Opinion
CASE NO. CR11-5080RBL.
June 3, 2011
ORDER
THIS MATTER comes on before the above-entitled court upon Defendant's Motions to Suppress and for a Franks Hearing [Dkt. #26]. The defendant alleges that the affiant omitted material facts about the confidential informant's criminal history and incentives to testify in the affidavit in support of the search warrant entitling him to a hearing pursuant to Franks v. Delaware. Alternatively, the defendant seeks to suppress evidence obtained from his apartment pursuant to a search warrant that lacked probable cause. Having considered the entirety of the records and file herein, the Court finds and rules as follows:
In his motion the defendant speculated as to the identity of the confidential informant. He therefore sought an ex parte, in camera hearing pursuant to the procedure set forth in United States v. Kiser, 716 F.2d 1268, 1273 (9th Cir. 1983). In response to the motion, the Government confirmed the identity of the confidential informant and provided his criminal history. The Kiser protocol became unnecessary.
I. BACKGROUND
On September 29, 2010, law enforcement officers executed a search warrant at defendant's apartment in University Place, Washington. The search warrant was authorized by Pierce County Superior Court Judge James Orlando based on an Affidavit by Pierce County Deputy Sheriff Kory Shaffer. [Exhibit A to Defendant's Motion, Dkt. #26]. Inside the apartment, officers found the defendant, his girlfriend, and three young children. Uncovered in the search was a loaded .40 caliber handgun, loose .40 caliber ammunition, five prescription pill bottles in defendant's name for OxyContin and Oxycodone (four empty and one with 33 OxyContin pills remaining), small quantities of heroin and marijuana, and assorted drug paraphernalia. [Complaint, pp. 4-6, Dkt. #1]. The defendant was subsequently charged by way of a one-count Indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). The government further alleged that the defendant qualifies as an armed career criminal.II. DISCUSSION
A. Defendant Is Not Entitled to a Franks Hearing
The defendant argues that Deputy Shaffer's affidavit was deficient because it omitted three crucial facts about the confidential informant. First, the affidavit did not include the informant's criminal history. According to the defendant, the criminal history was significant and included felonies and crimes involving dishonesty. Second, the affidavit did not inform the issuing judge that the informant was facing a pending felony drug charge in Pierce County and that he was working as an informant in exchange for a favorable sentencing recommendation. And, third, the affiant omitted from the affidavit that the informant had been charged and pleaded guilty to misdemeanor domestic violence charges while working as an informant in apparent breach of his cooperation agreement with Pierce County Prosecutors.
According to defendant the above information so undermines the informant's reliability and credibility that including it in the affidavit destroys the finding of probable cause.
Probable cause is a "practical, common sense" determination that, in the totality of the circumstances, a judge can reasonably conclude that there is "a fair probability" that contraband or evidence of a crime will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). "The affidavit need only enable the judge to conclude that it would be reasonable to seek the evidence in the place indicated." United States v. Valencia, 24 F.3d 1106, 1109 (9th Cir. 1994).
The question to be answered at a Franks hearing is whether the affidavit contained deliberately or recklessly false statements without which probable cause would not have existed. Franks, 438 U.S. 154, 156 (1978). The five prong test which must be met in order for a defendant to be entitled to a Franks hearing is set out in Kiser, 716 F.2d at 1271 (citations omitted):
a. "[T]he defendant must make specific allegations that indicate the portions of the warrant claimed to be false";
b. "There must be a contention of deliberate falsehood or reckless disregard for the truth";
c. "The allegations must be accompanied by a detailed offer of proof, preferably in the form of affidavits";
d. "The offer of proof must challenge the veracity of the affiant, not that of his informant"; and
e. "[T]he challenged statements in the affidavit must be necessary to a finding of probable cause."
Omissions from an affidavit may also entitle a defendant to a Franks hearing if the defendant can make a substantial preliminary showing that (1) the affidavit contains intentional or reckless misleading omissions, and (2) the affidavit cannot support a finding of probable cause without the allegedly false information. United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir.), cert denied, 531 U.S. 1000 (2000). If inclusion of the omitted facts would not have affected the probable cause determination, no Franks hearing is required. Id.
The affidavit in support of the search warrant set forth the following facts:
An individual identified as "C/I #551" was cooperating with the Pierce County Sheriff's Department. The C/I made two controlled reliability buys where he was searched prior to the buys. No drugs or money were discovered. He was then given buy money. The C/I was surveilled to and from the buy location and returned drugs to the officers. Searched again, the officers found no drugs or money on the C/I.
The C/I identified "Mike" as a source of OxyContin. Based on the investigation, Deputy Shaffer identified "Mike" as Michael J. Polnett.
Within the 72 hours prior to presenting the search warrant, the C/I made a controlled buy of OxyContin from Mike. Prior to the buy, surveillance units observed Mike leave the University Place apartment [an object of the search warrant], get into his Mercedes SUV [also an object of the search warrant], and drive to the agreed location where he met the C/I. Mike was then followed back to his University Place apartment. Deputy Shaffer observed Mike's SUV parked in the same spot at the University Place apartment on numerous occasions at all times of the day and night.
Over the course of the investigation, the C/I purchased OxyContin from Mike in public parking lots throughout Pierce County. During the buys the C/I was constantly surveilled by the Pierce County Sheriff's Department Special Investigations Unit. During the buys Mike arrived in the Mercedes SUV.
The defendant asserts, as he must, that Deputy Shaffer intentionally or recklessly omitted the C/I's criminal history, incentives to cooperate, and breach of his cooperation agreement with the Prosecutor's Office. The Government counters that the omitted information was not included in the affidavit in order to protect the C/I's identity. [Response, Exh. 7, Dkt. #30]. Assuming for the sake of this motion that the defendant has made the requisite showing of intentional or reckless acts, he still must demonstrate that the omitted information was material to the determination of probable cause. See, e.g., Kiser, 716 F.2d at 1271.
See Reeves, 210 F.3d at 1046 (disapproving of police practice of excluding informants' relevant criminal history even to maintain confidentiality of informant).
Defendant argues that the C/I's criminal history was material, and when included in the affidavit, probable cause is lacking. The C/I's criminal history includes crimes involving dishonesty. The Ninth Circuit requires that when an affidavit omits an informant's criminal history which includes crimes of dishonesty, "additional evidence must be included in the affidavit `to bolster the informant's credibility or the reliability of the tip.'" United States v. Elliot, 322 F.2d 710, 716 (9th Cir. 2003), quoting Reeves, 210 F.3d at 1045. Relying on these cases and on United States v. Meling, 47 F.3d 1546 (9th Cir. 1995), the defendant argues that the omission of the C/I's criminal history is fatal to the finding of probable cause because no additional evidence of the C/I's credibility is included in the affidavit.
In Elliot, the search warrant affidavit was largely based on information from a confidential informant. The informant had visited a residence twice in the ten days prior to the search warrant application and saw scales and methamphetamine in the possession of the defendant and others, and had conversations with the defendant about the defendant's methamphetamine possession and sales. 322 F.3d at 713. The affidavit did not include the informant's conviction for forgery. The "additional evidence" in the affidavit the Court found to be sufficient to outweigh the concerns raised by the undisclosed criminal history was the informant's "record of providing six reliable drug-related tips in the preceding three months." Id., at 716.
In Reeves, the search warrant affidavit was based in part on information that an informant had observed methamphetamine packaged for sale at defendant's residence. 210 F.3d at 1043. The affidavit omitted the informant's prior charge of providing false information to a law enforcement officer. Id., at 1044. The "additional evidence" in the affidavit the Court found sufficient to outweigh the concerns raised by the undisclosed criminal history was that the "informant had previously provided truthful and reliable information to police that led to three other search warrants, narcotics arrests and convictions." Id., at 1045.
And, in Meling, a wiretap affidavit included information from a cooperating witness, the uncle of the defendant. "Among other things he told the FBI that [the defendant] had spoken to him on several occasions about wanting to get rid of his wife and described a recent telephone conversation in which [the defendant] admitted the poisonings." 47 F.3d at 1552. The affidavit omitted the cooperating witness' three convictions for forgery and fraud committed over ten years ago and attendant parole violations, a felony conviction one year prior to the wiretap application, and a history of mental illness. The affidavit also misrepresented the cooperating witness' motive in coming forward. Id., at 1553. The Court determined that other facts provided evidence of the cooperating witness' credibility including that the information was adverse to members of his own family and provided in the face of retaliation. Also, the fact, if not the content, of the conversations he divulged were corroborated by the FBI. Id., at 1555.
In all three cases, the Court of Appeals held that when added to the affidavits the informants' omitted criminal history involving dishonesty did not destroy probable cause.
In all three cases the information provided is of a distinctly different type than in the present case. The information was based on the observations of the informants, done at a time and in a manner where law enforcement was not present. An informant relating what he observed in a residence or recounting a conversation relies heavily on that informant's credibility. The instant situation involves not only information from the informant ("the C/I identified a male named Mike as a source of OxyContin") but also from law enforcement ("the C/I, while under constant surveillance of the Pierce County Sheriff's Department Special Investigations Unit, has made a controlled buy of OxyContin from Mike"). Despite defendant's arguments to the contrary, the C/I's credibility is enhanced by the method in which the buys occurred. The controlled buys procedure utilized both in the deal with the defendant and in the previous two reliability buys minimizes the concern over the C/I's criminal history involving dishonesty.
The C/I's crimes involving dishonesty occurred between 1991 and 1995. They included juvenile adjudications for residential burglary and taking a motor vehicle without permission in 1991, a juvenile adjudication for attempted first degree robbery in 1993, and a conviction for second degree possession of stolen property in 1995. As such, it is stale and thus not material. See Meling, 47 F.3d at 1555. To the extent the criminal history can be considered material, the "additional evidence" in the affidavit that the C/I had made two controlled reliable buys and the deal with the defendant was also done in a controlled manner sufficiently bolsters the C/I's credibility outweighing the concerns raised by the omitted criminal history. See Elliot, 322 F.3d at 716.
Deputy Shaffer did not include in the affidavit that the C/I was "working off" a 2009 felony drug conviction. As a result of that conviction he was facing 12+ to 20 months. In exchange for his work as a C/I, the Prosecutor's Office agreed to recommend a reduced sentence. The issuing judge was undoubtedly not misled by this omission. See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988). ("It would have to be a very naïve magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive. The magistrate would naturally have assumed that the informant was not a disinterested citizen."). Nor was the information material. See Meling, 47 F.3d at 1555 ("the fact that an informant has an ulterior or impure motive in coming forward to provide information to the police does not preclude a finding that the informant is nevertheless credible").
The affidavit omitted the C/I's recent misdemeanor conviction for domestic violence. It also did not disclose the apparent breach of the cooperation agreement between the C/I and the Prosecutor's Office. For the same reasons as stated in the challenge to the C/I's other criminal history, omission of this information was not material to the determination of probable cause.
The defendant has failed to make the substantial preliminary showing necessary to obtain a Franks hearing. The affidavit with the omitted facts added provides probable cause. B. The Affidavit Provided Probable Cause to Search the University Place Apartment .
The defendant argues that the affidavit did not provide a sufficient nexus between his alleged drug dealing out of his vehicle in public parking lots and his residence thus failing to establish probable cause to search the University Place apartment. The test for probable cause to search, as earlier stated, is whether in a practical, common-sense determination, it would be reasonable to search for evidence in the place indicated in the affidavit. Valencia, 24 F.3d at 1109; United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004).
The defendant is correct that the affidavit does not include the usual statement that in the law enforcement officer affiant's experience, drug dealers store evidence of their crime where they live. It is equally correct, however, that judges reviewing search warrant application are to use their common sense. Illinois v. Gates, 462 U.S. at 238. It has long been recognized by courts that "in the case of drug dealers, evidence is likely to be found where the dealers live." United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986); United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990); United States v. Gill, 58 F.3d 1414, 1418-19 (9th Cir. 1995).
Here, Deputy Shaffer included in the affidavit that surveillance was set up on the University Place apartment associated with the defendant. When the controlled buy was arranged, the surveillance officer observed the defendant leave the apartment, get into his SUV, and go to the agreed location where the defendant sold drugs to the C/I. The defendant was then followed back to his University Place apartment and was observed entering his unit. Deputy Shaffer also indicated that he had done some surveillance on the University Place apartment and observed the defendant's SUV parked in the stall assigned to the unit on multiple occasions at all times of the day and night.
In reviewing a challenge to a search warrant, this Court accords significant deference to the issuing judge. In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856 (9th Cir. 1991). The surveillance operations listed in the affidavit provided a sufficient basis for Judge Orlando to reasonably infer that the defendant lived at the University Place apartment. Judge Orlando was entitled to use his common sense and experience to conclude that it was reasonable to search for evidence of drug dealing at defendant's residence. Illinois v. Gates, 462 U.S. at 238 ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place").
Defendant's Motion to Suppress Evidence and for a Franks Hearing [Dkt. #26] is DENIED.
IT IS SO ORDERED.
The Clerk shall send uncertified copies of this order to all counsel of record, and to any party appearing pro se.