Opinion
CRIMINAL NO. 06-0145 (CCC).
August 1, 2006
REPORT AND RECOMMENDATION INTRODUCTION
Defendant José Rivera Aguirre (hereinafter "Rivera Aguirre") filed a Motion to Suppress claiming the affidavit in support of the search warrant contained false statements without which no probable cause would have been found by the state court judge. (Docket No. 16).
The government filed its Opposition to the Motion to Suppress contending defendant's proffer of an unsworn statement in support of above contention, failed to address the alleged false statement in the affidavit in support of the search warrant. As such, the government submits defendant is not entitled to a hearing since the requirements developed after Franks have not fulfilled (Docket No. 17).
The Court referred these motions to this Magistrate Judge for report and recommendation with the caveat that if a hearing was deemed necessary, it was to be held by August 14, 2006 and the report issued by September 15, 2006 (Docket No. 18). This Magistrate Judge finds there is no need for an evidentiary hearing and, thus, submits this report within the time constraints instructed by the Court.
GENERAL BACKGROUND
Defendant Rivera Aguirre stands charged in a two count Indictment with being a felon in possession of a firearm and ammunition in violation to: (Count One) 18 U.S.C. § 922(g)(1) and § 924(a)(2); (Count Two) for possession of a Smith Wesson .357 revolver with obliterated serial number in violation of 18 U.S.C. § 922(k) and § 924(a)(1)(B). The firearms at issue were retrieved from a residence at Lula Development in Ponce, Puerto Rico, after Puerto Rico Police agents executed a search warrant issued by a state court judge. The warrant was supported by an affidavit sworn by agent Martin Pérez Rodríguez attesting to his own observations after receipt of a reliable anonymous call during April 5, 2006 and April 10, 2006, regarding activities by defendant Rivera Aguirre with other individuals at the residence of La Lula.LEGAL DISCUSSION
Defendant Rivera Aguirre submits a summary of the content of Agent Pérez Rodriguez' affidavit in support of the search warrant which is based on his observations on April 5, 2006, while driving an unmarked vehicle with tinted windows and in possession of binoculars and a portable radio, he parked around 4:10 p.m. at a strategic location with plain view to the residence and established surveillance. After some twenty five minutes, Agent Pérez Rodríguez observed a Suzuki Aereo with license plate EVJ-133 parked right in front of the residence. An individual, described in the affidavit, step out of the vehicle and took from the trunk a clear plastic bag containing smaller plastic bags with a white powder, purported cocaine. The individual then walked toward the residence holding the plastic bag and opened the door of the residence and entered. The agent lost sight of the individual and decided to leave.
On April 10, 2006, defendant Rivera Aguirre summarized Agent Pérez Rodríguez' actions as described in the affidavit as having returned in a different vehicle to the residence at La Lula around 4:50 p.m. and parked in the exact spot. The agent observed an individual arriving in a black bicycle calling at the residence from where the same individual the agent observed on April 5, 2006 came out. The individual with the bicycle gave some dollar bills to the individual, who later counted the money and placed it inside his pants' front right pocket. The individual walked back to the residence, opened the door and the agent lost sight of him. Shortly after, the individual came out of the residence holding with his right hand a plastic bag containing what the agent identified as marihuana. The individual gave the bag to the person in the bicycle who placed the bag in the right front pocket and left. Some fifteen minutes later, Agent Pérez Rodríguez observed a red Honda Civic vehicle which honked its horn and the same individual from the residence came out of the residence. He greeted the driver of the Civic through the driver's side window. The driver gave the individual some dollar bills and the individual walked back to the house bringing a few minutes later a plastic bag he removed from his pants pocket containing small plastic bags with a white powder of purported cocaine. The driver took the bag and left. The agent could write down only the last three digits of the Honda Civic license plate (415). Agent Pérez Rodríguez lost sight of the individual who came out of the residence after he entered the house.
Agent Pérez Rodríguez applied for search warrants for the residence and for the Suzuki Aereo with license plate EVJ-133, which were authorized by a state court judge and executed same the following day on April 11, 2006. The agents found an AK-47 rifle in the master bedroom closet of defendant Rivera Aguirre's residence, as well as AK-47 magazines, ammunition and drug paraphernalia in his car, the Suzuki Aereo. After legal warnings and a document to that effect was signed by defendant Rivera Aguirre in Spanish, an unsigned written statement was made admitting to ownership of the weapon seized.
Defendant Rivera Aguirre proffers the testimony, through an unsworn statement under penalty of perjury, of his common-law wife, Mrs. Dagmar Rivera Rodríguez, as to the effect that any observation of Agent Pérez Rodríguez as to defendant Rivera Aguirre entering or exiting the front door of the residence could not have taken place since said door is secured by a padlock whose keys have not be located during the last eight months. As such, defendant seeks a hearing under Franks v. Delaware, 438 U.S. 154 (1978) to suppress the evidence seized as fruits of the poisonous tree.
A defendant must be able to clear the reckless disregard hurdle to be entitled to a hearing. A hearing will be denied if defendant has failed to make the requisite substantial preliminary showing that, absent the false information, the affidavit contained insufficient evidence to support a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674 (1978). See United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002).
A Franks hearing is warranted where the defendant makes a "substantial preliminary showing" that (1) a false statement, (2) knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and (3) the allegedly false statement is necessary to the finding of probable cause. See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. Because defendant does not allege the statement to have been made with actual knowledge of its falsity, we consider only whether it was made with reckless disregard for the truth and, if it was, whether it was necessary to the finding of probable cause. United States v. Adams, 305 F.3d 30 (1st Cir. 2002).
1. Reckless Disregard for the Truth.
To prove reckless disregard for the truth, the defendant must prove that the affiant "in fact entertained serious doubts as to the truth" of the allegations. United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (agreeing with United States v. Davis, 617 F.2d 677, 694 (D.C. Cir. 1979) (holding that the First Amendment definition should be applied by analogy in the Franks setting); see also Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (same). Recklessness may be inferred "from circumstances evincing obvious reasons to doubt the veracity of the allegations." Williams, 737 F.2d at 602.
Defendant Rivera Aguirre has failed to show circumstances indicating that, except for arguments of counsel since the supporting affidavit was not included, there is a serious doubt about the observations referred by the agent as to defendant's actions regarding the entry and exiting of the house searched; there is no significant evidence proffered that such entry and exiting was effectively carried out through the padlocked gate or that there was no way the agent could have observed defendant entering or leaving the premises or in near proximity thereof from his vantage point. Under these circumstances, the affidavit summary as referred by defense counsel's arguments does not amount to reckless disregard that must be established for a Frank's hearing. United States v. Dale, 991 F.2d 819, 844 (D.C. Cir. 1993) ("failure to investigate fully is not evidence of an affiant's reckless disregard for the truth.").
2. Probable Cause Standard.
A material omission of information may also trigger a Franks hearing. See United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990). Therefore, one must consider whether defendant has made "a substantial preliminary showing" that the omissions he identifies were "made knowingly and intentionally" or "with reckless disregard for the truth" and whether the omissions were "necessary to the finding of probable cause." Franks, 438 U.S. at 155-56, 98 S.Ct. 2674.
Defendant Rivera Aguirre also failed to make the requisite substantial preliminary showing that, absent the alleged false information, the affidavit contained insufficient evidence to support a finding of probable cause under the Franks' rationale. See Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. Courts have noted an important difference between the "necessary" inquiries when the challenge is to the omission of an allegedly material fact rather than to the inclusion of an allegedly false material statement. With an omission, the inquiry is whether its inclusion in an affidavit would have led to a negative finding by the magistrate on probable cause. If a false statement is in the affidavit, the inquiry is whether its inclusion was necessary for a positive finding by the magistrate on probable cause.
Probable cause to search a home exists so long as the underlying affidavit contains information showing a fair probability that evidence of a crime would be found there. U.S.C.A. Const. Amend. 4. See United States v. Grant, 218 F.3d 72, 76 (1st Cir. 2000). "[P]robable cause need not be tantamount to proof beyond a reasonable doubt. . . . Probability is the touchstone." United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (quoting United States v. Aguirre, 839 F.2d 854, 857 (1st Cir. 1988)). The probable cause standard does not require any showing that an officer's belief that evidence will be found in the searched premises "be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535 (1983). Probable cause to search a home existed so long as the affidavit contained information showing a "fair probability" that evidence of a crime would be found there. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317 (1983); see Khounsavanh, 113 F.3d at 283;United States v. Procopio, 88 F.3d 21, 25 (1st Cir. 1996). See also Grant, 218 F3d at 74. An affidavit submitted in support of a search warrant application is presumed valid, see Franks, 438 U.S. at 171, 98 S.Ct. 2674; United States v. Spinosa, 982 F.2d 620, 626 (1st Cir. 1992) (quoting Franks), but that presumption may be surmounted by a showing that it contains either (1) a "false statement [made] knowingly and intentionally, or with reckless disregard for the truth," Franks, 438 U.S. at 155, 98 S.Ct. 2674, or (2) "technically accurate statements" that "have been rendered misleading by material omissions." United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993).
Succinctly, to mandate an evidentiary hearing, a defendant must submit more than conclusory averments and be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Defendant should point out specifically the portion of the warrant affidavit that is claimed to be false; and should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence, satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Otherwise, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to a hearing. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. Still, material omissions may also be the basis for a Franks hearing. See United States v. Paradis, 802 F.2d 552, 558 (1st Cir. 1986) (allegedly false statements made in affidavit in support of search warrant were not necessary to finding of probable cause and, thus, defendant was not entitled to hearing challenging truthfulness of the statements); see also United States v. Rumney, 867 F.2d 714, 720 (1st Cir. 1989).
A district court's determination that a defendant has not made the requisite showing warranting further exploration will be upheld unless clearly erroneous. See United States v. Southard, 700 F.2d 1, 10 (1st Cir. 1983) (citing United States v. Cruz, 594 F.2d 268, 272 (1st Cir. 1979), cert. denied, 444 U.S. 898, 100 S.Ct. 205 (1979)).
3. Application to this case.
The government's opposition states defendant Rivera Aguirre has failed to address the alleged false statement contained in the affidavit in support of the search warrant executed at defendant's residence. This contention is controverted since defendant's premises for suppression relate to the possibility that Agent Pérez Rodríguez could not have observed him entering or exiting through the front door of the residence because defendant's common-law wife states the door is gated and locked since those keys have been lost some eight months before.
Defendant's proffer of the testimony of Mrs. Dagmar Rivera Rodríguez regarding the loss of the keys to the padlocked gate of the front door entrance serves little to contest the description of the events observed by the law enforcement agent as to drug trafficking activities in front of the residence by defendant and other individuals during two days of surveillance at the site. Even in the presence of any misstatements that are knowingly false or reckless, which is limited to the contention as to the gated and locked front door of the residence, same is not considered material and, thus, not affecting the probable cause determination by a detached state court magistrate. See United States v. Vanness, 85 F.3d 661, 662-63 (D.C. Cir. 1996) (warrant valid under Leon because false statement not material). See also Franks, 438 U.S. at 171-72, 98 S.Ct. 2674 ("[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required."); United States v. Grant, 218 F.3d at 77.
In sum, even taking as truth and without holding an evidentiary hearing to determine such a factual dispute, the proffered evidence is not deemed material for the determination of probable cause by a detached judicial officer. Whether defendant could have entered through the front or the back door, the events that were described as having transpired during the April 5 and April 10, 2006 surveillance observed by Agent Pérez Rodríguez took place in front of the residence, with full description of the participating individuals, their vehicles, the acts, exchange of monies, plastic bags, all well within the content of drug trafficking activities. Although any discrepancy on the descriptions of events might be useful for impeachment of trial testimony, disregarding same would have no bearing on the probable cause determination for purposes of a motion to suppress.
For the foregoing reasons, it is recommended defendant's Motion To Suppress be DENIED.
CONCLUSION
Accordingly, it is recommended that the Motion to Suppress be DENIED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").