Opinion
CR-18-01695-TUC-JAS (EJM)
06-17-2022
United States of America, Plaintiff, v. Michael Anthony Williams, Defendant.
REPORT AND RECOMMENDATION
Erie J. Viscovich, United States Magistrate Judge.
Pending before the Court is a Motion for a Hearing Pursuant to Franks v. Delaware filed by Defendant Michael Anthony Williams (“Williams”). (Doc. 1141.) The defendant argues that he is entitled to a Franks hearing because he has demonstrated that the search warrant affidavit submitted to establish probable cause for a state search warrant for his residence and vehicle contained materially false and misleading statements, and omitted important facts, which affected the probable cause determination. The defendant contends that he will be able to demonstrate the falsities and omissions at the hearing, and that when false and misleading statements are excised from the affidavit, and important omitted information is added, there was not probable cause to issue the search warrant. For those reasons, the items seized during the search of his residence and vehicle should be suppressed.
The government argues that the defendant has failed to make the substantial preliminary showing to warrant a Franks hearing. Specifically, the government maintains that the defendant cannot show that the affiant knowingly and intentionally, or with reckless disregard for the truth, provided false or misleading statements in the affidavit, or omitted information that affected the judge's finding that there was probable cause for the search warrant. The government further argues that even if the defense is entitled to a Franks hearing, the defense cannot establish by a preponderance of the evidence that any alleged false or misleading statements or omissions affected the state judge's probable cause determination.
For the reasons stated below, this Court finds that the defendant is entitled to a Franks hearing, which the Court held on March 14, 2022. Based on the evidence presented at that hearing, the Court finds that the affidavit contained false and misleading statements and omitted relevant information. And when the falsities and misleading statements are excised from the affidavit and the omitted material is added, there was not probable cause to issue that search warrant. As such, the Court recommends that the District Court suppress the evidence seized during the search of the defendant's residence and vehicle.
FACTUAL BACKGROUND
On October 20, 2021, a federal grand jury sitting in Tucson, Arizona returned a Second Superseding Indictment against Williams and 18 other individuals. The offenses charged in the Second Superseding Indictment pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). Williams is charged with the following 15 felony offenses.
On April 6, 2022, a Third Superseding Indictment was returned against Williams and co-defendants. No new defendants or charges were added that would impact the instant motion.
Count One charges Williams with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). Count Two charges Williams with Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5). Count Three charges Williams with Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Count Four charges Williams with Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. §§ 924(j), 924(c)(1)(A)(i), (ii), (iii), and 2. Counts 12, 13, and 16 charge Williams with Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Counts 14 and 17 charge Williams with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Count 24 charges Williams with Conspiracy to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841. Count 25 charges Williams with Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841. Count 33 charges Williams with Conspiracy to Possess with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841. Counts 34 and 37 charge Williams with Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841. Count 38 charges Williams with Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
On February 22, 2022, the defendant filed a Motion for a Hearing Pursuant to Franks v. Delaware, 438 U.S. 154 (1978). As noted above, the defendant argues that he is entitled to a hearing because false and misleading statements were included in a search warrant affidavit, and important information was not included. As discussed more fully below, the specific false and misleading statements and omissions pertain to whether the affiant, Tucson Police Department Detective Vance Padilla, could definitively identify the defendant in a video as the person who shot and wounded a person outside of the Empire Hookah Lounge. The defendant maintains that the video is so dark and grainy that it was false and misleading for Detective Padilla to represent in his search warrant affidavit that he could definitively identify him as the shooter. The defendant asserts that the evidence presented at the hearing will show that the false and misleading statements and important omissions affected the probable cause determination.
The government argues that the defense cannot make the preliminary showing that it is entitled to a Franks hearing because the affidavit does not contain false and misleading statements or omissions. The government maintains Detective Padilla could identify the defendant in the video, notwithstanding its poor quality, given his extensive review of the video and his familiarity with the defendant. Moreover, the government claims that the defense could not prove by a preponderance of the evidence at a hearing that any alleged false and misleading statements and omissions would have affected the probable cause determination. The government submitted the videos as attachments to its response for this Court's review.
On March 24, 2022, the Court held oral argument on the defendant's motion. Both the government and the defense agreed that the Court needed to watch the videos to assess whether the defense was entitled to a Franks hearing. The parties also agreed that to expedite the resolution of this motion (and because Detective Padilla was available to testify), it was appropriate for Detective Padilla to testify about how he was able to identify the defendant as the shooter in the videos while the Court watched the videos. Before turning to Detective Padilla's testimony, the Court sets forth the statements and representations made by Detective Padilla in the search warrant affidavit that led to the issuance of the search warrant, as well as the instant motion.
1. The Telephonic Search Warrant Affidavit
On March 9, 2018, Detective Padilla sought a telephonic search warrant from a Pima County Superior Court Judge. (Gov. Ex. 2.) Detective Padilla first explained to the judge that he was seeking a search warrant for a residence located at 207 North Maguire Avenue, Unit 261, and a 2007 Chevrolet Impala registered to Desiree Monteen. Id. at 2. Detective Padilla told the judge that he was seeking the warrant for the following items: firearms, ammunition, holsters, cartridge cases, firearms accessories, and any gang paraphernalia or indicia, together with other fruits, instrumentalities, and the evidence of crimes of prohibited possessor, and discharging a firearm in the city limits. Id.
Detective Padilla explained that he was investigating the above-referenced offenses as a result of a shooting that occurred on January 1, 2018, at about 5:19 a.m. outside the Empire Hookah Lounge, located at 5844 East Speedway. Id. at 3. Upon arriving at the scene, officers located “only cartridge cases of a 9-millimeter and a 40-caliber in front of the business, blood and a black Chrysler 300 with bullet defects to the front driver and passenger windows.” Id. Detective Padilla stated that this vehicle was registered to the defendant's girlfriend, Dezirae Monteen, who lived with the defendant at the residence which was the subject of the search warrant. Id. at 3, 5-6. A nurse at Saint Joseph's Hospital reported (apparently to law enforcement) that a female arrived at the hospital with an apparent gunshot wound to her head. Id. at 3. The injury was a “graze, ” and the victim was in stable condition. Id. Detective Padilla noted that interviews were conducted of individuals who transported the victim to the hospital; however, he did not set forth the substance of the interviews. Id.
Detective Padilla then described what he believed happened at the hookah lounge. Id. at 3-4. Detective Padilla stated that “[i]t was determined there was a fight that occurred at around closing time. The fight continued to the parking lot where a Black male . . . was reported to have shot a firearm towards the crowd of people standing in front of the hookah lounge.” Id. Detective Padilla further stated that a search warrant was obtained for the Chrysler 300, and officers recovered a stolen Springfield XD 40-caliber handgun, and three cellular phones, which were later determined “to be used and/or belonging to Michael Williams and Samuel Rakestraw.” Id. at 4. Detective Padilla does not explain how ownership or use of the phones was determined. Detective Padilla stated that Williams and Rakestraw “are known street gang members associated to the Western Hills Gangster Bloods, a well-known and established gang here in Tucson.” He also stated that these two individuals “propagate the rap groups Wrecking Crew, ” post YouTube music videos, and have “Wrecking Crew” tattooed on their necks. Id.
Detective Padilla then turned to surveillance video that “was gathered from the exterior of the hookah lounge” and a tire shop just east of the lounge. Id. Detective Padilla advised the judge that in his review of the video footages from both businesses, he noted the following:
Michael Williams and Samuel Rakestraw arrived in the black Chrysler 300. They walked to the hookah lounge and remained there several hours. During this time, they stepped out multiple times which allowed a significant amount of camera time on the videos. Their identities were verified by myself from
my past encounters with Williams and from viewing the videos of both Williams and Rakestraw online. At around 5:10 a physical altercation occurred at the entrance of the hookah lounge. Michael Williams, Samuel Rakestraw, and their friend Count Mitchell, and two others are seen pushin' each other as they exit. Uh, as Williams and Rakestraw and Mitchell are walking to their vehicle, they react to something as they all run towards the direction of the Chrysler 300 parked east of the tire shop. It could be seen on video Williams getting behind another car parked next to the Chrysler and he points in the direction of the lounge and shoots at least one time. The video is dark; however, it could be seen where - when Williams shot through the Chrysler window as a puff of smoke is seen right after he points the firearm over the car he was standing behind. All three and others enca -entered the car as he was - uh, that he was standing behind and they b- and they left in the car in the parking lot. Following, the video depicts either a Black or Hispanic male shooting east into the parking lot at another vehicle that left after Williams and Rakestraw.Id. at 4-5.
With respect to the evidence recovered at the scene of the shootings, Detective Padilla stated that a single 40-caliber cartridge case was found where Williams was standing when shooting. Id. Four 9-millimeter cartridge cases were recovered where the other person was shooting. Id.
Detective Padilla goes on to note that Williams is a prohibited possessor of firearms and was recently released from prison in 2017. Id. He also stated that Williams was arrested today pursuant to an arrest warrant when he arrived at 207 North Maguire in the 2007 white Chevrolet Impala registered to Monteen. Id.
After asking several questions not relevant to the instant motion, the judge found probable cause for issuance of the search warrant.
2. Detective Padilla's Testimony
a. Direct Examination
Tucson Police Department (“TPD”) Detective Vance Padilla testified as follows on direct examination. Detective Padilla joined TPD in 2001 and was promoted to the rank of detective in 2009. (3/14/22 Tr. at 57.) He joined the gang unit in 2010, where he became familiar with a gang known as the Western Hills Bloods. Id. at 58.
Detective Padilla became familiar with defendant Williams in June 2015 as a result of an arrest of Williams on a weapons charge. Id. at 59. Because Detective Padilla was the case detective, he was in court for every day of the defendant's trial. Id. at 60. In connection with another investigation, Detective Padilla spent a great deal of time reviewing YouTube videos which depicted Williams. Id. Detective Padilla became familiar with defendant Rakestraw sometime prior to January 1, 2018. Id. at 61. He does not recall personal contact with Rakestraw, but recalls seeing him in the videos with Williams. Id. Detective Padilla became familiar with Count Mitchell in connection with his 2011 or 2012 arrest for a violent crime, and also saw him in videos. Id. at 62.
On January 1, 2018, Detective Padilla responded to a reported shooting at the Empire Hookah Lounge. Id. Detective Padilla did not process the crime scene, but he knows there were two areas where cartridge cases were located - some in front of the hookah lounge and one further east in front of a Budget moving truck. Id. at 63. His understanding was that there was a disturbance that started inside the lounge and continued outside to the front of the lounge. Id. at 64. There was at least one person firing a weapon in the area in front of the lounge and another person firing a weapon back towards the lounge. Id. A Jack Furrier's Tire Center is located next to the lounge; in fact, they share the same building. Id. at 64-65.
Law enforcement obtained video from the lounge and tire shop which captured some of the events that occurred around 5:00 a.m. on January 1, 2018. Id. at 65. Detective Padilla testified that he spent hours and hours reviewing the videos “to document my observations along with time stamps that the video produces.” Id. at 66.
Detective Padilla's testimony turned to describing what is depicted in the hookah lounge video as the video played in court. Id. at 67. Detective Padilla identified Williams on the video by “facial recognition” and by the visible and “very distinct” tattoo on his neck. Id. Detective Padilla testified that when he documented the videos, he incorporated clothing descriptions. Id. at 68. He noted that Williams was wearing a hat, skinny-type jeans that had a “sag, ” and a distinctive shirt - a long-sleeved two-tone shirt with darker sleeves and a lighter front. Id. at 68-69. While looking at the video, Detective Padilla testified that the back of the shirt is “solid white, ” and you can see the distinct two-tone on each arm. Id. at 68. He also testified that Williams was wearing a hat normally, meaning the bill facing forward. Id. at 68. There were other people in the video who were wearing their hats backwards. Id. at 69.
Detective Padilla identified Count Mitchell and Rakestraw in the video and still shots from the video. Id. at 70-71. He described Mitchell as taller than most of the men in the video, so he stood out. Id. at 70. Rakestraw had longer hair at the time and was dressed very different than Williams. Id. at 72. Rakestraw was wearing a hat “with the bill down and back, ” a coat that was two-tone (different shades at the top and bottom), pants that were dark in shade, and glasses. Id.
Detective Padilla described an incident that occurred in front of the hookah lounge that can be seen on the video. Id. at 73-74. He testified that the video reflects Count Mitchell trying to get his two friends - Williams and Rakestraw - out of the area because “he was kind of like pushing them back.” Id. at 74. He testified that the three men go off the screen of the lounge video. Id. Detective Padilla testified that the tire shop video “then picks up them as they move in an eastern direction.” Id.
Testimony turned to the tire shop video. Detective Padilla identified Williams as the male in the far right in the video (below the letter G on the Budget moving truck) and pointed out that there is a female in front of him. Id. at 78-80. He testified that he is able to identify Williams because “the shading of the shirt is the same as the Empire video, the pants are the same, and he does have a sag to his pants, and his hat is still on facing the same way. And his body stature is the same as Mr. Williams in the Empire video.” Id. at 78. Detective Padilla identified Rakestraw as the man to the left in the video based on the two-tone coat and dark pants, although he lost his hat at some point. Id. at 79. He identified Count Mitchell as the male in the middle because “he's got just a single colored toned hooded sweater and that's what he was wearing while he was in front of the hookah.” Id. With respect to Detective Padilla being able to identify Williams on the tire shop video, Detective Padilla testified that: “Obviously if this is all you have, you wouldn't be able to identify him but with the totality of the video, you're able to track each of these individuals to that point.” Id. at 80. He further testified that “[w]ith the knowledge and observations of them in the hookah lounge and then even the video here back and forth, you're able to track each of them and show where they go in relation to times and such.” Id. at 80-81.
In response to the Court's question, Detective Padilla testified that, as far as he knows, a hat was not recovered at the crime scene. Id. at 176.
Detective Padilla was shown a still shot from the tire shop video and asked if he could identify “any clothing characteristics of Mr. Williams that were distinctly different from his counterparts[.]” Id. at 82. Detective Padilla testified that this screen shot is “very clear in regards to Samuel Rakestraw” because you can see the two-tone coat. Id. He identified Mitchell as tall and wearing a hoodie. Id. With respect to Williams, Detective Padilla testified that “he has the sag-type pants and the shirt you can't tell too much but you can tell he's wearing a hat here in the same fashion of it being in a normal wear forward.” Id. at 82-83. He also testified that Williams' shirt in the tire shop video was consistent with Williams' shirt in the lounge video. Id. at 83.
Detective Padilla testified that he watched the beginning of the tire shop video which depicted these men go into the hookah lounge. Id. at 83. Detective Padilla testified that Williams and Rakestraw arrived in a Chrysler 300. Id. at 83-84. That portion of the video was not played in court.
Testimony turned back to the tire shop video which Detective Padilla believes depicts Williams, Rakestraw and Mitchell walking to their car(s). Detective Padilla testified as follows about what the video depicts: “So it looks like they're fleeing, like I would imagine they're fleeing in that manner is they're taking shots, somebody is most likely shooting at them because the way they crouch down and run, they take cover.” Id. at 84. He explained that Williams goes to the driver's side of the farthest vehicle and Rakestraw and Mitchell “kind of hover down between the middle vehicle and the far right vehicle on the passenger's side.” Id. He testified when Williams goes to the front of the car by the hood, “he extends his arm, he puts it down, and then he extends it one more time, and his arm does the motion of when a firearm is discharged, it kind of moves suddenly, and at that moment, you can see two puffs of smoke on the Chrysler 300 which is the middle.” Id. at 85.
Detective Padilla testified that the video corroborated what officers found at the crime scene, specifically, one .40 caliber cartridge case near where Williams was located. With respect to the two puffs of smoke that Detective Padilla said could be seen on the video, he testified that “it appears the shooter shot through the front passenger window [of the Chrysler 300], it traversed through the vehicle, and exited the front driver window.” Id. at 86.
Detective Padilla again testified that he was able to identify Williams as the shooter based “on his body language, he extended his arm.” Additionally, most of the time cartridge cases eject to the right, and a .40 caliber cartridge case was found to the right of where Williams fired the shot. Id. Furthermore, the angle of the bullet going from the passenger's to the driver's side of the Chrysler 300 “would support a shooter from that direction and that location.” Id.
With respect to the search warrant application, Detective Padilla testified that he identified Williams as the person who fired a shot. Id. at 87. He also let the state judge know that “the video was dark[.]” Id. Detective Padilla testified that at the time he submitted the warrant application, he had gone through the videos for hours and “also spent time with the video trying to determine who the shooter was[.]” Id. He explained that “even though we had an unclear video, we had enough to corroborate the videos between the two of the times, the body descriptions, and then the motions of what apparent gunshot would look like . . . when a person's shooting a firearm consistent with the evidence that was found at the scene.” Id. at 88.
Testimony returned to the alleged gunshot seen on the video. Detective Padilla testified that when a firearm discharges it produces “an explosion of gases so there is a poof of air that gets released.” Id. at 90. He testified that you can see “the explosion of the glass breaking on both sides of the vehicle, ” and “two distinct clusters of explosions” that “must be gas or air or glass.” Id. Also, he could see “Williams's right hand, the jerking of the hand.” Id.
b. Cross-Examination
Detective Padilla agreed with defense counsel that he testified on direct that he was able to track Williams, Rakestraw, and Mitchell from one video to the next. Id. at 93. Defense counsel questioned Detective Padilla about the timing of the men exiting the lounge video and appearing in the tire shop video. Specifically, after the “tussle” in front of the hookah lounge that can be seen on the lounge video, counsel asked whether the men immediately appear in the tire shop video. Id. Detective Padilla responded: “Not immediately, but it's consistent in the flow of time.” Id. Detective Padilla agreed with defense counsel that the men “don't pop out of the hookah lounge video and into the Jack Furrier video immediately[.]” Id.
Detective Padilla agreed with defense counsel that the tire shop video has a time stamp, which is in military time, and is 12 hours off in terms of reflecting p.m. when it should reflect a.m. Id. at 95. Detective Padilla estimates that 10-15 seconds elapsed between when Williams, Rakestraw, and Mitchell exit the lounge video and appear in the tire shop video. Id. at 95-96. Detective Padilla testified that the lounge video shows the men leaving the hookah lounge at 5:11 a.m. Id. at 96. Counsel turned to the tire shop video and asked Detective Padilla if the time stamp reflected that at least two minutes pass before three men are seen “walking through the parking lot heading back towards the vehicle right before they get shot at[.]” Id. at 96-97. Detective Padilla told counsel he was “comparing apples and oranges” because you have “two different independent videos with two different time stamps.” Id. at 97. In response to counsel's question as to how Detective Padilla got the 10 to 15 seconds, Detective Padilla testified (confusingly) that “if you look at the other videos where they're leaving back and forth, I was able to gather the 10 seconds.” Id.
Counsel then played the hookah lounge video and asked Detective Padilla questions about men who look like Williams, Rakestraw and Mitchell, and were dressed similarly. Id. at 98. Detective Padilla agreed with counsel that about 30 seconds after Williams, Rakestraw, and Mitchell exit the lounge video, two men walk in the same direction. Id.
Detective Padilla further agreed with counsel that one of the men has hair similar to Rakestraw, is wearing a hoodie similar to Rakestraw's, and is the same height and build as Rakestraw. Id. Detective Padilla disagreed with counsel that the other man looks like Williams. Id. at 99. Detective Padilla conceded that the man was wearing a white shirt and a hat, but he had on a black jacket and his shoes are different than Williams's shoes. Id.
Defense counsel turned his questions to when it appeared that the bystanders shown in the lounge video began to react to gun shots. Id. at 102. Specifically, counsel asked whether Detective Padilla sees any bystanders reacting as if there was gunfire between the time Williams leaves the view of the hookah lounge video and the point where there is gunfire in the tire shop video. Id. at 103. Detective Padilla testified that it's been years since he watched the video, and he did not document the individuals' behaviors and cannot testify to those behaviors because his “focus was on the individuals at hand.” Id. Defense counsel points out that the time stamps on the videos show that “almost three minutes have passed since Mr. Williams has gone and no one has acted as if gunshots had occurred[.]” Id. at 104. Detective Padilla responds: “[w]ell, this individual has his gun out so he's reacting to something.” Id. Counsel plays the lounge video further and points out that at 5:14 a.m., “[t]his is the first person that ducks.” Id. at 105. Counsel asks Detective Padilla if “it's safe to assume that at 5:14, some three minutes and 30 seconds after Mr. Williams is gone from this video, we have the first person to act as if there's a gunshot[.]” Id. Detective Padilla responds: “[y]ou're asking me to accept your assumption.” Id. Detective Padilla testified that he believes that “the individual that had his gun out is a fair assessment that there's some gunshot.” Id. Counsel pointed out that it is still two minutes after Williams leaves the lounge video when the person is seen with a gun. Id. Detective Padilla agreed with counsel that “people would [not] be standing around in the open if people were shooting guns[.]” Id. at 107. However, Detective Padilla did not agree with counsel that gunshots started at 5:14 when it appears that people act “as if they're under fire.” Id.
Counsel then played the hookah lounge video starting at 5:10 a.m. Detective Padilla agreed with counsel that there is some incident in front of the lounge, and Williams, Rakestraw, and Mitchell can be seen leaving the area shortly thereafter. Id. at 108. Counsel asks Detective Padilla if he is “saying gunshots fired within 15 seconds of this.” Id. at 109. Before Detective Padilla can respond, counsel points out all the people standing around the entrance to the lounge and asks if Detective Padilla thinks that “all these people were standing out there when gunshots came out[.]” Id. Detective Padilla testified that “[s]omething's going on there, ” meaning in the lounge video. Id. Detective Padilla maintained that within 20 seconds of Williams, Rakestraw, and Mitchell leaving the camera view of the lounge, there were gunshots. Id. at 109-110.
Detective Padilla testified that the crime scene showed that Williams shot once and there were four shots thereafter. Id. at 110. Counsel pointed out that in the lounge video about a minute after Williams, Rakestraw, and Mitchell leave the picture, people are just meandering about; “nobody's leaving, ” “nobody's ducking for cover.” Id. Counsel asked Detective Padilla if any of those individuals acted like there were gunshots. Id. Detective Padilla testified that “I already told you, I think the reaction of the male with the gun” is evidence of when shots are fired. Id. at 110-111. Counsel pointed out that the male with the gun still had not appeared in the video. Id. at 111. Detective Padilla agreed with counsel that the male brandishing a gun is seen at 5:13:40 a.m. on the lounge video, which is still two minutes and 40 seconds after Williams, Rakestraw, and Mitchell leave the entrance to the lounge and the video. Id. at 112. Detective Padilla testified that his recollection was that Williams appeared on the tire shop video about 10-15 seconds after he left the camera's view of the lounge video. Id.
Detective Padilla testified that he obtained two videos from the hookah lounge and three videos from the tire shop. Id. at 115. There was a time stamp on the tire shop video, but it seems to be 12 hours ahead exactly, and was in military time. Id. at 116. He had no reason to believe that the time stamp was inaccurate other than being 12 hours ahead. Id. at 121. Detective Padilla was able to document his time using the time stamps on the videos. Id. at 117.
Counsel introduced screenshots of the videos into evidence and questioned Detective Padilla about what they depicted. At 5:13:45 a.m., in a screenshot from the hookah lounge video, Detective Padilla testified that this is his impression of the “first reaction” to someone potentially firing a gun - i.e, the man who pulls out a gun. Id. at 119. Detective Padilla agreed with counsel that the tire shop video does not show anyone firing a weapon at this time. Id. Detective Padilla also agreed with counsel that at 17:13:59 in the tire shop video it shows “the three individuals as being under fire[.]” Id. at 120. He further agreed that at 17:14:02 in the grainy tire shop video, there is an individual lifting up his arm, but you “can't see a weapon.” Id. Detective Padilla deduced that there was a weapon based on what he saw on the tire shop video. Id. But he agreed with counsel that he cannot identify anyone in that video. Id.
With respect to the search warrant affidavit, Detective Padilla agreed with counsel's assertion that he “didn't explain that there was a clear gap not only in coverage of the videos but in the time that Mr. Williams and Mr. Mitchell and Mr. Rakestraw left the hookah lounge video and then entered” the tire shop video which captured the alleged shot fired. Id. at 121-122. Detective Padilla testified that he “did not go into times” with the judge; “[t]he premise of the affidavit was telling a story based on descriptions and placement[.]” Id. at 122. Counsel questioned why Detective Padilla did not tell the judge that the individual he was trying to identify went off screen of one video for a couple minutes and then appeared on another video which was grainy. Id. Detective Padilla testified that he thinks that he “was able to identify them from the totality of before they got into the hookah lounge, during, and after[.]” Id. Detective Padilla did not tell the judge that there were other individuals depicted in the lounge video that were dressed similarly to Williams, Rakestraw, and Mitchell. Id. at 124. He also did not tell the judge that he spent hours reviewing the video. Id. He did not give the judge the videos to review. Id. Counsel asked whether Detective Padilla just told the judge: “This is Mr. Williams and I'm running with it.” Detective Padilla testified that: “Based on a review, extensive review, yes, of the video - of the videos, plural.” Id. at 125.
Counsel questioned Detective Padilla about other individuals shown in the lounge video who counsel contended look like Williams and Rakestraw. Id. Detective Padilla agreed that one man looks like Rakestraw based on his two-toned hoodie; but he testified that this man did not have a hat or glasses, and his “hair's a little bit different.” Id. at 125126. Detective Padilla agreed with counsel that you cannot draw these distinctions in the tire shop video. Id. at 126. Detective Padilla again testified that he did not tell the judge about this man who was dressed like Rakestraw. Id.
Counsel pointed to another man in the video who he asserted looked like Williams. Id. at 127. Detective Padilla disagreed. He does not think this man has facial features similar to Williams and, unlike Williams, this man had on a dark-colored jacket and darkcolored pants. Id. Detective Padilla agreed with counsel that the morning of the shooting he interviewed a witness named Juan Hermosillo who told him that “he saw a black male shooting a gun, about 20 to 21 years old, had shorter hair with a fade, he was about five eight, wearing a black shirt, black and gold hat, black pants, and black shoes.” Id. at 129. Detective Padilla testified that he did not include the details of this witness interview in his search warrant affidavit. Id. When asked why he would not include that an eyewitness provided a description of the shooter, Detective Padilla testified that: “the witness was general nature. He didn't provide names or anything specific. So in these type[s] [of] investigations where you can take witness testimony, if that was clear and convincing through multiple witnesses, that definitely would have been utilized as such.” Id. at 130131.
Detective Padilla agreed with counsel that his report notes that Hermosillo said that the Black male in the black jacket and pants was shooting towards the hookah lounge, and that man was with two other men. Id. at 162. He also agreed that this description of the direction of the shooting and the group of three men matched what was depicted in the tire shop video. Id. at 163. When asked if he decided the judge did not need to know about that, Detective Padilla testified that he felt that Hermosillo was describing Williams. Id. Counsel asked how that description matches Williams who was wearing white pants. Id.
Detective Padilla testified that: “In investigations, witness testimony is important, yes, but when you have video, that typically supersedes witness testimony.” Id. When counsel pointed out the poor quality of tire shop video, Detective Padilla testified that there are two videos. Id. Counsel pointed out that he was not talking about the hookah lounge video which he does not dispute clearly shows Williams. Id.
The following questions were asked and answers provided pertaining to Hermosillo's description of the shooter and what is depicted in the tire shop video.
Q: When the person tells you that the person that was shooting back at the crowd east to west, as you were saying Mr. Williams was doing, had black pants on, the person in the tire shop video could have had black pants on, correct?
A: Yes.
....
Q: That person could have had a black shirt on, yes?
A: Yes.
Q: He could have black shoes on, yes?
A: Yes.
Q: He could have had a black hat on?
A: Yes.
Q: Just like the exact opposite of what Mr. Williams had?
A: Based on Mr. Hermosillo, yes, any of that's a possibility.
Q: Right. Okay. But yet you didn't give that information to the judge, did you?
A: ‘Cause it wasn't observed.
Q: It wasn't observed by who?
A: In corroboration of both videos. I didn't just tell the judge I only had one video.
I supported this video with another video.Id. at 165-166.
Detective Padilla disagreed with counsel's assertion that he told the judge what he wanted to tell the judge, and left out important information like Hermosillo's description of the shooter, that the shooter was with two other men, and the direction of the shooting. Id. at 166-168. He again testified that he believed that Hermosillo was describing Williams. Id. at 168.
Counsel asserted that Detective Padilla did not tell the judge how he went about identifying Williams. Id. at 136. Detective Padilla disagreed and testified that: “I told her that I knew them and, just looking at my affidavit, that I compared two videos. You know, I had a video from the hookah that was clear as day. When you take still shots, you can see the faces.” Id. He further testified that he “compared the two videos and [he] made that into a story for her.” Id. Detective Padilla agreed that there were individuals in the lounge video with clothing - baggy pants, white pants, white shirts, hoodies - similar to what Williams, Rakestraw and Mitchell were wearing. Id. at 137. He conceded that he did not provide this information to the state judge. Id.
Detective Padilla never investigated anyone else in connection with the shooting at the hookah lounge. Id. at 138. Counsel pointed specifically to a male at the end of the lounge video “shooting numerous times at a vehicle leaving the parking lot.” Id. at 138139. Detective Padilla testified that he did not investigate this man because “we didn't have enough information to pursue any names or anything. I didn't know who that person was.” Id. at 139. Detective Padilla agreed with counsel that his report does not reflect that he tried “to find out who the Hispanic male was shooting numerous times at that other vehicle.” Id. Detective Padilla testified that he did not know about this other shooter when he arrived at the crime scene, and did not get the video until a day later. Id. at 147. He agreed with counsel that he follows up on investigations. Id. at 148. But he testified that this man “looks Hispanic” and he “didn't get any information that a Hispanic male was shooting.” Id.
Detective Padilla testified that he believes that Williams, Rakestraw and Mitchell left in the car depicted in the tire shop video with its lights on. Id. at 143. He agreed with counsel that Williams and Rakestraw arrived at the hookah lounge in a different vehicle. Id. He did put this information in his affidavit. Id.
Counsel turned to how Detective Padilla concluded that the person in the parking lot standing next to a Budget rental truck fired a weapon. Detective Padilla testified that his conclusion was based on bullet strikes on the Chrysler 300, the location where the cartridge case was found in relation to where he saw the person on the tire shop video, “the trajectory of the round that went through, and then the general motions of when a firearm is discharged.” Id. at 148. Detective Padilla testified that it was not possible that a bullet was traveling in the opposite direction and made entry into the Chrysler 300. Id. at 149. However, he acknowledged that there were other shots fired based on the reaction of the three people in the tire shop video. Id. at 150.
Detective Padilla testified that he cannot see a gun on Williams or a bulge indicative of a gun in either the hookah lounge video or the screen shots of that video. Id. at 151. He agreed with counsel that he did not include that fact in his affidavit. Id. at 152.
c. Redirect Examination
Detective Padilla testified that when he spoke with Juan Hermosillo he was aware that there were multiple shooters at the scene. Id. 154. When asked if he thought Hermosillo was referring to the shooter in the tire shop video, Detective Padilla testified (for the first time) that there were two shooters in the tire shop video; but he did not detail any information about this second shooter. Id. Detective Padilla was then shown some screen shots from the tire shop video and asked to identify the people in the screen shots. He testified that the person in the middle underneath the Budget sign on the truck was the person who he “could see firing or what was consistent with firing a weapon.” Id. He testified that he could tell that this person was not wearing black pants or black shoes. Id. at 155. As such, when Hermosillo told him that the shooter had a black shirt, black pants, and black shoes, Detective Padilla did not think he was talking about the shooter in this screen shot. Id. Given that the search warrant pertained to the shooter who was depicted in the tire shop video near the Budget truck, he did not feel it was necessary to include descriptions of other shooters in his affidavit. Id.
With respect to the man who the defense claims looks like Rakestraw, Detective Padilla did not reference this man in his affidavit because he was not dressed similarly to Rakestraw, who had on a hat backwards, wore glasses, whose pants are much darker, and who has color blocking on his shirt. Id. at 156. He has no concerns that he mistook this other man for Rakestraw. Id. at 157.
Government counsel turned to the 15-second window between the videos focused on by the defense. Counsel asked Detective Padilla to explain “what the 15 seconds is that we're talking about, just so it's clear.” Id. at 157-158. Detective Padilla testified that when he reviewed the videos, he documented a lot of activity at the lounge and the tire shop. Id. at 158. He indicated when certain individuals were going in and out of the video, and would then document the times. Id. He testified that “it seems that the videos are fairly close . . . with the variance of not more than [a] 20-second difference.” Id. He explained that by “document” he means “there might be a time where Mr. Rakestraw leaves the tire shop video but then enters the hookah video and there's about a 20-second difference.” Id. He further explained that “[s]o I think it's safe to say that when I mentioned the 15 to 20 seconds or 10 to 15 seconds earlier, I was saying that the two videos are pretty good in time in correlation with each other.” Id. In response to counsel's question of whether he knows if the time stamps are “perfectly accurate, ” Detective Padilla testified that he did not do “like a controlled sample on that, ” so he cannot “say if that's, you know, right right on.” Id. at 159. He testified that it would be normal for a video at a business establishment to be “somewhat off.” Id. He does not know if these videos “would automatically set time like . . .a cell phone” or whether they would have to be set manually. Id.
DISCUSSION
In Franks, the Supreme Court held that “[a] criminal defendant has the right to challenge the veracity of statements made in support of an application for a search warrant.” United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (citing Franks, 438 U.S. at 155-156). Under Franks, a defendant must clear two hurdles to ultimately succeed on a motion to suppress evidence seized pursuant to a search warrant that was based on a facially valid affidavit. As discussed below, the legal requirements are identical for both hurdles; it is burden of proof that differs.
A defendant must first make a substantial preliminary showing that he is entitled to a Franks hearing. United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985). In order to obtain that hearing, a defendant must show that the affidavit contains intentionally or recklessly made false statements or omissions, and the affidavit would not be sufficient to support a finding of probable cause if purged of its falsities. Stanert, 762 F.2d at 780. If the defendant makes such a showing, “the Fourth Amendment requires that a hearing be held at the defendant's request.” Id.
At first blush, it may appear that the Court put the cart before the horse in terms of having Detective Padilla testify prior to making a finding of whether the defendant made the substantial preliminary showing that he was entitled to a Franks hearing. That is not the case. As discussed below, the Court's decision as to whether the defendant is entitled to a Franks hearing is based on the pleadings, argument of counsel, and most importantly, the videos at issue. The Court and the parties felt it was appropriate for Detective Padilla to testify in an effort to resolve the instant motion more expeditiously given the following circumstances: (1) the impending trial date; (2) the substantial number of motions pending that require testimony; (3) the fact that Detective Padilla was present in court to testify on other motions; (4) the difficulty coordinating schedules among counsel and witnesses; (5) the limited courtroom time as a result of the pandemic; (6) the fact that the government expressed no objection to Detective Padilla testifying; and (7) Detective Padilla was the only witness needed for a Franks hearing.
At the hearing, to prevail on a Franks challenge, a defendant must establish by a preponderance of the evidence that: (1) the affiant intentionally or recklessly made false or misleading statements and/or omitted important information to obtain a search warrant; and (2) the false or misleading statements and/or omissions were material. - i.e., necessary to a finding of probable cause. Perkins, 850 F.3d at 1116; see also United States v. Martinez-Garcia, 397 F.3d 1205 (9th Cir. 2005); Stanert, 762 F.2d at 775. "If both requirements are met, 'the search warrant must be voided and the fruits of the search excluded ....'" Perkins, 850 F.3d at 1116 (quoting Franks, 438 U.S. at 156).
1. The Defendant is Entitled to a Franks Hearing.
The Court concludes that the defendant has made a sufficient preliminary showing that he is entitled to a Franks hearing based on the videos, the pleadings, and argument of counsel. The quality of the video that allegedly depicts the defendant firing a gun is extremely poor. The Court could not identify the defendant as the shooter in that video. The Court saw three blurry figures (apparently men) who were a considerable distance away from video camera that captured the images of the three individuals walking toward vehicles in the parking lot, who then crouched down and ran toward the parked cars. While it appeared (kind of) that one figure raised a hand, the Court could not see the puff of smoke that Detective Padilla represented in his search warrant affidavit was the result of a gunshot.
Detective Padilla did not provide either video to the state court judge to review in order to make a probable cause determination. That was an important error given this Court's inability to identify the defendant (or anyone) in the tire shop video, even when compared to the much clearer hookah lounge video. Instead, Detective Padilla's affidavit makes it appear that he could clearly identify the defendant as the shooter in the tire shop video, as well as that the defendant's movements after leaving the lounge were always captured on video. The videos demonstrate that is not the case.
Additionally, Detective Padilla's affidavit leaves out many important facts that cast doubt on his identification of the defendant on the video as the shooter. He never explains to the state judge that the defendant goes off screen of the hookah lounge video and later reappears on the grainy tire shop video. He also never tells the judge that the grainy tire shop video shows these individuals at a far greater distance than the hookah lounge video. Detective Padilla acknowledged in his affidavit that the video was “dark, ” but that description does not do justice to the poor quality of the tire shop video. He never let the state judge know that the video is so grainy that neither the defendant's face nor his neck tattoo (referred in the search warrant affidavit) can be seen in that video. He also never mentions that there are several other young Black men dressed similarly to Williams, Rakestraw, and Mitchell, let alone explain why he was certain none of these men were the shooter.
When mentioning the man who was seen shooting toward the fleeing vehicle,
Detective Padilla told the judge that this man was either Black or Hispanic. Again, he does not tell the judge that this man is seen in the better-quality hookah lounge video. By being able to narrow down the man's race to Black or Hispanic, it could well have led the judge to believe that the quality of the videos enabled Detective Padilla to easily identify the defendant in the video as the shooter.
Additionally, Detective Padilla's discussion in his affidavit about the defendant's distinctive tattoo is misleading. The tattoo cannot be seen in the tire shop video, and that fact was not made clear to the state judge. Thus, by referencing the tattoo in his affidavit, when it played no role in his identification of the defendant as the shooter, the state judge may well have believed that the defendant's distinctive tattoo aided Detective Padilla in identifying the defendant on the video as the shooter.
The only reading of Detective Padilla's affidavit is that the defendant and his movements were always captured on videos, and that he was easily identifiable even in the “dark” video. Again, that is clearly not the case. Accordingly, the Court concludes the defendant has made a substantial preliminary showing that Detective Padilla's affidavit contained reckless misrepresentations and omitted significant material facts regarding both the quality of the video and his positive identification of the defendant using the video. The Court also concludes that the defendant has easily made a substantial preliminary showing that those misrepresentations and omissions could have impacted the probable cause determination that the shooter was in fact the defendant. In fact, the failure to provide the videos to the state judge, in and of itself, affected the probable cause determination. As such, the defendant is entitled to a Franks hearing.
2. The Defendant Has Demonstrated by a Preponderance of the Evidence That He Is Entitled to Suppression of Evidence.
a. The Affiant Acted With Reckless Disregard for the Truth.
As noted earlier, at the Franks hearing the defendant must establish by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless disregard for the truth, made false or misleading statements in the search warrant application. Martinez-Garcia, 397 F.3d at 1214. “[A] warrant affidavit must set forth particular facts and circumstances . . . so as to allow the magistrate to make an independent evaluation of the matter.” Franks, 438 U.S. at 165. “An officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate.” Perkins, 850 F.3d at 1116. “By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.” Stanert, 762 F.2d at 781.
The case at hand is very similar to Perkins. There, a defendant was arrested by law enforcement in Canada for being in possession of images believed to be child pornography. Perkins, 850 F.3d at 1112-1113. After reviewing the images and providing a description of the images, a constable concluded that they did not constitute child pornography. Id. at 1113. As a result, the charge against the defendant was dropped by Canadian authorities. Id.
Subsequently, the case (including the two images), was forwarded to U.S law enforcement. Id. After reviewing the images, an agent sought a search warrant to search all the digital devices in the defendant's home for child pornography. Id. at 1113-1114. The agent provided descriptions of the images in his search warrant affidavit, and concluded that one of the images met the federal definition of child pornography. Id. at 1114. The warrant application did not include copies of either image. Id. The magistrate judge issued the search warrant. Id.
The defendant's motion for a Franks hearing was denied by the district court. Id. The district court's decision was reversed by the Ninth Circuit, and the case was remanded for the district court to hold a Franks hearing. Id. After that hearing, the district court concluded that the agent did not intentionally or recklessly mislead the magistrate, and therefore, denied the motion to suppress. Id. at 1115.
The Ninth Circuit again reversed the district court's decision. The court concluded that the affiant omitted relevant information from the affidavit that resulted in the misleading impression that an image was unequivocally child pornography. Id. at 117. Specifically, the court found that the affiant acted with at least a reckless disregard for the truth by failing: (1) to furnish copies of the images to the magistrate judge; (2) to advise the magistrate that Canadian authorities dropped the child pornography charges; and (3) to provide the magistrate portions of the constable's description of the images. Id. at 1116. The agent selectively included information bolstering probable cause while omitting information that did not. Id. at 1117. As a result, the agent “presented a skewed version of events and overstated the incriminating nature of the images.” Id. at 1118. The court found that the agent's description of the image was not “a reliable substitute for the image itself” and, as a result, “effectively usurped the magistrate's duty to conduct an independent evaluation of probable cause.” Id. The court held that the agent “was required to provide copies of the images for the magistrate's independent review. Instead, he merely proffered his own conclusion about [the image], based on an incomplete and misleading description of the image. This was a breach of the duty [the agent] owed to the court.” Id.
As discussed below, like in Perkins, the Court concludes that Detective Padilla's description of the videos was not a reliable substitute for the videos themselves. Detective Padilla merely proffered his own conclusion that the defendant could be seen in the video shooting a gun based on an incomplete and misleading description of the quality of the video and what can be seen in the video. As a result, he usurped the judge's evaluation of probable cause.
Detective Padilla's affidavit is misleading based both on explicit statements made and the omission of important information related to his identification of the defendant. The most glaring misstatement was that the video unequivocally showed that the defendant was the shooter. Many of the other misleading statements and omissions stem from the fact that Detective Padilla did not provide the judge with the videos, or at least explain, like he did to this Court, that he watched two videos for many hours - one from the hookah lounge which clearly shows the defendant at the entrance, and another from a tire shop which is so grainy that no one can be identified based solely on that video. The Court finds that Detective Padilla acted recklessly by: (1) not providing the judge with the videos; (2) making misleading statements and omitting crucial facts when describing what is depicted in the videos; and (3) omitting information that cast doubt on the defendant being the shooter.
The Court notes that even with Detective Padilla's explanation of how he identified the defendant as the shooter, the Court is not convinced. As discussed in text infra, there are too many other possibilities and unanswered questions as a result of inadequate investigation.
Again, Detective Padilla's reference in his affidavit to the defendant's "Wrecking Crew" tattoo on his neck was misleading because he did not make clear to the judge that this distinctive tattoo was not used to identify the defendant as the shooter in the video. Detective Padilla's testimony certainly made clear (as did the video) that he did not use the tattoo to identify the defendant as the shooter in the tire shop video. But Detective Padilla did not testify about why he mentioned the defendant's tattoo in his affidavit. The reference to the tattoo certainly suggested to this Court, based solely on its review of the affidavit, that the tattoo helped Detective Padilla identify the defendant in the video as the shooter. Similarly, the state judge may well have believed that defendant's distinctive tattoo aided Detective Padilla in identifying the defendant as the shooter. Thus, the failure to make clear in the affidavit that the defendant's tattoo could not be seen in the video that depicted the shooter was an important omission.
Detective Padilla apparently saw the tattoo in the rap videos posted on YouTube; however, the affidavit is not clear on that point.
Detective Padilla omitted other important facts in his affidavit. For instance, Detective Padilla describes seeing the defendant and Rakestraw arrive at the hookah lounge in a Chrysler 300 and walk into the lounge. He describes seeing them step out of the lounge multiple times which allowed a significant amount of camera time on the videos. However, Detective Padilla fails to mention that this “significant amount of camera time” was on the far-better-quality hookah lounge video where the defendant's face can clearly be seen. He then describes the physical altercation that occurred at the entrance of the hookah lounge where the defendant, Rakestraw, Mitchell, and two others are seen pushing each other as they exit; but, again, he does not mention that this was seen on the hookah lounge video.
He then states that he saw the defendant, Rakestraw, and Mitchell "walking to their vehicle," and then "react to something as they all ran towards the direction of the Chrysler 300[.]” Importantly, Detective Padilla does not mention that he saw this activity on the grainy tire shop video. He goes on to say that he could see the defendant get behind another car and shoot at least one time through the Chrysler window, and a puff of smoke can be seen “right after he points the firearm over the car he was standing behind.” While Detective Padilla acknowledges that the video is dark in his affidavit, he again does not make clear that the alleged shooter is depicted in the grainy tire shop video. That omission is significant because Detective Padilla testified that the tire shop video could not alone be used to identify the defendant. (3/14/22 Tr. at 80, 88, 120.) He also does not point out in his affidavit that no facial features (or tattoo) can be identified on the grainy tire shop video; that is in sharp contrast to the hookah lounge video which produced closer images of the defendant entering the lounge, exiting multiple times, and getting into an altercation at the entrance to the lounge.
As discussed earlier, when he described the person shooting in the direction of the car the defendant allegedly fled the scene in, Detective Padilla states in his affidavit that the shooter was either Hispanic or Black. But Detective Padilla did not explain that he was able to narrow down this shooter's race to Hispanic or Black only because that shooting was captured on the better-quality hookah lounge video. This failure, especially in conjunction with the reference to the defendant's distinctive tattoo, likely led the state judge to believe that the quality of the video of the shooter left no doubt that it was the defendant.
Detective Padilla also omitted important facts about the time stamps on videos. Both videos have “time stamps” that allow a viewer to see how much time elapsed between the altercation at the entrance of the lounge captured on the hookah lounge video, and the shooting in the parking lot which was captured on the tire shop video. Agent Padilla never mentions the “time stamps” in his affidavit, let alone that he used the time stamps to track the defendant's movements to aid in his identification. These failures are significant because, as discussed above, Agent Padilla's affidavit makes it seem as if the defendants went directly from the entrance to the lounge to the parked cars, and were visible on video at all times. That is not the case.
Agent Padilla tried to explain why his affidavit reads in that way. He testified that he estimates about 10-20 seconds elapsed between the time the defendant, Rakestraw, and Mitchell leave the front entrance to the lounge and cannot be seen on the hookah lounge video, to the time when these men appear in the tire shop video walking toward the cars in the parking lot. Id. at 95-96, 112, 157-158. But that testimony is belied by the “time stamps” on the videos. The hookah lounge video shows the defendant, Rakestraw, and Mitchell leave the front entrance of the lounge and exit the camera range at almost 5:11 a.m. It is clear that something is going on, perhaps a fight, in the direction that the defendant headed because bystanders are focused in that direction. Three people, who Detective Padilla claimed were the defendant, Rakestraw, and Mitchell, appear on the tire shop video around 5:14 a.m. Thus, there is approximately a three-minute time period when the defendant, Rakestraw, and Mitchell cannot be seen on either video (assuming it was indeed these three men on the tire shop video), and not 10-20 seconds as Detective Padilla testified. But, again, the state judge was never told that the defendant could not be seen on the videos for a period of time, even for the 10-20 seconds as Detective Padilla claims.
Detective Padilla first testified that the time period the defendant could not be seen on either video was about 10-15 seconds; he later testified it was about 15-20 seconds.
Detective Padilla also could not adequately explain to this Court how he determined that the defendant was not on either video for 10-20 seconds when the time stamps on the videos reflect a three-minute period of time. This three-minute time gap made it much harder to track the defendant's movements. That gap is important because Detective Padilla testified the short 10-20 second period of time the defendant was not on either video allowed him to track the defendant from one video to the next and ultimately identify the defendant as the shooter. Id. at 80-81, 93.
The three-minute time gap is significant for another reason which was also not included in the search warrant affidavit. The hookah lounge video shows many other young Black men at the entrance to the lounge, and several of the men resemble and are dressed similarly to the defendant, Rakestraw, and Mitchell. For instance, the lounge video clearly depicts the defendant wearing a baseball hat (with the bill facing forward) and white (or light colored) pants that he wore below his waist which caused the crotch of the pants to sag. The defense pointed out that the hookah lounge video shows a young Black man walking by the entrance to the lounge, who has the same build as the defendant and was dressed similarly to the defendant: a baseball hat (with the bill facing forward) and white (or light colored) pants worn below the waist causing the crotch to sag. This man exits the camera's view when he leaves the entrance of the lounge in the same direction as the defendant eventually did. And this man is seen leaving the camera's view of the hookah lounge video well before the defendant allegedly appears in the tire shop video heading toward the parked cars. The omitted information about this similarly built and dressed man was important because Detective Padilla's identification of the defendant in the tire shop video was based, in part, on the person wearing white pants that sagged at the crotch. Id. at 78.
The portion of Detective Padilla's affidavit where he states that he was able to identify Rakestraw walking toward the Chrysler 300 with Williams and Mitchell also omitted important facts. He testified that the hookah lounge video shows Rakestraw wearing a distinctive two-tone coat, black pants, glasses, and a hat that he was wearing backwards. Id. at 72. Detective Padilla testified that he could identify Rakestraw in the tire shop video based on the distinctive two-tone coat and black pants. Id. at 79. However, he also testified that Rakestraw was not wearing a hat in the tire shop video. Id. The absence of a hat is significant because the defense pointed to a Black male in the hookah lounge video who Detective Padilla agreed was dressed similarly to Rakestraw and had long hair like Rakestraw, but was not wearing a hat. Id. at 98. And, in response to the Court's question, Detective Padilla testified that, as far as he is aware, a hat was not recovered at the crime scene. Id. at 176. These omitted facts raise the question of whether it was in fact Rakestraw in the tire shop video. That fact is significant because Detective Padilla's testimony reflects that his identification of Williams as the shooter was based, in part, on: Williams, Rakestraw and Mitchell being friends; Williams and Rakestraw arriving at the lounge together in the same car; and because the three men are seen together in the hookah lounge video at the entrance to the lounge. Id. at 74, 93, 108. The state judge was not told that Detective Padilla could only identify Rakestraw by his clothing in the grainy video, let alone that Rakestraw was not wearing a hat in the tire shop video. The omission of this information is misleading.
Another important omission is the information that Detective Padilla obtained from a witness to the shooting during an interview the morning of the shooting. Juan Hermosillo told Detective Padilla that he saw a Black male, wearing a hat, black jacket, black pants, and black shoes shoot toward the hookah lounge. (Gov. Ex. 1 at 9.) Hermosillo also stated that the shooter was with two other men. Id. Detective Padilla's affidavit never mentions Hermosillo's description of the shooter's clothing, which is in stark contrast to how Williams was dressed (i.e., white baggy pants and a white shirt), or the fact that this man dressed in black shot in the same direction (toward the hookah lounge) as the defendant allegedly did. Detective Padilla also does mention that Hermosillo said that the shooter was with two other men, which is consistent with alleged shooting depicted in the tire shop video. The shooter that Hermosillo describes is clearly not the Black or Hispanic man who was shooting toward the fleeing car, and not the hookah lounge. Detective Padilla testified that he did not provide this eyewitness account in his affidavit because “the witness was general nature, ” and “didn't provide names or anything specific.” (3/14/22 Tr. at 129.) The Court begs to differ. While Hermosillo certainly did not provide a name, he was very specific about: (1) the direction the shot was fired; (2) how the shooter was dressed; and (3) that the shooter was with two men. (Gov. Ex. 1 at 9.) The failure to tell the state judge about Hermosillo's statements - which were consistent with respect to the direction of the shooting and the number of men present, but completely inconsistent with how Williams was dressed - was reckless.
Relatedly, because Detective Padilla never told the judge about Hermosillo's interview, he also never told the judge that he never followed up with Hermosillo to show him the videos or screen shots. That may well have been a question the judge asked if she was told about the interview, especially if she was provided with the videos. Although Hermosillo told Detective Padilla that he did not think he would be able to identify the shooter if he was shown photographs, it was worth a shot given the poor quality of the tire shop video. It would have taken little effort for Detective Padilla to contact Hermosillo and show him the videos or screen shots. If Detective Padilla had done so, perhaps Hermosillo could have identified the shooter. But even if Hermosillo could not identify the shooter from video or screen shots, he may have been able to at least rule out Black males who were not the shooter. Importantly, the hookah lounge video showed a young Black male wearing a hat, a black shirt, and black pants, which is same description of the shooter provided by Hermosillo. This man's face can be clearly seen on the hookah lounge video. The same is true for the defendant. As such, Hermosillo may have been able to at least rule out this man and/or the defendant as the shooter.
Additionally, even if Hermosillo was unable to identify the shooter or rule anyone out, he may have been able to identify one or both of the two men who were with the shooter. If Hermosillo identified Rakestraw and/or Mitchell, it was more likely that the defendant was the shooter given that Detective Padilla testified that he continually tracked these three friends, two of whom arrived at the lounge in the same car, and who are seen together in the hookah lounge video. But if one or both of the other men were not Rakestraw and/or Mitchell, that fact would cut against the defendant being the shooter.
Finally, at a minimum, Hermosillo may have been able to identify whether the shooter was standing in front of the Budget truck as Detective Padilla has surmised. If Hermosillo said that the shooter was not in front of the Budget truck, then it was more likely the defendant (or at least not the man dressed in black) was the shooter shown in the tire shop video. But if Hermosillo said that the man dressed in black was in front of the Budget truck when he fired the shot, that fact would have severely cut against Detective Padilla's identification of the defendant as the shooter.
Detective Padilla testified on cross-examination that at the time of the interview he believed that Hermosillo was describing Williams. However, on redirect examination, Detective Padilla testified that after reviewing the videos, he did not believe that Hermosillo was describing Williams; as such, he did not follow up with Hermosillo. But Detective Padilla did not have to deduce which shooter Hermosillo was describing. Detective Padilla could have easily confirmed his “beliefs” by showing Hermosillo the videos or screen shots which Detective Padilla did not have during the interview the morning of the shooting. Detective Padilla explained that he also did not follow up with Hermosillo because “[i]n investigations, witness testimony is important . . . but when you have video, that typically supersedes witness testimony.” (3/14/22 Tr. at 163.) Detective Padilla's reasoning does not pass the straight-face test given the poor quality of the video used to identify the defendant as the shooter. Detective Padilla's failure to follow up with Hermosillo demonstrates his laser focus on identifying Williams as the shooter, and a reckless disregard of the possibility that another of the many young Black men at this chaotic scene was the shooter.
Detective Padilla's laser focus on Williams alone is also demonstrated by Detective Padilla's failure to try to identify the Black or Hispanic man who fired several shots toward the fleeing vehicle. This man's face can be clearly seen in the hookah lounge video, but Detective Padilla testified that he did not try to find out the identity of this man. He testified that he did not know this man and “didn't have a name.” Id. at 139. But he agreed with defense counsel that he routinely does follow-up investigation on cases. Id. at 148. In terms of follow-up, Detective Padilla could have circulated a screen shot of the Black or Hispanic man within the TPD or other law enforcement agencies, or even the press to see if someone would come forward to identify the man. But, as the defense stresses, Detective Padilla did absolutely nothing to find out the identity of this shooter, who also committed a crime, apparently because he was so focused on Williams.
Finally, the Court notes that the failure to provide the judge with the videos, the conclusory statements in the affidavit about being able to identify Williams as the shooter in the video, and many of the omissions discussed above, likely resulted from the use of a telephonic affidavit to support the search warrant application. The search warrant was obtained two months after the shooting and after Detective Padilla had spent hours reviewing the videos that he obtained within weeks of the shooting. The probable cause for the search warrant was based solely on Detective Padilla's review of the videos. Detective Padilla never testified that there was some exigency, like recent criminal activity, that led him to apply for a telephonic warrant. In fact, Detective Padilla had already obtained an arrest warrant for the defendant, so he clearly believed the defendant was the shooter well before the telephonic application for the search warrant. Thus, Detective Padilla could have submitted a written affidavit that included many more important facts than his telephonic affidavit, along with the videos, for the state judge to review. As defense counsel pointed out, Detective Padilla certainly knew where the defendant resided because he had an arrest warrant and officers went to the defendant's residence to arrest him. Officers could have executed the arrest with a search warrant in hand which was supported by a thorough written affidavit. In light of the absence of any evidence of an exigency and the unique facts present here, the Court also concludes that the use of a telephonic application for the search warrant was reckless given the dots Detective Padilla needed to connect to identify the defendant, and his need to make clear to the judge how he arrived at that identification.
The discussion above demonstrates that Detective Padilla conflated what he saw on two videos whose qualities were markedly different when he represented to the judge in his affidavit that he was able to identify the defendant in the videos as the initial shooter. The result was that he misled the judge about how he was able to positively identify the defendant as the shooter and omitted crucial facts that casted doubt on his identification. As a result, like in Perkins, Detective Padilla misled the judge by reporting less than the total story, thereby manipulating the inferences that the judge drew. Detective Padilla's description of what he saw in the video was not “a reliable substitute” for the video itself. Perkins, 850 F.3d at 1118.
The Court concludes that given the poor quality of the video which allegedly depicted the defendant as the shooter, Detective Padilla was required to provide the video for the judge's independent review, or at least advise the judge about the omitted facts noted above. Instead, he merely proffered his own conclusion about the identity of the shooter based on an incomplete and misleading description of the videos. This was a breach of his duty that he owed to the state judge.
In sum, the Court finds that the defendant has proven by a preponderance of the evidence that Detective Padilla acted with at least a reckless disregard for the truth by misrepresenting and omitting facts in his affidavit. The Court now turns to whether the affidavit, once corrected and supplemented, establishes probable cause.
b. The Affidavit When Purged of its Falsities Is Not Sufficient to Establish Probable Cause.
A defendant challenging an affidavit under Franks must also show that the affidavit purged of its falsities and supplemented by omissions would not be sufficient to support a finding of probable cause. Stanert, 762 F.2d at 782. “‘Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusion of others.'” Stanert, 762 F.2d at 782 (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)). Here, the state court judge's issuance of the search warrant was a mere ratification of the bare conclusion of Detective Padilla that the video shows that the defendant was the shooter.
In Perkins, the court held that once corrected, the search warrant application would include a copy of the image and any probable cause determination would be based on a direct review of the images themselves. 850 F.3d at 1119. The court pointed out that the agent's descriptions of the images were extraneous and not relevant to the probable cause analysis. Id. The court ultimately found that there was not probable cause for the warrant. Id.
Likewise, here, the corrected search warrant application would include the videos and screen shots admitted at the Franks hearing and any probable cause determination would be based on a direct review of videos and screen shots. Detective Padilla's description of the videos is extraneous. Based on the videos and the information omitted from the search warrant affidavit, the Court cannot conclude that there was probable cause to believe the defendant was the shooter, which was the only basis for the issuance of the search warrant.
Most of the reasons discussed above for why the affidavit was false and misleading also impact the probable cause determination. For instance, as discussed earlier, the tire shop video which allegedly depicts the defendant walking to the parked cars, reacting to something, and ultimately firing at least one shot, is too grainy to determine whether this was the defendant. In fact, Detective Padilla testified that the defendant cannot be identified solely by the tire shop video. Id. at 80. Thus, the video itself clearly does not establish probable cause.
Additionally, the time stamps of the hookah lounge video and the tire shop video undercut probable cause. Detective Padilla testified that the hookah lounge video depicts the defendant, Rakestraw and Mitchell in an altercation at the entrance of the hookah lounge. Id. at 73-74. The defendant, Rakestraw, and Mitchell move away from the entrance and can no longer be seen in the hookah lounge video. Id. Detective Padilla testified that 10-20 seconds later the tire shop video shows these men walking to their car. Id. at 95-96, 109-110, 157-158. But the time stamps on the videos show that about three minutes elapsed (not 10-20 seconds) between the time the defendant left the entrance to the lounge and cannot be seen on video, and when the defendant allegedly appears on the tire shop video walking to his car. Perhaps the time stamps on the videos are not accurate; but the government never established that they were inaccurate, and Detective Padilla did not investigate whether they were accurate. Id. at 159. The three minutes when the defendant (or the person Detective Padilla believed was the defendant) does not appear on either video is significant to the probable cause determination because Detective Padilla testified that he used the videos in conjunction to track the defendant's movements in order to conclude that the tire shop video showed that the defendant was the shooter. Id. at 8081, 93, 97, 158. The three minutes the defendant was not seen (or believed to be seen) on either video makes it much more difficult to “track” his movements than the 10-20 second time period that Detective Padilla described.
The inability to track the defendant's movements during these three minutes is also significant to the probable cause determination because many other young Black men can be seen at the entrance of the hookah lounge, and several of these men resemble Williams, Rakestraw and Mitchell, and were wearing similar clothing. The hookah lounge video clearly depicts the defendant wearing a baseball hat (with the bill facing forward) and white (or light colored) pants that he wore below his waist which caused the crotch of the pants to sag. There is a Black man in the hookah lounge video who walks by the entrance to the lounge who was dressed similarly to the defendant: a baseball hat (with the bill facing forward) and white (or light colored) pants worn below the waist causing the crotch to sag. And this man is seen in the hookah lounge video before the defendant allegedly appears in the tire shop video walking to the car. Thus, this man could have easily been the person with saggy white pants who appears on the grainy tire shop video walking to a car and ultimately firing a gun. Indeed, the saggy white pants led Detective Padilla to believe that the defendant was the shooter. That failure to make the judge aware of this other man wearing saggy white pants is also significant because the alleged shooter did not leave in the Chrysler 300, the car in which Detective Padilla observed Williams and Rakestraw arrive at the lounge in. Perhaps this other vehicle belonged to Mitchell, but Detective Padilla's affidavit does not mention when or how Mitchell arrived at the lounge.
Additionally, the three minutes when the defendant, Rakestraw, and Mitchell cannot be seen on either video is important with respect to Detective Padilla's identification of Rakestraw in the tire shop video. There is a Black male who looks like Rakestraw (at least his long hair) and was dressed similarly who can be seen in the hookah lounge video; however, this man was not wearing a hat. Detective Padilla testified that Rakestraw could be seen in the tire shop video, but he was not wearing a hat, and a hat was not found at the crime scene. Id. at 79, 125-126, 176. Thus, Detective Padilla's identification of Rakestraw, and as a result probable cause, is undercut by the absence of a hat on the man that Detective Padilla identified in the tire shop video as Rakestraw. As mentioned earlier, the identification of Rakestraw in the tire shop video was important to Detective Padilla's identification of Williams because the men are friends, they arrived at the lounge together in the same car, and the hookah lounge video shows Williams, Rakestraw, and Mitchell together at the entrance to the hookah lounge. Id. at 74, 93, 108.
The probable cause determination was also significantly undermined by Hermosillo's description of the shooter and shooting. Hermosillo told Detective Padilla that the shooter was a young Black male who was dressed in black, which was consistent with how a young Black male shown on the hookah lounge video was dressed, and inconsistent with how the defendant was dressed. (Gov. Ex. 1 at 9.) Moreover, Hermosillo also said the shot was fired toward the hookah lounge, which was the same direction that the defendant allegedly shot. Id. Finally, he also stated that the shooter was with two men, which is consistent with the alleged shooting captured on the tire shop video. As in Perkins, Detective Padilla omitted important information that would have undercut a finding of probable cause.
Finally, as discussed earlier, probable cause was affected by Detective Padilla's failure to conduct a follow-up interview with Hermosillo after he obtained the videos. Detective Padilla testified that after reviewing the videos, he did not believe that Hermosillo was talking about the shooter by the Budget truck. (3/14/22 Tr. at 154.) However, Detective Padilla did not know that when he interviewed Hermosillo the morning of the shooting because he had not yet obtained the videos. In fact, Detective Padilla testified that at the time of the interview he believed that Hermosillo was describing Williams. Id. at 163. But he never took the time to follow up with an eyewitness to confirm his later belief that Hermosillo was not describing Williams. If Detective Padilla had followed up with Hermosillo and shown him the videos or screen shots, he may have been able to: identify the shooter based on the hookah lounge video; rule out young Black men as the shooter based on the video; identify the two men with the shooter, which may have aided in identifying the shooter; and/or identify the location of the Black male shooting toward the hookah lounge, which could have also aided in identifying the shooter. In addition to these failures being reckless, they impacted the probable cause determination.
When purged of its falsities and supplemented by the important omitted facts, the affidavit that would be used to establish probable cause would include the following: (1) a grainy video in which no one can be identified by facial features, body type, tattoos, or definitively by clothing; (2) another Black man with similar features to Williams who was also wearing baggy white pants, which is one of the primary ways Detective Padilla identified the defendant in the tire shop video; (3) a man who looks like Rakestraw in the hookah lounge video who was not wearing a hat, and a person who could be Rakestraw in the tire shop video based on his two-tone coat, but who was not wearing a hat; (4) a three-minute period of time when Williams, Rakestraw, and Mitchell cannot be seen on either video, which is in stark contrast to the 10-20 seconds testified to by Detective Padilla, which makes it impossible to track their movements; (5) an eyewitness to the shooting who told Detective Padilla that the shooter was dressed in black, and not white clothing like the defendant; (6) this same witness telling Detective Padilla that the man dressed in black shot toward the hookah lounge, which is the same direction the defendant allegedly shot; (7) the witness telling Detective Padilla that the shooter dressed in black was with two other men, which is consistent with the number of men depicted in the tire shop video; and (8) the uncertainty about whether this witness could have provided facts important to the probable cause determination; specifically, whether he could: identify the shooter from the hookah lounge video or screen shots; rule out men who were not the shooter; and/or point out the location of the shooter that he saw to ascertain whether the man dressed in black was the shooter in front of the Budget truck, or if he was yet another shooter in a different location.
These facts do not come close to establishing probable cause that the defendant was the shooter, which was the lynchpin for obtaining the search warrant. In fact, there are more unknown facts that are relevant to a probable cause determination than known facts.
For the reasons set forth above, the Court finds that the defense has proven by a preponderance of the evidence that the affidavit, once corrected and supplemented, does not establish probable cause. By reporting less than the total story, Detective Padilla manipulated the inferences the judge could have drawn by watching the videos. To allow the judge to be misled in such a manner “denude[s] the probable cause requirement of all real meaning.” Stanert, 762 F.2d at 871. The result is that the items seized from the residence and vehicle must be suppressed.
CONCLUSION
For the reasons stated above, the Court recommends that the District Court grant the instant motion and order that the evidence seized from the defendant's residence and vehicle be suppressed.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).