Opinion
Case No. 99-CR-83 W.
February 17, 2000
REPORT RECOMMENDATION
The defendant, Jack D. McKnight, has made a "motion to suppress" (File Entry #38) alleging that on 18 February 1999, "Korey Newbold, an affiant, secured a warrant from West Valley City District Court Judge Ann Boyden. The due process and accord was not sufficient." No further facts are alleged. In a second paragraph, the defendant's motion alleged the "DEA and agents of the West Valley Police Department did break and enter into the premises of defendant, Jack McKnight." It is alleged the officers "detained" the defendant in violation of the Fourth Amendment." No facts were presented with the motion. The warrant is not identified as either an arrest or search warrant.
Defendant alleged a violation of the Utah Constitution, however that is not a basis for exclusion in this court. United States v. Dickerson, 195 F.3d 1183, 1187 (10th Cir. 1999), United States v. Le,173 F.3d 1258, 1264 (10th Cir. 1999).
The motion of defendant was not accompanied by an affidavit as required by the procedure set for challenging a warrant in Franks v. Delaware, 438 U.S. 154, 155-56, 171 (1978). There is nothing indicating either false information in support of a warrant or any other material omission that is in compliance with Franks. See discussion in Taylor v. Meacham, 82 F.3d 1556 (10th Cir. 1996); Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996). Franks is applicable to arrest warrants as well as search warrants. Id.; Krohn v. United States, 742 F.2d 24,31 (1st Cir. 1984). Therefore, defendant did not meet the prerequisite for collateral attack on either an arrest warrant or a search warrant. The warrant is otherwise presumed valid. Franks, supra, p. 171.
In addition, defendant's motion does not comply with DUCrimR12-1 in that the specific grounds are not set forth for the relief sought (DUCrimR12-1(b) incorporates DUCivR 7-1(a)). Also, the evidence sought to be suppressed is not identified, if that was defendant's purpose. How "due process "relates to the issuance of the warrant is not identified nor what due process violation occurred. Normally, warrants are governed by Fourth Amendment standards, not due process. Stanford v. Texas, 379 U.S. 476 (1965); Whiteley v. Warden, 401 U.S. 560 (1971); Shadwick v. City of Tampa, 407 U.S. 345 (1972); Wayne R. LaFave, Search and Seizure, 3d Ed. § 5.1(g) (1996).
The defendant did not advise this court, in his motion to suppress, why the entry by officers into defendant's premises violated the Fourth Amendment.
However, the matter was referred to the magistrate judge under 28 U.S.C. § to 636(b)(1)(B). A hearing was held on the defendant's motion to suppress. This report and recommendation is submitted pursuant to the reference on the defendant Jack D. McKnight's motion to suppress.
EVIDENCE
At the hearing on the motion to suppress, the court indicated that because the defendant was challenging the issuance and execution of the warrant, the defendant had the burden of proof. United States v. Carhee, 27 F.3d 1493 (10th Cir. 1990).
The government introduced a search warrant and affidavit for a search warrant (Exhibits 1-A and 1-B). Officer Kory Newbold, who executed the search warrant, was called as a witness (TR. p. 5). The search warrant which the government introduced was based on an affidavit of Officer Newbold and was issued on February 8, 1999 by Judge Paul G. Maughan, Third District Court, State of Utah. No warrant was issued by Judge Ann Boyden, as alleged in defendant's motion. The warrant was executed on February 18, 1999 (TR. pp. 6-7) at defendant's home (TR. p. 7).
Officer Newbold obtained a search warrant through the services of the Salt Lake County District Attorney's Office (TR. p. 8). Newbold was present when the warrant was issued by Judge Maughan (TR. p. 9). The warrant was based on information provided by a reliable informant (Id.). The warrant was then approved for execution by the West Valley City Police Department, Division Commander.
Defendant presented no additional evidence on the execution of the warrant or the circumstances as to its issuance.
Based on the above evidence the court enters the following:
FINDINGS OF FACT
1. On February 8, 1999, Officer Kory Newbold of the West Valley Police Department obtained a search warrant for the residence of defendant Jack D. McKnight in Kearns, Utah. The warrant was based on information provided by reliable informants and was to search the premises for narcotics. Officer Newbold used the services of the Salt Lake County District Attorney's Office to assist in obtaining the search warrant.
2. The search warrant was based on the affidavit of Officer Newbold and was issued by Utah Third District Judge Paul Maughn. The warrant was then authorized or execution by the West Valley City Police Department and was executed on February 18, 1999 at defendant's residence.
3. There is no evidence that the warrant process by which the search warrant for defendant's residence was issued other than in conformity with Fourth Amendment standards. Defendant has not shown that the warrant was not proper on its face, was improperly issued, or that it was executed in an illegal manner.
4. No evidence of the issuance and execution of an arrest warrant has been presented by defendant. No evidence has been presented by defendant as to an impropriety or illegality with regard to the warrant or its execution. No evidence has been presented as to the manner of execution of the search warrant on February 18, 1999 or about the arrest of defendant.
DISCUSSION
The defendant's motion to suppress claimed the issuance of a warrant and that its issuance was illegal. No evidence of any kind supports that contention. Defendant did not comply with Franks v. Delaware, supra, in order to collaterally attack the warrant. The search warrant, valid on its face, was obtained by police from a Utah State judge to search defendant's premises. The evidence shows the warrant and supporting affidavit of Officer Newbold are proper and the warrant was validly issued. There is no merit to defendant's contention that any warrant issued in this case was defective. Defendant has not carried his burden of proof to support his motion.
The defendant claimed the entry into his home was illegal. There is no evidence of entry except that pursuant to lawful search warrant which operates to validate the entry and search. Steagald v. United States, 451 U.S. 204 (1981). Detention of defendant during the search would be lawful. Michigan v. Summers, 452 U.S. 692 (1981). If during the search, evidence establishing probable cause to arrest was uncovered, defendant could be arrested. In this instance, the record is devoid of evidence to support the motion to suppress. Defendant's memorandum does not address the issues raised in the motion to suppress and is essentially a general effort to challenge the credibility of the informant and the information on which the warrant was based. The memoranda filed by defendant are not evidence. The defendant has shown no basis for a motion to suppress.
CONCLUSION
Defendant's motion to suppress is without merit and should be denied.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.