Opinion
No. CR00-0069.
June 25, 2001.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's February 21, 2001, motion to suppress (docket number 14) and his combined February 27, 2001, motion to suppress and to dismiss (docket number 19). The court held a hearing on these motions on June 21, 2001, at which the defendant was present and represented by Andy Dunn. The government was represented by Assistant United States Attorney C.J. Williams. The defendant's first motion to suppress presents a Franks v. Delaware challenge to a search warrant executed at the defendant's residence in April 1994. The combined motion to dismiss and suppress was withdrawn by the defendant at the hearing.
According to the two-page affidavit of Cedar Rapids Police Officer Douglas Larrison, this investigation began on April 22, 1994, with the execution of a search warrant at a residence in Waterloo, Iowa. When the police found marijuana, cash, and drug paraphernalia, a person present at that residence agreed to cooperate and told the police that the marijuana came from a James Richter at 2215 Kenrich Drive S.W. in Cedar Rapids, Iowa. This person told the police that he or she had purchased ten pounds of marijuana from a fifty-pound shipment that had arrived at Richter's residence in the past three days.
At the suggestion of the police, the cooperating individual then made a telephone call to James Richter to order ten more pounds of marijuana. Richter told the cooperating individual to pick up the marijuana at Richter's Kenrich Drive address before noon, April 23, 1994. When the cooperating individual called Richter on April 23, 1994, Richter explained that he was going to pick up the marijuana and that they should wait at Richter's residence. The police followed Richter who drove to 1733 33rd Avenue SW, the residence of Shawn McNamara. Richter went to the McNamara residence and left a short time later. Larrison did not describe law enforcement officers' ability to observe what went on at McNamara's residence but stated, "It is believed that Richter picked up the marijuana at this time from 1733 33rd Avenue SW."
According to Larrison, the police then followed Richter back to 2215 Kenrich Drive where he met the cooperating individual and an undercover officer. Richter told them to follow him to another location. They returned to 1733 33rd Avenue S.W. where the cooperating individual and a police officer purchased the marijuana. Specifically, Larrison stated, "They were observed by investigators returning to 1733 33rd Avenue SW, where the CI and undercover officer purchased ten pounds of marijuana from James Richter and Shawn McNamara outside the residence at 1733 33rd Avenue SW. The marijuana was in their car at that time." McNamara and Richter were then arrested and the residence at 1733 33rd Avenue S.W. was secured.
Larrison also details evidence that another informant told police that Richter receives large shipments of marijuana that come from Mexico through Arizona. This second confidential informant also stated that Shawn McNamara is involved in the distribution of these shipments of marijuana.
The defendant contends that the affidavit contains five false or misleading statements. The first statement claimed to be false is the sentence, "It is believed that Richter picked up the marijuana at this time from 1733 33rd Avenue SW." A surveillance report indicated that Richter arrived at Shawn McNamara's residence at 11:45 a.m., April 23, 1994. It further indicates that he left that residence at 11:50 a.m. There is no indication that the police observed Richter retrieve a ten-pound package from McNamara's residence and there is no explanation in the report or the affidavit as to why they were unable to do so. From this, the defendant contends that it is false or misleading to claim that Richter picked up the marijuana at that time.
The affidavit and the surveillance reports upon which the affidavit is based clearly show that when the informant arrived to pick up the marijuana, Richter told the informant that Richter had to go pick it up. Richter then proceeded immediately to McNamara's residence, stayed only five minutes, drove back to the informant and ultimately delivered ten pounds of marijuana. From these facts, it is an appropriate conclusion to draw based on circumstantial evidence that Richter went to McNamara's residence to pick up the marijuana.
The second statement that the defendant contends is false is that, "The CI and undercover officer purchased ten pounds of marijuana from James Richter and Shawn McNamara outside the residence at 1733 33rd Avenue SE." The defendant claims it is false because he is not alleged to have said anything at all when the marijuana was delivered. This statement in the affidavit is based upon the same circumstantial evidence set forth above, together with the fact that defendant Shawn McNamara came out of the house and was present during the actual delivery of the ten pounds of marijuana. The court believes that the affiant had a good faith belief in the truth of this statement.
The third claimed false statement refers to the location at the time of the delivery. Officer Larrison stated, "The marijuana was in their car at that time." The marijuana was in Richter's car. Shawn McNamara did not have joint ownership of the car and was not a driver or passenger of the car at any time material to the events at issue. The government offers no excuse for this error and simply claims that it was a mistake. The court assumes for the sake of argument that this is a false statement made with reckless disregard for the truth. However, the ownership of the vehicle in question is not important to the determination of probable cause for the search of the defendant's residence. Thus, although the statement is false, it is not grounds for suppression.
Finally, Officer Larrison described the confidential informants as concerned citizens of truthful reputation with no motivation to falsify the information they provided. With respect to informant number 1, Larrison stated that he knew him less than one year, that he had supplied information previous to this occasion and it led to the making of two arrests for delivery of a controlled substances. Informant number two had supplied information in the past on three occasions. He had not given false information in the past and the information had been corroborated by law enforcement personnel.
The defendant contends that discovery materials show that these informants were assisting police in an effort to reduce the consequences of their own illegal behavior. However, the affidavit shows that the information provided by these informants had been at least partially corroborated by law enforcement officials. Further, it is extremely unlikely that a judge could be deceived into believing that a typical informant in a drug investigation would somehow be a person of great moral character. The cases set forth in the conclusions of law below show that matters pertaining to the credibility of informants are not vital to the finding of probable cause where the information provided by informants is at least partially corroborated by law enforcement officers.
CONCLUSIONS OF LAW
In order to prevail on a challenge to a warrant affidavit pursuant toFranks v. Delaware, 438 U.S. 154 (1978), the challenger must show (1) that a false statement knowingly and intentionally or with reckless disregard for the truth, was included in the affidavit and (2) that the affidavit's remaining content is insufficient to establish probable cause. United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995).
To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must 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. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they 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.Franks v. Delaware, supra, at 171.
Further, in order to mandate a hearing, the challenged statements in the affidavit must be necessary to a finding of probable cause. United States v. Flagg, 919 F.2d 499 (8th Cir. 1990). United States v. Streeter, 907 F.2d 781, 788 (8th Cir. 1990) (contested material must be "vital" to probable cause). It must also be remembered that although the affidavit must contain statements that are truthful,
This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct. For probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that some times must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true.Franks v. Delaware, supra, at 165.
Omissions of facts are not misrepresentations unless they cast doubt on the existence of probable cause. United States v. Parker, 836 F.2d 1080, 1083 (8th Cir. 1987). The same analytical process used to determine whether an affidavit contains a material falsehood is used to determine whether an omission will vitiate a warrant affidavit under Franks. United States v. Lueth, 807 F.2d 719, 726 (8th Cir. 1986). The defendant must show that (1) the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading, and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause. With respect to the second element, suppression is warranted only if the affidavit as supplemented by the omitted material could not have supported the existence of probable cause. Lueth, supra, at 726.
For example, the fact that an informant had a criminal record and was cooperating under a plea agreement is not critical to the finding of probable cause. Flagg, supra; United States v. Martin, 866 F.2d 972 (8th Cir. 1989) (omission of fact of informant's drug addiction of no consequence to determination of probable cause). The fact that the police omitted information that an informant had been a drug dealer, was cooperating with the police in order to receive leniency, and was being paid by the police did not warrant relief in United States v. Wold, 979 F.2d 632 (8th Cir. 1992). See also United States v. Reivich, 793 F.2d 957 (8th Cir. 1986). It is not necessary to notify the magistrate of an informant's criminal history if the informant's information is at least partially corroborated. United States v. Parker,supra. Similarly, it was not misleading, as a matter of law, to omit the fact that the informant was the defendant's sister. United States v. Johnson, 925 F.2d 1115 (8th Cir. 1991).
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's February 21, 2001, motion to suppress (docket number 14) and his combined February 27, 2001, motion to suppress and to dismiss (docket number 19) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
June, 2001.
_______________________________ JOHN A. JARVEY Magistrate Judge UNITED STATES DISTRICT COURT