking spots in front of the

2

premise facing the front main entrance door.

d. 3577 Manzanita Drive, San Bernardino, California

92404, including all rooms, attics, basements, and other parts therein, any garages or parking

spaces associated with the property, storage rooms, trash containers, safes, and any out

buildings of any kinds located thereon (“SUBJECT PREMISES 4”). SUBJECT PREMISES 4 is a three

level residence in a residential neighborhood. SUBJECT PREMISES 4 is painted in white and grey

colors with brick columns and partial brick facades. SUBJECT PREMISES 4 has a black in color

iron fence on the balcony level facing Manzanita Drive. The residence is about 2,746 square

feet in size on a 11,760 square feet lot with a pool and a Jacuzzi in the backyard. The front of

SUBJECT PREMISES 4 faces west on Manzanita Drive. The curve in front of SUBJECT PREMISES 4

has been numbered 3577 in black lettering in a white background at the street level. SUBJECT

PREMISES 4 also has a white sign with numbers 3577 in black and to the front of the sign a

white mail box is installed. SUBJECT PREMISES 4 is further described as having a three car

garage with two white in color garage doors one large for two cars side by side, the other

garage door smaller for one car. SUBJECT PREMISES 4 is the last residence facing west on

Manzanita Drive, north of the residence there is a hill which is part of the property at 2205

Willow Drive, San Bernardino, California. SUBJECT PREMISES 4 is on Manzanita Drive with

Willow Drive north of it, and Mesquite Drive south of it, and connecting with the nearest major

road Foothill Drive.

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ATTACHMENT B

Items to be Seized

I am requesting authorization to search for evidence, fruits, and instrumentalities of

violations of Title 21, United States Code, Sections 841(a), 846, and 856(a)(1) (manufacturing,

possession with intent to distribute and distribution of a controlled substance, namely,

marijuana, a Schedule I controlled substance; conspiracy to manufacture and distribute

a controlled substance, namely, marijuana; and maintaining drug-involved premises), as

described in Attachment B, as follows:

a. Marijuana, derivatives thereof, and edible products containing marijuana

(hereinafter “marijuana”);

b. Marijuana paraphernalia and equipment used for the distribution and

cultivation of marijuana such as packaging materials and/or equipment, scales, rockwool (also

known as Grodan, a fibrous material used as a growing medium and substituted for soil), high

intensity lights, nutrients, fertilizers, fans, tables, trays CO2 enrichment systems, electrical

timers, or other equipment specifically designed to facilitate the irrigation of plants;

c. Firearms such as handguns, shotguns, and rifles.

d. United States currency in amounts of $2,000 or more;

e. Automatic teller machines and any currency, financial documents, or

records therein;

f. Records, receipts, notes, ledgers, tally sheets, and other papers relating

to the cultivation, transportation, ordering, purchasing, and/or distribution of marijuana or

reflecting the proceeds of those activities;

g. Records, invoices, receipts, records of real estate transactions, bank

statements and related bank records, tax documents, passports, money drafts, money orders,

bank drafts, wire transfers, cashier’s checks, safe deposit box keys, and other materials which

demonstrate the obtaining, secreting, transfer, and/or concealment of marijuana or proceeds

and any assets derived from marijuana proceeds;

h. Photographs, including still photos, negatives, video tapes, films,

undeveloped film, and the contents therein, depicting marijuana or any entities or individuals

involved in the cultivation, transportation, ordering, purchasing, and/or distribution of

marijuana;

i. Address and/or telephone books, telephones, pagers, answering

machines, customer lists, and any papers reflecting names, addresses, telephone numbers,

pager numbers, fax numbers and/or other identification numbers of source(s) of supply or

customer(s) of marijuana;

j. No more than 5 documents and records, including electronic mail

and electronic messages, reflecting the ownership, occupancy, possession, or control of

the Premises to Be Searched, including lease/rental agreements, rent receipts, registration

documents, bank records, utility bills, telephone bills, other addressed envelopes, and

correspondence;

k. Documents and records which purport to be recommendations and/or

prescriptions for the use of marijuana;

2

l. Records, documents, programs, applications, or materials evidencing the

cultivation, possession with intent to distribute, or distribution of marijuana; and

m. With respect to any digital devices containing evidence falling within

the scope of the foregoing search categories, records, documents, programs, applications

or materials, or evidence of the absence of same, sufficient to show the actual user(s) of the

digital device during the time period between January 1, 2010 and the present.

n. As used herein, the terms records, documents, programs, applications or

materials include records, documents, programs, applications or materials created, modified

or stored in any form, including in digital form on any digital device and any forensic copies

thereof. As used both above and below, the term “digital device” includes any electronic

system or device capable of storing and/or processing data in digital form, including:

central processing units; laptop or notebook computers; personal digital assistants; wireless

communication devices such as telephone paging devices, beepers, and mobile telephones;

peripheral input/output devices such as keyboards, printers, scanners, plotters, monitors, and

drives intended for removable media; related communications devices such as modems, cables,

and connections; storage media such as hard disk drives, floppy disks, compact disks, magnetic

tapes used to store digital data (excluding analog tapes such as VHS), and memory chips; and

security devices.

In searching digital data stored on digital devices, law enforcement personnel executing

this search warrant will employ the following procedure:

3

o. Law enforcement personnel or other individuals assisting law

enforcement personnel will, in their discretion, either search the digital device(s) on-site or

seize and transport the device(s) to an appropriate law enforcement laboratory or similar

facility to be searched at that location. The team of law enforcement personnel, which may

include the investigating agent(s), and/or individuals assisting law enforcement personnel

searching the digital device(s) shall complete the search as soon as is practicable but not to

exceed 60 days from the date of the execution of the warrant. If additional time is needed, the

government may seek an extension of this time period from the Court within the original 60 day

period from the date of execution of the warrant.

p. The team searching the digital devices will do so only by using search

protocols specifically chosen to identify only the specific items to be seized under this warrant.

q. The team may subject all of the data contained in the digital device

capable of containing items to be seized as specified in this warrant to the protocols to

determine whether the digital device and any data falls within the items to be seized as set

forth herein. The team searching the digital device may also search for and attempt to recover

“deleted,” “hidden” or encrypted data to determine, pursuant to the protocols, whether the

data falls within the list of items to be seized as set forth herein.

r. The team searching the digital device also may use tools to exclude

normal operating system files and standard third-party software that do not need to be

searched.

4

s. When searching a digital device pursuant to the specific protocols

selected, the team searching the digital device shall make and retain notes regarding how the

search was conducted pursuant to the selected protocols.

t. If the team searching a digital device pursuant to the selected protocols

encounters immediately apparent contraband or other evidence of a crime outside the scope of

the items to be seized, the team shall immediately discontinue its search of that digital device

pending further order of Court and shall make and retain notes detailing how the contraband

or other evidence of a crime was encountered, including how it was immediately apparent

contraband or evidence of a crime.

u. If the search determines that a digital device does not contain any data

falling within the list of items to be seized pursuant to this warrant, the government will as soon

as practicable return the device and delete or destroy all the forensic copies thereof.

v. If the search determines that the digital device does contain data falling

within the list of the items to be seized pursuant to this warrant, the government will either

(i) within the time period authorized by the Court for completing the search, return to the Court

for an order authorizing retention of the digital device; or (ii) retain only a copy of the data

found to fall within the list of the items to be seized pursuant to this warrant and return the

digital device and delete or destroy all the forensic copies thereof.

5

w. In order to search for data that is capable of being read or interpreted by

a digital device, law enforcement personnel are authorized to seize the following items, subject

to the procedures set forth above:

i. Any digital device capable of being used to commit, further or

store evidence of the offense listed above;

ii. Any equipment used to facilitate the transmission, creation,

display, encoding or storage of digital data, including word processing equipment, modems,

docking stations, monitors, printers, plotters, encryption devices and optical scanners;

iii. Any magnetic, electronic or optical storage device capable of

storing data, such as floppy disks, hard disks, tapes, CD-ROMs, CD-R, CD-RWs, DVDs, optical

disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers,

electronic notebooks, cellular telephones and personal digital assistants;

iv. Any documentation, operating logs and reference manuals

regarding the operation of the digital device or software used in the digital device;

v. Any applications, utility programs, compilers, interpreters and

other software used to facilitate direct or indirect communication with the digital device;

vi. Any physical keys, encryption devices, dongles and similar physical

items that are necessary to gain access to the digital device or data stored on the digital device;

and

6

vii. Any passwords, password files, test keys, encryption codes or

other information necessary to access the digital device or data stored on the digital device.

x. The special procedures relating to digital media found in this warrant

govern only the search of digital media pursuant to the authority conferred by this warrant and

do not apply to any search of digital media pursuant to any other court order.

7