Opinion
Case No. 01-CR-348 ST
May 12, 2003
ORDER GRANTING IN PART DEFENDANT'S MOTION TO SUPPRESS
INTRODUCTION
This matter is before the court on Defendant's Motion to Suppress evidence discovered in a search of his person and a vehicle. In a seven-count Superceding Indictment, Defendant is charged with possession of ecstasy with intent to distribute, possession of Ketamine with intent to distribute, using or carrying a firearm during and in relation to a drug trafficking crime, distribution of Ecstacy and aiding and abetting. The court will grant the Motion as to the evidence from the Ford Expedition and deny as to the evidence found on his person.
PROCEDURAL BACKGROUND
This Motion was continued several times due to discovery difficulties. It was eventually set for an evidentiary hearing. However, at that hearing, the parties instead requested that the Motion be submitted on stipulated facts. The court set a schedule for the filing of a stipulation of facts and a briefing schedule. The parties failed to timely file the stipulated facts and briefs. The court rescheduled briefing and directed that it would consider this matter submitted after the new April 11, 2003, deadline for filing a reply memorandum. Defendant did not choose to file a reply memorandum, and the court considers the matter submitted.
STIPULATED FACTS
The following stipulated fact are repeated below in exactly the same form as provide by the parties:
1. On June 7, 2001, at approximately 11:00 p.m., the West Valley City SWAT team and the Salt Lake City Narcotics squad served a search warrant at 1105 East 6720 South #3 in Salt Lake County, Utah.
2. On June 7, 2001, at approximately 10:55 p.m., defendant Christopher Wright arrived at and entered the same apartment. Mr. Wright was driving a black Ford Expedition with Utah License 731XMH.
3. Mr. Wright was detained by the officers when the warrant was executed at about 11:00 p.m.
4. Mr. Wright did not reside at 1105 East 6720 South #3 in Salt Lake County, Utah. Neither he nor his vehicle were the subject of the search warrant for 1105 East 6720 South #3.
5. Mr. Wright was asked for consent to search the black Ford Expedition. He declined to give such consent. The request was made more than once.
6. Mr. Wright asked several times to be permitted to leave. Each time, the officers refused to allow him to leave.
7. Mr. Wright asked for permission to telephone an attorney and attempted to contact one on his personal cell phone. The officers refused to allow him to make such a call and seized his telephone from him.
8. Detective Troy Anderson of the Salt Lake City Police Department states that on June 7, 2001, at some time between 11:00 and 11:36 p.m., he was told by an officer from the West Valley Police Department named Jeff Bridge that "he had had dealings with Mr. Wright in the past." The nature of those alleged dealings is set forth in Ex. No. 1 to the Stipulation of Facts, a series of D.E.A. reports.
9. The report of Officer Bridge from that evening makes no reference to a conversation with Detective Anderson.
10. At approximately 2:23 a.m., on June 8, 2001, Detective Anderson applied for a telephonic search warrant to search Mr. Wright's vehicle. The application was recorded.
11. Copies of the Telephonic Search Warrant Affidavit (the Affidavit) and Telephonic Search Warrant (Warrant) are attached to the Stipulation of Facts as Exs. Nos. 3 and 4.
12. Before the judge authorized the execution of the search warrant affidavit, he asked Detective Anderson "Let me ask you a question, but do you think there would be anything in the car? The vehicle?" Deputy Anderson, "Uh well earlier today the uh um confidential informant earlier assisted the DEA and did a controlled buy out of the vehicle um that was, that was actually within the last um probably 12 hours." The judge then asked, "And then, the person that, person still in the vehicle and retrieved stuff from the vehicle?" Anderson replied, "That's correct."
13. Before the judge authorized his signature being affixed to the warrant, he stated, "Note, though, so that on the affidavit for the search warrant that you have the information that the confidential informant (CI) received the uh . . . the from ah . . . suspect while in the vehicle. And he retrieved the drugs from the vehicle." Anderson replied, "Okay."
14. The confidential informant never said that Mr. Wright had drugs in the his vehicle.
15. No sale occurred while Mr. Wright was in his vehicle.
16. No evidence exists that Mr. Wright "retrieved" drugs from his vehicle.
17. Officer Bridge never told Detective Anderson that the informant said there were drugs in the vehicle, that a sale had occurred in the vehicle, or that Wright had retrieved drugs from the vehicle.
18. A search of the Ford Expedition began some time prior to 4:18 am. That search produced quantities of Ketamine, Ecstasy, and a loaded handgun. Ketamine and Ecstasy are controlled substances.
19. The results of the search caused Anderson to seek a second warrant for a hotel room, room 301, at the Fairfield Inn, 594 West 4500 South, Murray, Utah. The government does not seek to introduce the products of the hotel room search in this case.
20. Mr. Wright was booked into jail at 6:56 a.m. on June 8, 2001.
ANALYSIS
1. Parties' Positions
Defendant moves to suppress evidence discovered in the search of his person and vehicle because he contends that the Affidavit in support of the warrant lacks probable cause. He asserts that the Affidavit does not contain sufficient facts to establish the CI's veracity and basis of knowledge or provide corroboration of the CI's allegations to allow the magistrate to credit the CI's statements. Defendant also contends that the information in the Affidavit was stale, that Mr. Wrights' mere presence at the scene of the execution of another search warrant was insufficient probable cause to search his person or his vehicle, and that the omissions and misstatements in the Affidavit are material and require suppression under Franks v. Delaware, 438 U.S. 154 (1978). Defendant concedes his earlier contention that the officers failed to comply with the requirements for a telephonic search warrant under Utah law. Utah Code Ann. § 77-23-204.
The government contends that the Affidavit provided sufficient probable cause, that the false statements were negligent or an innocent mistake, that the Leon good faith exception should apply, and that even if the false statements are redacted, that the Affidavit still provides probable cause to support a search warrant.
2. Case Law
Th[e] Court reviews the sufficiency of the affidavit upon which a warrant is issued by looking at the totality of the circumstances and simply ensuring "that the magistrate had a substantial basis for concluding that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Probable cause means that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238. "[T]he defendant bears the burden of `proving a factual nexus' between the Fourth Amendment violation and the seizure of the evidence sought to be suppressed." United States v. King, 222 F.3d 1280, 1285-86 (10th Cir. 2000).
* * *
Keeping in mind that the burden is on the defendant to prove that the challenged seizure was illegal under the Fourth Amendment, the ultimate determination of reasonableness under the Fourth Amendment is a question of law. . . . United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999).U.S. v. Tisdale, 248 F.3d at 970.
In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court held that the Fourth Amendment's exclusionary rule should not bar the use of evidence obtained by police officers acting in good faith and with reasonable reliance on a facially valid search warrant. Id. at 919-20. "[W]hen reviewing an officer's reliance upon a warrant, we must determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient." United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993). "Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n. 23. "In making this determination, we consider `all of the circumstances,' and assume the executing officers have `a reasonable knowledge of what the law prohibits.'" Rowland, 145 F.3d at 1207, quoting Leon, 468 U.S. at 919 n. 20. As we have recently explained:
The Supreme Court recognizes four situations in which an officer would not have reasonable grounds for believing a warrant was properly issued. See Leon, 468 U.S. at 922-23. In these situations, the good-faith exception to the exclusionary rule would not apply. See id. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his "reckless disregard of the truth." Id. at 923. Second, the exception does not apply when the "issuing magistrate wholly abandon[s her] judicial role." Id. Third, the good-faith exception does not apply when the affidavit in support of the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid. See Id.U.S. v. Tisdale, 248 F.3d 964, 972 (10th Cir. 2001) (internal citations partially omitted and quoting United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000)).
"Under Franks, a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks, 438 U.S. at 155-56). "The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). If, after considering the evidence presented at a Franks hearing, the district court concludes by a preponderance of the evidence that the affidavit contains "intentional or reckless false statements," Kennedy, 131 F.3d at 1376, or "material omissions," McKissick, 204 F.3d at 1297, "then the district court must suppress the evidence obtained pursuant to the warrant." Id. If, however, the district court concludes that the omitted information would not have altered the magistrate judge's decision to authorize the search, then the fruits of the challenged search need not be suppressed. Id. at 1297-98; Kennedy, 131 F.3d at 1376.U.S. v. Avery, 295 F.3d 1158, 1166-67 (10th Cir. 2002).
"Allegations of negligence or innocent mistake, however, are insufficient" to meet the standard of Franks. U.S. v. Tuter, 240 F.3d 1292, 1298 (10th Cir. 2001). The defendant bears "the burden to demonstrate the Affidavit's falsity and reckless disregard for the truth by a preponderance of the evidence." U.S. v. Tisdale, 248 F.3d at 973.
"It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention." Tuter, 240 F.3d at 1298 (quoting Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964) overruled on other grounds).
3. Search of Defendant's Person
The court finds that the Affidavit and Warrant established sufficient probable cause for the search of Defendant's person. The Affidavit states that Defendant sold drugs to a CI approximately 8 hours earlier. This information was not stale. The Affidavit explains Detective Anderson's experience and training and states that pursuant to his "training and experience . . . persons who have narcotic distribution operations will often conceal controlled substances and proceeds from drug sales on their persons" Ex. 3 (Telephonic Search Warrant Affidavit) at 3.
Defendant contends that the Affidavit does not contain sufficient facts to establish the confidential informant's veracity and basis of knowledge or provide corroboration of the informant's allegations to allow the issuing judge to credit the CI's statements. The court notes that the Ci's information relied upon in the Affidavit was not predictive and was not a tip. The Affidavit recites the independent evidence corroborating the CI's statement that Defendant sold him ecstacy. The Affidavit explains that it was a controlled buy and the circumstances of that controlled buy — the CI was searched before the buy, and was given recorded currency, was under surveillance the entire time. Ex. 3 at 2-3. This independent corroboration of the information that Defendant had sold controlled substances to the CI, together with the information set forth from the Detective's experience and training support probable cause to search his person for the controlled substances and/or proceeds from drug sales less than 12 hours later. U.S. v. Danhauser, 229 F.3d 1002, 1006 (10th Cir. 2000) ("when there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant.").
The Affidavit contains information sufficient to establish probable cause to search Defendant's person without consideration of any of any of Detective Anderson's misstatements. Therefore, the Franks issue is not applicable to that search. The court will deny the Motion to Suppress the evidence found pursuant to the search of Defendant's person.
4. Search of Defendant's Vehicle
Defendant contends that evidence discovered in the search of the Ford Expedition must be suppressed under Franks. Ordinarily, once a defendant makes his showing of material misstatements in the Affidavit, the court would hold a hearing on the Franks issue to determine the veracity of the statements. However, in this case, the government has submitted the entire matter on stipulated facts. The government stipulates that the Affidavit contains three false statements, that the issuing judge questioned Detective Anderson on the subjects covered by the false statements, and issued the Warrant upon the express requirement of inclusion of the information contained in the statements. The court finds that the statements are material and that the issuing judge would not have issued the Warrant absent the misstatements.
Reviewing the record, the court must find that Defendant has met his burden of showing that the statements were false and were made recklessly. Where the issuing judge asked specifically about the issues covered by the misstatements and expressly required that the information be included in the warrant, the court must find and conclude that Detective Anderson was reckless in misstating those facts. See Stipulated Fact No. 17.
The court has reviewed the Affidavit to determine if, when the misstatements are deleted, it contains probable cause to search the vehicle. Without the misstatements, the Affidavit shows that Defendant participated in a controlled buy within 12 hours of the issuance of the Warrant, that he arrived at the controlled buy in a vehicle, that he was subsequently discovered at an apartment where he did not reside where a search warrant was being executed and controlled substances were found, and that he had arrived at the apartment in the same vehicle he had driven to the location of the controlled buy. However, there is no link between the vehicle and controlled substances to show that there "is a fair probability that contraband or evidence of a crime will be found in [that] particular place." U.S. v. Tisdale, 248 F.3d at 970. It was this necessary link that the issuing judge was inquiring about when he asked if the sale was made while Defendant was in the vehicle or if substances were retrieved from the vehicle. Unlike the situation with the request to search Defendant's person, the Detective provides no information regarding his experience and training and a practice of concealing controlled substances or proceeds in vehicles.
The government contends that the information that Defendant intended to remain in the area for several more days and would have additional drugs available for purchase provided probable cause to search the vehicle that he was driving around the area. While that may or may not be the case, the government does not cite to where in the record there is a showing that such information was ever brought to the attention of the issuing judge. See Tuter, 240 F.3d at 1298 ("in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention").
The government also contends that the Leon good faith exception applies. However, the good-faith exception to the exclusionary rule does not apply "if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth." Tisdale, 248 F.3d at 972.
The parties stipulated that Detective Anderson was not told by the officer involved in the controlled buy that "there were drugs in the vehicle, that a sale had occurred in the vehicle, or that [Defendant] had retrieved drugs from the vehicle." Stip. Fact No. 17. Where he was not told such facts and was expressly asked about them by the issuing judge, the court must find that Detective Anderson would have known the information was false if not for his reckless disregard of the truth. Therefore, the circumstances of this case fit within the first exception to the Leon good faith rule and Leon is therefore not applicable here.
The court having found that the Affidavit lacks probable cause to search the Ford Expedition, and that the Leon good faith exception is not applicable to the circumstances of this case, the court will grant Defendant's Motion to Suppress the evidence discovered in the search of the Ford Expedition.
CONCLUSION
Based on the foregoing it is therefore
ORDERED that Defendant's Motion to Suppress is GRANTED, in part. It is further
ORDERED that the evidence obtained from the Ford Expedition with the license 731 XMH, shall be suppressed. It is further
ORDERED that the Motion to Suppress is otherwise DENIED and the evidence obtained from the search of Defendant's person will not be suppressed.