U.S. v. Davis

Full title: UNITED STATES OF AMERICA, Plaintiff, v. DON WAYNE DAVIS, Defendant

Court: United States District Court, D. Colorado

Date published: Feb 24, 2006

Criminal Case No. 03-CR-00011-B (D. Colo. Feb. 24, 2006)

Opinion

Criminal Case No. 03-CR-00011-B.

February 24, 2006

ORDER

LEWIS BABCOCK, Chief District Judge

The defendant, Don Wayne Davis, has filed a motion to suppress evidence obtained during a February 22, 2002 search of his residence pursuant to a February 17, 2002 search warrant. He challenges the sufficiency of disclosures made by the affiant officer, Detective Mike Abromowich, who applied for the warrant. Mr. Davis has tendered documentary evidence demonstrating that the informant named in the affidavit, Billie Jean Elrod, has been charged and, in some cases, convicted of numerous crimes of dishonesty, including fraud, making false reports, forgery, and impersonation. Ms. Elrod's criminal history also discloses numerous other felony charges and convictions. This information was not included in Detective Abromowich's warrant affidavit. Mr. Davis has also included police reports of an unsuccessful attempt by police to purchase narcotics from his brother, which persisted over the course of several days. That incident also did not appear in the affidavit.

The purportedly omitted information was clearly critical to a finding of probable cause. DeLoach v. Bevers, 922 F.2d 618, 622 (10^th Cir. 1990), cert. denied sub nom. Welsh v. DeLoach, 502 U.S. 814, 112 S. Ct. 65, 116 L. Ed. 2d 41 (1991). Ms. Elrod's criminal history is a matter of public record and readily available. The investigation into Mr. Davis' brother is a matter with which Detective Abromowich might reasonably have been familiar and of which, in any event, he might have learned with some effort. I therefore find and conclude that Mr. Davis has made a substantial, preliminary showing that the affidavit contains intentional or reckless, material omissions, and that the affidavit, with the omitted information included, would not be sufficient to support a finding of probable cause. United States v. McKissick, 204 F.3d 1282, 1297 (10^th Cir. 2000). I am required to hold an evidentiary hearing to resolve the veracity of the affidavit.

Accordingly it is ORDERED that an evidentiary hearing shall occur on Thursday, March 23, 2006 at 1:30 P.M.