Opinion
Criminal No. 03-24 (JRT/FLN)
April 17, 2003
Ann Anaya, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Joseph Kaminsky, KAMINSKY LAW OFFICE, Brooklyn Center, MN, for defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Defendant Curtis Lee Davis is charged with possession with intent to distribute in excess of 50 grams of a mixture or substance containing a detectable amount of cocaine base. Davis moved to suppress evidence obtained as a result of search and seizure and for return of seized property. Magistrate Judge Franklin L. Noel recommended, in a Report and Recommendation dated March 14, 2003, that defendant's motions be denied. The Court has conducted a de novo review of defendant's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and denies defendant's motions.
The Magistrate Judge also recommends that defendant's motions to dismiss indictment or in the alternative to abstain be denied. There being no objection to these portions of the Report and Recommendation, the Court adopts them and denies the motions.
Background
Officer Peter Rud, of the Minneapolis Police Department Narcotics Unit, was investigating defendant in December 2002. A confidential reliable informant (CRI) was involved in this investigation. The CRI told Rud that defendant had been selling quantities of cocaine from the upper unit of 2520 — 23rd Avenue, and that the CRI had seen defendant handling quantities of crack cocaine. At Rud's direction and under his supervision, the CRI performed two "controlled buys" at 2520 — 23rd Avenue North in Minneapolis.
Rud applied for a search warrant on December 2, 2002, in which he described the above information, and additional information about how the controlled buys were conducted. Specifically, he averred that "Within the past ninety-six hours, I used the CRI mentioned above in an effort to make a controlled buy of crack cocaine." He also averred, "Within the past seventy-two hours, I used the same CRI to make another controlled buy." Based on these representations, which are not disputed, the search warrant was issued. However, the warrant was never executed, and was allowed to expire. Rud explained at the suppression hearing that the warrant was not executed for several reasons, including a manpower shortage, and because Rud wanted to execute the warrant at a time when defendant was at the address. Rud testified that the suspected quantity of drugs at the address fluctuated, and that he wanted to execute the warrant when the quantity was at a relatively higher point.
The investigation of defendant continued, and the CRI performed another controlled buy, again with Rud's direction and supervision. After this third controlled buy, Rud applied for another search warrant. This January 2, 2003 application was made to a different judge, and Rud did not inform the new judge that a previous warrant had been issued but not executed. Rud also included in this second application information about the first two controlled buys. Rud did not, however, accurately report the timing of the first two buys. Instead, he simply repeated the references to "[w]ithin the past ninety-six" and "[w]ithin the past seventy-two hours." Rud admitted that the information about the timing of the first two controlled buys was incorrect. He attributed the error to an oversight on his part, and explained that "I went back to my disk and the affidavit that was on it, and basically added the third controlled buy. And I failed to make time frame corrections in the second affidavit." Transcript at 13-14.
Transcript refers to the 32-page transcript of the Pretrial Motions heard by Magistrate Judge Noel on February 19, 2003 at 9 a.m. [Docket No. 31].
Defendant moved to suppress the evidence seized during the execution of the second warrant, and for the return of the seized property, arguing that the warrant was obtained in violation of the law announced in Franks v. Delaware, 438 U.S. 154 (1978). The Magistrate Judge concluded that the two statements related to the first two controlled buys were made with reckless disregard for the truth, but that suppression was not warranted because there was probable cause to issue the warrant even if all references to the first two buys were excised.
Defendant objects to this conclusion, and argues that the Magistrate Judge should have excised reference to all three controlled buys before undertaking the probable cause analysis. Defendant also urges the Court to consider United States v. Reivich, 793 F.2d 957, 960-64 (8th Cir. 1986), a case discussing the extension of Franks to allow challenges to affidavits based on alleged deliberate omissions of material facts. The Court assumes that reference to this case indicates that defendant believes that the second affidavit deliberately omitted material facts. Although defendant does not specify which material facts were omitted, the Court surmises that defendant is referring to the failure to execute the December 2, 2002 search warrant.
ANALYSIS
A search warrant may be invalid if the issuing judge based the probable cause determination on an affidavit containing false information that was supplied knowingly and intentionally or with reckless disregarded the truth. Franks, 438 U.S. at 155-56; United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001). To prevail on such a claim, defendant must show by a preponderance of evidence that: (1) the affidavit contained a false statement made knowingly and intentionally, or with reckless disregard for the truth; and (2) the affidavit's remaining content is insufficient to establish probable cause. Franks, 438 U.S. at 156; Reinholz, 245 F.3d at 774. The same standard applies to omissions of fact, for which defendant must show that: (1) facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. Id. See also United States v. Clapp, 46 F.3d 795, 799 (8th Cir. 1995). A court can infer recklessness from the omission of facts, but only if the omitted facts would have been "clearly critical" to the finding of probable cause. United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993); United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).
The Magistrate Judge concluded, and this Court agrees, that the failure to update the references to "ninety-six" and "seventy-two" hours constitutes a reckless disregard for the truth. The Court assumes for further analysis that the omission of information about the first warrant also satisfies the first prong of the Franks inquiry. The next step, therefore is to "excise the offensive language from the affidavit and determine whether the remaining portion would have established the necessary probable cause." United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002). As for the material omissions, the Court must "determine whether . . . supplemented with the omitted material, the affidavit's remaining contents are sufficient to establish probable cause." Clapp, 46 F.3d at 799 (citing Franks, 438 U.S. at 156). "If the affidavit would have sufficiently provided probable cause without the false information, the warrant d[oes] not violate the Fourth Amendment and the evidence should not [be] excluded." Cavazos, 288 F.3d at 710.
The Court must therefore excise reference to the first two controlled buys. The Court does not find it appropriate to omit reference to the third buy. There is no reason to redact truthful and accurate information, and defendant does not suggest that the controlled buy did not occur or that the reported results of the buy are inaccurate. The Court also supplements the affidavit with information about the failure to execute the first warrant.
The affidavit, in its fully redacted and supplemented form, contains the following information: The testifying officer had been in contact with a CRI who provided information regarding narcotics trafficking at the specified address. The CRI performed a controlled buy within forty-eight hours. A previous search of the apartment revealed trace amounts of cocaine. The testifying officer let an early warrant expire without executing the warrant, due to manpower shortages and tactical reasons. The CRI has personally seen Curtis Davis handling large amounts of crack cocaine.
The Court finds that this information is sufficient to satisfy the probable cause inquiry. "Probable cause exists when a practical, common-sense evaluation of the facts and circumstances shows a fair probability that contraband or other evidence will be found in the asserted location." United States v. Adams, 110 F.3d 31, 33 (8th Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). In this case, the controlled buy, and the earlier trace amounts of cocaine provide a factual basis to support the CRI's assertion that drugs would be found in the apartment. The affidavit contained adequate information to show that a fair probability of contraband or other evidence would be found at the apartment.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant's objections [Docket No. 29] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 26]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motions to suppress evidence obtained as a result of search and seizure [Docket Nos. 12 and 18] are DENIED,
2. Defendant's motion for return of property seized [Docket No. 19] is DENIED.
3. Defendant's motions to dismiss indictment or in the alternative to abstain [Docket Nos. 11 and 17] are DENIED.