Opinion
5:22-CR-50073-JLV-01
11-22-2023
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY WARD, Defendant.
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS EVIDENCE (DOC. 161)
DANETA WOLLMANN UNITED STATES MAGISTRATE JUDGE.
Anthony Ward filed a pro se Motion to Suppress. (Doc. 161). Ward filed an affidavit in support of his motion. (Doc. 162). The United States opposed the motion and filed a response. (Doc. 169). Ward filed a reply to the United States response. (Doc. 181).
The court has reviewed the merits of the motion and for the reasons stated herein, finds the motion to be without merit. It is respectfully recommended that Mr. Ward's Motion to Suppress (Doc. 161) be denied.
DISCUSSION
Ward claims he is entitled to a Franks hearing because the United States left out facts in the affidavit in support of the search warrantfor his phones that, if included, would have negated probable cause for the issuance of the search warrant. Franks v. Delaware, 438 U.S. 154 (1978).
The parties stipulated to the admission of the search warrant packet which Ward challenges. It is filed as Exhibit 8 at Doc. 178.
To receive a Franks hearing, Ward must first make a “substantial preliminary showing that the warrant's issuing judge relied on statements in an affidavit that were false or were omissions made knowingly and intentionally or with reckless disregard for the truth.” United States v. Mayweather, 993 F.3d 1035, 1043 (8th Cir. 2021). Such a showing “requires a defendant to offer specific allegations along with supporting affidavits or similarly reliable statements.” United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015). A mere allegation without proof is not enough to satisfy this substantial burden. Mayweather, 993 F.3d at 1043. Nor are allegations of negligence or innocent mistake sufficient to require a hearing. Id. Instead, deliberate falsity or reckless disregard must be shown. Franks, 438 U.S. at 155-56, 171-72.
To show reckless disregard for the truth, we do not look simply at whether a statement included in the affidavit was true; rather, we ask whether, when looking at all the evidence available to the officer, the officer must have entertained serious doubts as to the truth of his [or her] statements or had obvious reasons to doubt the accuracy of the information he [or she] reported.” United States v. Neal, 528 F.3d 1069, 1072 (8th Cir. 2008) (internal citation omitted). A showing of this kind is “not lightly met.” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quoting United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987)). “Whether [the defendant] will prevail at that hearing is, of course, another issue.” Franks, 438 U.S. at 172.
Additionally, to receive a Franks hearing, the defendant “must . . . show that the alleged false statement or omission was necessary to the finding of probable cause.” United States v. Engler, 521 F.3d 965, 969 (8th Cir. 2008) (quotation omitted).
Ward argues “that if the Government would have told the truth no presiding judge would have issued a warrant[.]” (Doc. 161, p. 12). Ward makes seven allegations in support of his request for a Franks hearing. The court will address each claim individually.
“The first aspect of the affidavit that the defendant challenges as a reckless falsehood is that law enforcement saw that the defendant and took pictures in January of 2022 to prove he was CA or know CA, law enforcement never confirmed that CA was doing anything with anyone else except himself.” (Doc. 161, p. 12). The affidavit does not discuss law enforcement taking photographs at any time. Exhibit 8, pp. 1-7. Nothing about Ward's assertion demonstrates a false statement, omission, or reckless disregard for truth; therefore, Ward is not entitled to a Frank's hearing on this claim.
Ward states that his “second challenge is possibly the most serious ‘deliberate or reckless omission of material' that KS overdoes and suffered injuries based on the overdose.” (Doc. 161, p. 13). Ward asserts that “law enforcement personal are not doctors or nurses so cannot testify to treatment, especially when none was given[; thus,] . . . law enforcement [was] falsifying these facts.” (Doc. 181, p. 1). Ward is correct that the affidavit discussed Kyle Seid's overdose on fentanyl on March 15, 2022. However, evidence presented contradicts his claim of falsity.
On November 2, 2022, an evidentiary hearing was held regarding Ward's Motion to Suppress (Doc. 38). See Doc. 84 (transcript). Patrick Rose, investigator with Pennington County Sherriff's Office, testified at that hearing. Id. at pp. 1-20; 43-50. Investigator Rose testified about Kyle Seid's nonfatal overdose from fentanyl on March 15, 2022. Id. at pp. 9-10, 23-24. Investigator Rose testified that Seid said he obtained the fentanyl from C.A. and an African-American male by the name of “Low.” Id. at p. 10. Investigator Rose testified that he believed Seid was provided Narcan from C.A. and the EMTs while he was overdosing. Id. at pp. 23-24. The Court found Investigator Rose's testimony to be credible. (Doc. 91, p. 3).
Ward failed to make a substantial preliminary showing that the statements regarding Seid's nonfatal overdose were false. Franks, 438 U.S. at 155-56, 171-72. Ward's mere allegations are not enough to satisfy his substantial burden. Mayweather, 993 F.3d at 1043. This claim should be denied without holding a Franks hearing.
“The third challenge is that law enforcement prior to coming in contact with the defendant had three sources of information that provided and clarified that the defendant was indeed the alleged ‘Joe[.]' ” (Doc. 161, p. 13). The affidavit does discuss claims from confidential informants that Ward went by the name “Joe.”
Investigator Rose and Jakob Whittle, special agent for the South Dakota Division of Criminal Investigation, testifiedas to their investigation into Ward. (Doc. 84). Investigator Rose and Agent Whittle testified that sources of information identified the person later identified as Ward to be “Joe.” The court found Investigator Rose and Agent Whittle to be credible witnesses. (Doc. 91, pp. 3 & 8). During the traffic stop that occurred on March 23, 2022, after being confronted by the fact that the other passengers in the vehicle referred to him as “Joe,” Ward admitted that people do call him that. Id. at p. 152. Ward explained that in Chicago everyone calls each other “Joe,” so when his cousin called him “Joe,” the women in the vehicle assumed that was his name. Exhibit 4.
On November 2, 2022, an evidentiary hearing was held, regarding Ward's Motion to Suppress (Doc. 38). See Doc. 84 (transcript).
Based on the evidence, the court does not find a falsity in the fact that there were three sources of information that identified Ward and he was indeed the alleged Joe. Ward has not met his burned in showing that the warrant's issuing judge relied on statements in an affidavit that were false or were omissions made knowingly and intentionally or with reckless disregard for the truth. This claim should be denied without holding a Franks hearing.
Fourth, Ward argues if “all the bags were all seized and the defendants were allowed to go, while a warrant was issued it would have prevented the Court from charging the defendant with related drug crimes because the evidence would not support it.” (Doc. 161, p. 15). Ward's argument does not pertain to the affidavit; therefore, this claim should be denied without holding a Franks hearing.
Fifth, Ward argues “law enforcement went through the phone and took pictures of items in the phone without a warrant. Then used the items to get a warrant and connect him to crimes. However what is not stated is that the defendant does not have Cashapp or a Facebook[.]” (Doc. 161, p. 15). The affidavit does not have discuss any evidence obtained from Ward's phone. Exhibit 8. Therefore, this claim should be denied without holding a Franks hearing.
Sixth, Ward asserts that law enforcement agents “were sworn under oath and in the total of all three hearing there is major differences to their testimony when you combine with the facts being altered and exculpatory evidence not being relinquished to the defendant this tarnishes the reliability of these alleged credible witnesses.” (Doc. 181, p. 2). Other than his testimony,Ward provides no facts in support of his conclusory claim. As previously stated, a mere allegation without proof is not enough to satisfy his substantial burden. Mayweather, 993 F.3d at 1043. Therefore, this claim should be denied without holding a Franks hearing.
The court had an opportunity to observe Ward's testimony on a number of topics during the November 16, 2023, evidentiary hearing. Ward gave evasive answers and provided illogical explanations regarding the number of cell phones he was carrying, the purpose of the cell phones, and where he acquired the cell phones. Additionally, his testimony regard how he met his traveling companions, who the black duffel bags he was seen carrying belonged to, and details regarding his alleged prior cross country travel, was equally illogical. The court also notes that during the traffic stop, Ward lied to officers about his name and was only identified through fingerprints. The court finds that Ward is not a credible witness and rejects the entirety of his testimony.
Finally, Ward alleges that the “Affidavit on page 3 states that drugs were found in a bag, along with 6 phones, and vitamins, and these are phones in which it wishes to search, the prosecutor never addressed the disappearance of the phones on his person.” (Doc. 181, p. 4). There is no information on page three of the affidavit about items being found in a bag. (Exhibit 8, p. 3). On page six of the affidavit, it states “the vehicle was ultimately searched by Trooper Jackson and Gamber and they located approximately 150 counterfeit M30 fentanyl pills, a high point firearm, $2,700 in U.S. currency and 6 cell phones.” Id. at p. 6. There has been ample testimony in this case from Trooper Jackson and Gamber about their search of the vehicle. The court previously found their testimony to be credible, and their testimony at the November 16, 2023, evidentiary hearing regarding these items is also credible and consistent with the information in the affidavit. The court does not find that Ward met his substantial burned in showing these statements to be false. Therefore, this claim should be denied without holding a Franks hearing.
CONCLUSION
The court finds that Ward is not entitled to a Franks hearing on the issues he raises in his motion because he has not made a substantial showing that Investigator Rose knowingly, or with reckless disregard made false statements or omitted material facts when he applied for a search warrant. Nothing in the record before the court supports a finding that there was any misconduct which would warrant suppression. For the foregoing reasons, it is respectfully recommended that the Motion to Suppress (Doc. 161) be denied.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).