Opinion
Case No. 09-CR-0026-CVE.
May 13, 2009
OPINION AND ORDER
Now before the Court is defendant Ronald Lyn Crawford's motion to suppress (Dkt. # 13) evidence seized during a warrant search of his residence. He claims that there was no probable cause to issue the search warrant, the search warrant was issued based on false information, and, if the warrant is found invalid, the good faith exception should not apply. For the reasons set forth below, defendant's motion is denied.
I.
The following facts are based only on the parties' briefs and the affidavit in support of the search warrant. On January 6, 2009, Tulsa Police Department (TPD) Officer Jeff Henderson signed an affidavit that he has been a police officer with the TPD for more than thirteen years and is currently assigned to the Organized Gang Unit. Henderson stated that in the 72 hours prior to his affidavit he was contacted by and met with a reliable confidential informant (RCI). Dkt. # 21, at 5. The RCI, provided reliable information to law enforcement on more than one hundred occasions. Id. Of the subjects arrested based on this RCI's information, all were successfully charged with narcotics violations. Dkt. # 13-2 (Affidavit). According to Henderson, the RCI was never untruthful or misleading, and the RCI's information had been up to date and vital to several narcotics investigation. Dkt. # 21, at 5. In addition, the RCI had demonstrated knowledge of narcotics trafficking and that knowledge was consistent with Officer Henderson's training and experience. Id.
The RCI told Henderson that in the prior 72 hours the RCI had been to a residence at 3631 South Phoenix Avenue, and observed a black male, known to the RCI as "Ronald Crawford," selling cocaine out of this residence. Id. The RCI described the substance that the RCI observed and was certain that it was cocaine. Id. After receiving the RCI's report, Henderson and other TPD officers conducted surveillance of the residence at 3631 South Phoenix Avenue and observed short term vehicular and pedestrian traffic to and from the residence. Id. Henderson stated that short term traffic is consistent with the sale of narcotics and other controlled illegal substances. Id. The officers also observed Ronald Crawford coming and going from the residence. Id.
On January 12, 2009, TPD officers conducted surveillance at the house in preparation for the execution of the search warrant. Dkt. # 21, at 2. At 1:20 p.m., Crawford left the house and was pulled over by TPD officers for driving 45 mph in a 25 mph zone.Id. Officer Henderson informed Crawford that he had a search warrant for Crawford's residence and showed Crawford the warrant.Id. Crawford stated, "Man, all I got is a gun there." Id. Officer Henderson asked defendant if there were any other people in the house and Crawford said, "No." Id. Crawford was arrested as a convicted felon in possession of a firearm. Id. TPD officers took Crawford back to his residence and executed the search warrant.Id.
The search warrant authorized the TPD to search for "COCAINE, INSTRUMENTALITIES USED IN THE SALE OF COCAINE, FRUITS . . .," as well as firearms, ammunition and proof of ownership of such items, monies, and proof of residency. Dkt. # 13-2 (Search Warrant). TPD Officer Yelton found a small plastic bag containing 1.62 grams of marijuana in plain view on a tray in the living room. Dkt. # 21, at 2. Officer Yelton then looked under an air mattress on the living room floor and found a Taurus .357 magnum revolver. Id. Crawford told the officers "That's the gun I told ya'll about."Id. Officers Yelton and Castleberry then searched the kitchen and found a digital scale and residency papers in one of the kitchen drawers. Id. Officer Yelton also found, in a kitchen cabinet, a "JB" oil treatment can containing a false container. Id. Officers called in a drug dog to continue the search and the dog alerted the officers to the area around the kitchen sink and counter. Id. at 3. Officer Johnson looked under the sink and found a white plastic sack containing $7,000 in cash concealed between the pipes and the wood frame. Id.
While the officers were searching the kitchen, Officer Henderson advised Crawford of his Miranda rights and asked where the cocaine was located and told Crawford that if he cooperated, Henderson might be able to help him. Id. Crawford stated, "Man, you're still going to arrest me." Officer Henderson told Crawford that he might not have to be arrested if he cooperated. Id. After some hesitation, Crawford told Henderson that all he had was the gun and that the TPD would not be interested in the people he dealt with because they were smaller than Crawford. Id. After the other officers found the bag containing cash, Officer Henderson asked defendant about the money. Crawford said that he works construction jobs and that he had left the money under the sink for the prior two months, including during his drives home to Texas every few weeks. Id.
On March 4, 2009, the grand jury returned an indictment charging Crawford with one count of felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant filed this motion to suppress on April 23, 2009, and requested a Franks hearing. Dkt. # 13. The Court set a hearing on defendant's motion to suppress for May 8, 2009. At the suppression hearing, the government objected to defendant's request for an evidentiary hearing on the ground that defendant failed to specifically allege the basis for the hearing. Although defendant did not make his initial showing for a hearing underFranks, defense counsel, in opening statement, specifically identified two areas of alleged falsity in the affidavit for a search warrant: (1) the RCI told Officer Henderson that he/she had been in Crawford's house within 72 hours and had seen cocaine transactions in the residence and (2) Officer Henderson conducted surveillance at the home within 72 hours of January 6, 2009 and saw Crawford coming and going. Over the government's objection, the Court conducted an evidentiary hearing. The government called Officer Jeff Henderson as its witness, and defendant called Ranica Crowder as his witness.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that a criminal defendant may challenge the factual allegations of an affidavit supporting a search warrant and, in some circumstances, a defendant is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, the defendant's "attack must be more than conclusory and must be supported by more than a 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 proof."Id. at 172. The focus of a Franks motion must be on the veracity of the affiant's statements, not statements made by an informant.United States v. Rodriguez-Suazo, 346 F.3d 637, 648 (6th Cir. 2003) (the defendant's attack on the informant's veracity was insufficient to meet his burden for a Franks hearing); United States v. Green, 178 F.3d 1099, 1108 (10th Cir. 1999) (Franks permits a defendant to "challenge the veracity of statements made by a search warrant affiant, not the veracity of statements made by a confidential informant to the affiant.").
Officer Henderson testified to the following facts: In the 72 hours prior to signing his affidavit for a search warrant, Officer Henderson was contacted by the RCI who told him that he/she had been in a residence located at 3631 South Phoenix Avenue and observed Ronald Crawford selling and packaging cocaine. The RCI reported that he/she had witnessed several drug transactions. Officer Henderson testified that on the basis of the RCI's information he conducted surveillance within 72 hours of signing the affidavit on January 6, 2009. Officer Henderson stated that he observed Crawford coming and going from the residence and witnessed short term vehicular and pedestrian traffic in and out of the residence. Specifically, on cross examination, Officer Henderson testified that he conducted surveillance during his 10 a.m. to 6 p.m. shift on Monday, January 5, 2009. On that day, he observed Crawford in the driveway entering the house. He recognized Crawford from prior investigations and he recalled seeing the same white Chevrolet Suburban that Crawford was later driving when he was pulled over on January 12, 2009. Officer Henderson also testified that on January 6, 2009, he conducted surveillance of Crawford's residence between approximately 9:30 and 10:30 a.m. Officer Henderson testified that when he saw Crawford on January 6, Crawford went from his yard to the Suburban and back to the house. At 10:30 a.m., Officers Henderson and Yelton left to request a search warrant. The search warrant was signed by the magistrate judge at 10:59 a.m. (Government Exhibit 2).
Officer Henderson testified that he also conducted surveillance in the days between the issuance and the execution of the search warrant. However, that testimony is irrelevant for the purposes of this motion.
Ranica Crowder testified that she knows Crawford because she is his "baby mother and fiancée." Crowder is the mother to Crawford's one-year old daughter and they are expecting another child. She testified that she and Crawford reside together in Arlington, Texas. On cross examination, Crowder testified that she does not have a job and she attends dental assistant school. She testified that she had two weeks off for Christmas break and believed that school was in session in early January. Crowder testified that she regularly attends her classes.
During the execution of the search warrant, officers found Tulsa residency papers in Crawford's name. However, Crawford told police officers that he goes back and forth between Tulsa and Texas every few weeks. See Dkt. # 21, at 3.
With respect to the relevant time period, Crowder testified that she and Crawford were in Arlington with Crawford's two daughters from a previous relationship. According to Crowder, on January 3, 2009, Crawford left Arlington to drive one of his daughters back to her mother's house in Tulsa. Crowder testified that Crawford returned to Arlington late at night on January 4, 2009 (approximately 12 a.m. on January 5, 2009). Crowder stated that on January 5, 2009, she and Crawford went to the Washington Mutual/Chase Bank on Green Oaks Boulevard in Arlington to get a document notarized in order to enroll one of Crawford's daughters in school in Arlington. According to Crowder, they arrived at the bank between 8:15 and 8:20 a.m. and left at approximately 8:45 a.m. Crowder said that she and Crawford then took his daughter to the school to enroll, but the process took too long and the school said that they would have to bring her back to start classes on January 6, 2009.
The Court finds that the drive between Tulsa, Oklahoma and Arlington, Texas is approximately 4 hours.
Crowder testified that she and Crawford spent the rest of January 5 together in Arlington. Crowder stated that Crawford slept in Arlington that night and brought his daughter to school the next morning. Crowder recalled that Crawford left to take his daughter to school at 8 a.m., and returned at approximately 8:10 a.m. Crowder testified that they spent the rest of the morning of January 6 together in Arlington.
According to Crowder, the next time Crawford returned to Tulsa was during the week of January 13, 2009, but she could not precisely recall when he left Arlington. She testified that his daughter's birthday was on January 11, 2009, and thought that Crawford might have left Arlington before January 11, 2009, so that he could be in Tulsa for the birthday. Crawford stated, however, that she could not remember precise dates and times.
At that hearing, the defendant introduced two affidavits into evidence. One was an affidavit from Tracy Garcia, the notary public at the bank in Arlington, Texas. In her affidavit, Ms. Garcia stated that she notarized Crawford's signature on a school document on January 5, 2009, at the Washington Mutual/Chase Bank in Arlington, Texas. Defendant Exhibit 1. Neither her affidavit, nor the attached Journal of Notarial Acts, states the time that Crawford was at the bank. The other affidavit is from Randi Smith, the Assistant Principal of Bryant Elementary School in Arlington, Texas. Ms. Smith states that she is the custodian of records for the Arlington Independent School District. Defendant Exhibit 2. In that capacity, she attached two records: an annual residency affidavit and the Bryant Elementary Sign In/Out Sheet. The annual residency affidavit was signed and notarized on January 5, 2009, but Crawford's daughter's date of enrollment was January 6, 2009. Defendant Exhibit 2. There is nothing on the form to corroborate Crowder's testimony that she and Crawford attempted to enroll his daughter on January 5, 2009. The sign-in sheet is dated January 6, 2009, and was submitted to establish that Crawford was in Arlington on January 6 and, accordingly, could not have been in Tulsa on that morning.
At the initial hearing on defendant's suppression motion, the Court was presented with conflicting testimony as to Crawford's whereabouts, which relates to the accuracy of the surveillance component of the search warrant affidavit. Officer Henderson testified that he observed Crawford in Tulsa both on January 5 in the afternoon and on the morning of January 6 between 9:30 and 10:30 a.m.; however, Crowder testified that he was in Arlington to take his daughter to school. The Court reconvened the evidentiary hearing to hear additional evidence regarding the January 5 and 6 surveillance.
On May 12, 2009, at the reconvened evidentiary hearing, Officer Henderson again testified that he conducted surveillance at defendant's residence on January 5 and 6, 2009. Officer Henderson stated that he and his partner, Officer Bill Yelton, parked in the driveway of a residence at 3610 South Phoenix Avenue. The driveway was across the street from Crawford's residence, at a distance of approximately 150 to 200 feet. According to Officer Henderson, the owner of the residence at 3610 South Phoenix Avenue, Jim Reese, would be able to confirm that Officers Henderson and Yelton were in the driveway at approximately 1 p.m. Officer Henderson testified that the surveillance lasted until 3 or 3:30 p.m. At some point while conducting surveillance, the officers moved to a park located near Crawford's home. From that vantage point, the officers were able to clearly see the street in front of Crawford's residence, but could not see individuals entering the residence.
Officer Henderson testified that he arrived at Crawford's residence at approximately 1 p.m. on January 5, 2009, and observed defendant's white Suburban parked in the driveway of the residence. Approximately 45 minutes to one hour later, Officer Henderson observed Crawford exiting the residence and walking to the Suburban. He entered the Suburban, re-emerged a few minutes later, and returned to the residence. During the time that Officer Henderson was at Crawford's residence, he observed 3 or 4 vehicles pull up to the house and the drivers go inside. All of the drivers were black males, and none stayed in the house for more than 15 minutes; Officer Henderson agreed that the activity would be described as "short term traffic."
Officer Henderson testified that he returned to the police station and, using his office computer, prepared his affidavit in support of a search warrant. In support of Officer Henderson's testimony that he prepared his affidavit on January 5, 2009, the government introduced a screen shot from Officer Henderson's computer showing that the document was last modified at approximately 6:20 p.m. on January 5, 2009. Government's Exhibit 3. Officer Henderson testified that all of the information in the affidavit relating to surveillance was from January 5, 2009 or earlier, and he did not modify the affidavit on January 6, 2009.
Officer Henderson testified that, on January 6, 2009, he and Officer Yelton returned to Crawford's residence to conduct additional surveillance. He said that they arrived around 9:30 a.m. and stayed until approximately 10:30 a.m. When they arrived, the white Suburban was in the driveway. At approximately 10 a.m., Officer Henderson observed Crawford exit the residence and enter the Suburban. Several minutes later, Crawford returned to the residence. Officer Henderson testified that they left Crawford's residence and went to the courthouse to obtain a search warrant. The warrant was signed by the state judge at 10:59 a.m. Government Exhibit 2.
The government also called Officer Bill Yelton to testify at the reconvened evidentiary hearing. Officer Yelton, who has been with the TPD for 25 years, is currently assigned to the Special Investigations Division in the Organized Gang Unit. Officer Yelton's partner is Officer Henderson. Officer Yelton testified that he conducted surveillance with Officer Henderson at approximately 1 p.m. on January 5, 2009. He testified that they observed Crawford's residence from the driveway of a house at 3610 South Phoenix Avenue. Officer Yelton estimated that they were 100 yards from Crawford's residence. Officer Yelton observed a black male exit the residence, enter a white SUV, and then return to the residence. Officer Yelton testified that he did not know Crawford at the time he observed the black male at the residence. Officer Yelton also observed 3 or 4 cars arrive at Crawford's residence, and watched the drivers enter Crawford's residence and leave shortly thereafter. Based on his experience, Officer Yelton testified that short term traffic is indicative of possible drug trafficking activity.
Officer Yelton also testified that he and Officer Henderson returned to conduct surveillance at approximately 9:30 a.m. on January 6, 2009. The white Suburban was in the driveway when they arrived. Again, Officer Yelton observed short term traffic at Crawford's residence. Officer Yelton could not recall whether any of the black males he saw was Crawford. Officer Yelton stated that he and Officer Henderson went to the courthouse obtain the search warrant and when they returned to Crawford's residence at approximately 12 p.m., the white Suburban was gone. The officers did not execute the warrant until January 12, 2009.
II.
On the basis of the evidence presented at the suppression hearing, the Court makes the following findings:
Both Officer Henderson and Officer Yelton are credible. Both officers were specific about what they could and could not recall. With regard to the RCI, the Court finds that Officer Henderson was told by the RCI that he/she was in Crawford's residence within the 72 hours prior to the issuance of the search warrant. With regard to the surveillance component of the affidavit for search warrant, Officer Henderson testified that he knew defendant from prior investigations, and the Court finds credible Henderson's testimony that he was certain he saw Crawford in the driveway of his residence on January 5 and 6, 2009. Officer Yelton credibly testified about his recollection of the surveillance and admitted that he did not know Crawford and therefore could not testify as to whether any of the black males he saw was Crawford. Because Officer Henderson was credible as to the RCI and the surveillance and Officer Yelton was credible as to the surveillance, the Court finds that the statements in Officer Henderson's affidavit are truthful. Further, the Court finds that Officer Henderson's affidavit was based on the surveillance conducted on January 5, 2009 only, so the January 6 identification, even if mistaken, is not material.
With regard to the defendant's witness, Ranica Crowder, the Court finds that Crowder's testimony was generally not credible. First, she is the mother of one of Crawford's children and is expecting a second child with him. Second, her testimony as to the events of January 5 and 6 appeared overly rehearsed. Third, Crowder was able to specifically recall dates and times when attempting to establish Crawford's whereabouts during the surveillance period, but stated that she was not good at remembering dates and times for other time periods. The Court does not doubt Crowder's testimony that Crawford had a document notarized at a bank in Arlington, Texas on the morning of January 5, 2009. The Court notes that the affidavit of Tracy Garcia supports Crowder's testimony that Crawford visited a notary in Texas on January 5, 2009. Defendant Exhibit 1. However, the Court finds that the rest of Crowder's testimony was not credible.
Specifically, the Court finds that Crowder's testimony that Crawford spent the day and night of January 5 in Arlington is not credible. Crowder further testified that Crawford was in Arlington on the morning of January 6, 2009 to take his daughter to school. In support of her testimony, defendant submitted the sign-in sheet from his daughter's elementary school (Defendant Exhibit 2). However, it appears to the undersigned that the school record shows that Crawford signed in at 3:50 p.m., despite Crowder's testimony that Crawford took his daughter to school at 8 a.m. The Court finds that a 3:50 p.m. sign-in time is consistent with the version of events testified to by Officers Henderson and Yelton. Moreover, the school documents submitted by defendant (Defendant Exhibit 2) support the Court's finding that Crawford's daughter was not enrolled until January 6, 2009. The Court finds the most credible version of events, based on all of the evidence, is that Crawford traveled to Tulsa on January 5 after having his signature notarized at the bank in Arlington. He stayed in Tulsa until sometime after 10:30 a.m. on January 6, and returned to Arlington and signed in at his daughter's school at 3:50 p.m. Regardless, the Court finds that all statements in the search warrant affidavit are truthful.
III.
In support of his motion to suppress, defendant argues that the affidavit did not contain sufficient facts to establish probable cause, that the search warrant was based on a false statement from Officer Henderson, and, if the warrant is found to be invalid, the good faith exception should not apply.
A. The Affidavit Contains Sufficient Facts to Establish Probable Cause
Defendant argues in his motion to suppress that the affidavit in support of the search warrant does not state sufficient facts to support a finding of probable cause. The government responds that the affidavit provides more than the mere suspicions or beliefs of a confidential informant, and Officer Henderson adequately corroborated the RCI's evidence before requesting a search warrant. The Supreme Court has stated that probable cause is a "fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213 (1983). In the context of search warrants, the Tenth Circuit requires that a magistrate issuing a search warrant find that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Tisdale, 248 F.3d 964, 970 (10th Cir. 2001) (quoting Gates, 462 U.S. at 238). "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990). A magistrate may consider the affiant's experience as part of his probable cause determination. United States v. Soussi, 29 F.3d 565, 569 (10th Cir. 1994). When reviewing the search warrant affidavit, this Court must "interpret [the affidavit] in a common sense and realistic fashion." United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006). A reviewing court must show great deference to the magistrate's finding of probable cause and the magistrate's finding should be upheld if the magistrate had a "'substantial basis' for determining that probable cause existed." United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008) (quoting United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)).
Defendant argues that the affidavit for the search warrant contained boilerplate language and lacked specific information to establish probable cause. The government argues that the affidavit contained more than boilerplate language, including facts about Officer Henderson's experience, his conversation with the RCI, and his personal observation of short term traffic at Crawford's residence. The Court finds that the facts contained in the affidavit are sufficiently specific to establish probable cause.
B. The Search Warrant Was Issued Based on Truthful Information
Defendant argues that the affidavit was "presented to the judge with knowing or reckless falsity of information" and, accordingly, the search warrant was based on a false statement and is invalid. Defendant specifically alleges that Officer Henderson's statements in his affidavit were false because (1) the RCI was not at Crawford's house in the 72 hours before the affidavit was written and (2) Officer Henderson could not have seen Crawford in Tulsa on January 5 and 6, 2009.
In his affidavit, Officer Henderson stated that the RCI told him that in the past 72 hours the RCI had been to a residence at 3631 South Phoenix Avenue, and observed a black male, known to the RCI as "Ronald Crawford," selling cocaine out of this residence. Officer Henderson testified that his affidavit accurately reflected what he was told by the RCI. It is undisputed that Crawford was in Tulsa from approximately January 3 until late at night on January 4, 2009. Thus, the RCI's statement to Officer Henderson that he/she was in Crawford's house in the 72 hours prior to January 6, 2009 is consistent with the facts established. Because the relevant inquiry in a Franks hearing is the truthfulness of the affiant's statement, not the truthfulness of the informant's statement, see Green, 178 F.3d at 1108, the Court finds that Officer Henderson did not knowingly make a false statement regarding the RCI's information in his affidavit.
Furthermore, Officer Henderson's statements regarding the surveillance were also truthful. Both officers testified that they conducted surveillance at Crawford's residence on January 5, 2009 from approximately 1 p.m. until 3 or 3:30 p.m. The only credible evidence that Crawford was in Arlington on January 5, 2009 is the notary's affidavit that Crawford had a document notarized on that day; the affidavit does not state when Crawford had the document notarized. The Court finds that it is most likely that Crawford was in the bank in the morning and then traveled to Tulsa before 1 p.m. Therefore, not only is Officer Henderson's statement in his affidavit that he conducted surveillance in the 72 hours prior to obtaining a search warrant truthful, but also it is likely he did see Crawford that afternoon. Even if Officer Henderson were mistaken about seeing Crawford on January 6 (and the Court does not believe he was mistaken), the affidavit was based only on the surveillance of January 5. Accordingly, whether Crawford was in Tulsa or Arlington on January 6 is immaterial; the search warrant did not contain any untruthful statements and, as a result, was properly issued.
C. Good Faith Exception
The government argues that if the search warrant is found to be invalid, the good faith exception should apply. When an officer relies on a warrant issued by a neutral magistrate, the good faith rule should apply unless the "the underlying documents are 'devoid of factual support'" or the officer's reliance on the warrant was "wholly unwarranted." United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993). The good faith exception applies when "'an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope,' even though the search warrant was later deemed to be invalid." United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006) (quoting United States v. Leon, 468 U.S. 897, 920 (1984)). However, in Leon, the Supreme Court identified four exceptions to the good faith rule. The good faith rule does not prevent exclusion of evidence (1) "if the magistrate or judge issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;" (2) "where the magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979);" (3) in circumstances that "no reasonably well trained officer should rely on the warrant;" and (4) if a police officer relies on a warrant "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."Leon, 468 U.S. at 922-23.
Here, defendant argues that the first Leon exception should apply because the search warrant was issued on the basis of Officer Henderson's false statement. See id. However, Court need not reach the Leon exceptions to the good faith exception because there were no false statements in Officer Henderson's affidavit and, therefore, the search warrant was properly issued and properly executed.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dkt. # 13) is denied.