U.S. v. Castillo

• Decision Date: 19 April 2002
• Docket Number: No. 01-1010.,01-1010.
• Citation: 287 F.3d 21
• Parties: UNITED STATES, Appellee, v. Jose M. CASTILLO, a/k/a Richard Lara, a/k/a Daniel, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

287 F.3d 21

UNITED STATES, Appellee, v. Jose M. CASTILLO, a/k/a Richard Lara, a/k/a Daniel, Defendant, Appellant.

No. 01-1010.

United States Court of Appeals, First Circuit.

Heard November 6, 2001.

Decided April 19, 2002.

COPYRIGHT MATERIAL OMITTED

Robert F. Muse for appellant.

William D. Weinreb, Assistant United States Attorney, with whom James B. Farmer, United States Attorney, and Rachel E. Hershfang, Assistant United States Attorney, were on brief for appellee.

Before SELYA and LIPEZ, Circuit Judges, and SINGAL, District Judge.^*

LIPEZ, Circuit Judge.

Defendant-Appellant José Castillo appeals from the district court's denial of his request for a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Castillo alleges and hopes to establish that the magistrate judge relied on an affidavit that omitted facts material to a probable cause determination underlying the issuance of a search warrant. Disagreeing with that contention, we affirm.

I

On May 25, 1999, Lawrence police officers applied for a warrant to search the second floor apartment at 214 High Street in Lawrence, Massachusetts. Police detective Mark Rivet supported that application with an affidavit describing the following events, which also occurred on May 25, 1999 (we summarize his description):

1) Lawrence police arrested Rafaella Rosario at her residence, the first floor of 38 Exeter Street in Lawrence. Rosario waived her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a Drug Enforcement Administration consent to search form. Agents and officers seized one-half kilogram of a substance she admitted was cocaine, and fifty grams of a substance which she admitted was heroin.

2) Rosario told the agents and officers that she was holding the drugs for Ramon Alcantara. Rosario also gave the officers other leads concerning drug dealers in the area. Pertinently, she stated that she knew that approximately 125 grams of heroin were being stored in the basement of 214 High Street on a beam. She also stated that Alcantara's residence, the second floor of 214 High Street, contained triple the amount of drugs seized at her residence. She stated that Alcantara lived in this apartment with an individual she described as "Indian-looking" and a man known to her as Daniel.¹ She also said that Alcantara was driving a green car.

3) Rosario placed a call to Alcantara to order 125 grams of heroin. Agents and officers established surveillance at 214 High Street, where they observed a green car in front of the building. They then observed two men exit 214 High Street and enter the green vehicle. They approached the green vehicle and asked the men for identification. On the basis of Florida drivers' licenses, they were identified as Juan Castillo and Felix Santana. The men told the officers they were coming from the first floor apartment, where they lived. However, when both men were brought to the door of the first floor apartment, its tenant said that he did not know them, and that they were staying with Alcantara on the second floor. The resident of the first floor apartment permitted the agents to search the common basement.

The affidavit then described what occurred as the officers searched the basement:

[A]gents and officers found a clear plastic baggie on top of a beam in the basement. The baggie contained a substance that was consistent with the appearance of heroin. While the consent search of the basement was being conducted, agents and officers observed two Hispanic males run from the second floor apartment. There is only one apartment on the second floor. Both men were apprehended and were subsequently identified as Ramon Alcantara Jiminez and Richard Lara [an alias of José Castillo].²

Detective Rivet's affidavit concluded with his assertion that there was probable cause to believe that "there is currently located within 214 High Street, second floor, Lawrence, Massachusetts, illegal controlled substances...."

There were a number of agents and officers at 214 High Street. One of them, Drug Enforcement Administration Special Agent Todd Prough, found the baggie on the beam. In an affidavit submitted in response to Castillo's motion for a Franks hearing, he stated that he did not have a field-test kit available to test the substance in the baggie, but told Rivet that it contained "a white powder with an appearance consistent with that of heroin." Prough stated that, after he gave Rivet this information, he remained at 214 High Street until he was relieved by Trooper Brian O'Neil. He then went to the police station to perform several tests related to the investigation, including testing the baggie to see whether it actually contained heroin. When he left for the station to test the baggie, he was told by another officer that Detective Rivet was already en route to swear out the application for a search warrant. A test at the police station revealed that the baggie did not contain heroin. Prough returned to 214 High Street after receiving this information. By the time he arrived, Detective Rivet and other officers had almost completed their search of the second floor apartment pursuant to a warrant issued by a magistrate on the basis of Rivet's affidavit. That search was executed at 9:15 P.M.

The next day, Drug Enforcement Administration Special Agent Gregg A. Willoughby stated in an affidavit in support of a criminal complaint that while the baggie on the beam tested negative for the presence of heroin and cocaine, the subsequent search of the second floor apartment at 214 High Street revealed many substances that field tested positive for heroin.

On July 1, 1999, the grand jury returned an indictment charging Castillo and co-defendant Ramon Alcantara with conspiracy to distribute and possess with intent to distribute heroin and cocaine (Count I).³ On October 12, 1999, Castillo filed a Motion for Franks Hearing and to Suppress Evidence. The district court denied that motion on January 26, 2000. Castillo pleaded guilty to the conspiracy count on April 10, 2000. On November 20, 2000, the district court imposed a sentence of 70 months of imprisonment. The Plea Agreement permitted Castillo to appeal the district court's denial of his motion for a Franks hearing. Castillo filed a notice of appeal after judgment was entered on November 29, 2000.

II.

Castillo argues that there is an inconsistency between Rivet's search warrant affidavit alleging that the "baggie [found in the basement at 214 High Street] contained a substance that was consistent with the appearance of heroin," and Willoughby's criminal complaint affidavit filed the next day admitting that the "white, powdery substance ... subsequently tested negative for the presence of heroin and cocaine." On the basis of this alleged inconsistency, he speculates that "when application was made for the search warrant, the DEA and/or Lawrence Police knew that the baggie found on the basement beam had field tested negative for heroin and cocaine." Castillo also charges that the government should have admitted in its affidavit that "the two Hispanic males running from the second floor apartment did not run until after police broke down the door to the apartment." He claims that these two omissions entitled him to a Franks hearing at which he could try to demonstrate that, with full disclosure, there was no probable cause for the issuance of a warrant on May 25, 1999.

The Supreme Court has held that:

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. A material omission of information may also trigger a Franks hearing. United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990). Therefore, we consider whether Castillo has made "a substantial preliminary showing" that the two omissions he identifies were "made knowingly and intentionally" or "with reckless disregard for the truth" and whether the omissions were "necessary to the finding of probable cause."⁴ Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. "We review the denial of [a Franks] hearing for clear error." United States v. Grant, 218 F.3d 72, 76 (1st Cir. 2000) (citing United States v. Owens, 167 F.3d 739, 747 (1st Cir.1999)). A district court's ruling is clearly erroneous only if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

A. Intentional or Reckless Omissions

1. The Baggie

The government argues that Rivet's potentially misleading characterization of the contents of the baggie resulted only from Prough's inability to test the baggie at the scene before Rivet swore out his affidavit. Castillo disagrees, arguing that Detective Rivet knew that the substance he described in the affidavit as "consistent with the appearance of heroin" had tested negative for the presence of heroin and cocaine. Castillo does not believe that Prough "just didn't get around to performing the field test until late that evening" because, he argues, "[Prough] knew that a positive field test would clinch probable cause." Castillo claims that this allegation calls into question the government's account of the timing of the negative field test, entitling him to a hearing.

Castillo offers no evidence to support his speculation that the negative field test had already been performed by Prough when Rivet prepared his affidavit. According to the government, "the uncontroverted evidence demonstrates that Agent Prough remained at 214 High Street with the...