U.S. v. Garcia-Zambrano

• Decision Date: 03 July 2008
• Docket Number: No. 07-1261.,07-1261.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Hector Rene GARCIA-ZAMBRANO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

530 F.3d 1249

UNITED STATES of America, Plaintiff-Appellant, v. Hector Rene GARCIA-ZAMBRANO, Defendant-Appellee.

No. 07-1261.

United States Court of Appeals, Tenth Circuit.

July 3, 2008.

Daniel S. Goodman, U.S. Department of Justice, Washington, D.C. (Troy A. Eid, United States Attorney, and James R. Boma, Assistant United States Attorney, District of Colorado, with him on the briefs), for Plaintiff-Appellant.

Michael P. Zwiebel (Harvey A. Steinberg with him on the brief), Springer and Steinberg, P.C., Denver, Colorado, for Defendant-Appellee.

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

Defendant was indicted on three counts of possession with intent to distribute certain controlled substances. After conducting a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the district court granted Defendant's motion to suppress evidence seized from his apartment pursuant to a search warrant, ruling that false statements were recklessly included in the search warrant affidavit and that the affidavit did not support a finding of probable cause once the false statements were excised. The government appeals the court's granting of Defendant's suppression motion. We have jurisdiction over this appeal under 18 U.S.C. § 3731.

BACKGROUND

At the time the search warrant at issue in this case was executed, Defendant was living in a large apartment complex in Denver. Officer Robert Fitzgibbons of the Denver Police Department was employed in an off-duty capacity as a courtesy officer at the same apartment complex. As a courtesy officer, he patrolled the apartment complex and handled security problems, and in return he was allowed to live in one of the apartment units for a significantly reduced rent.

According to his testimony at the Franks hearing, Officer Fitzgibbons was contacted by the manager of the apartment complex on or about April 7, 2006, regarding complaints of a strong odor of marijuana emanating from Defendant's apartment. Officer Fitzgibbons questioned five other apartment employees, who all related similar complaints regarding the frequent smell of marijuana outside of Defendant's apartment. Officer Fitzgibbons testified that these five employees also reported observing heavy pedestrian traffic to Defendant's apartment. On four occasions between April 7 and April 22, 2006, Officer Fitzgibbons attempted to contact Defendant by knocking on his apartment door. Each time, the officer could smell marijuana coming from Defendant's apartment and could hear noise inside the unit, but no one answered the door.

On April 24, 2006, Officer Fitzgibbons contacted Detective Shawn Saunders of the Denver Police Department and informed him of the situation with Defendant's apartment. Detective Saunders sent another officer to conduct a canine narcotics sniff in the hallway outside of Defendant's unit, but the results of the sniff were inconclusive.

That same day, Detective Saunders prepared a search warrant affidavit for Defendant's apartment. A county court judge authorized the search warrant that day, and Denver police officers then conducted a search of Defendant's apartment, retrieving what was later confirmed to be methamphetamine, ecstacy, and marijuana from the apartment.

Shortly after the search warrant was executed, Officer Fitzgibbons obtained handwritten statements from the six employees of the apartment complex he had previously spoken to, including the apartment manager. In these statements, the employees described smelling the odor of marijuana coming from Defendant's apartment. None of the employees' statements mentioned nonresident pedestrian traffic to Defendant's apartment.

Later that evening, Officer Fitzgibbons prepared a report describing what others had told him and what he had observed regarding Defendant and his apartment. In his report, Officer Fitzgibbons related that the apartment manager had contacted him over a period of two months regarding the smell of marijuana coming from Defendant's apartment and that he had subsequently received similar information from other apartment employees. Officer Fitzgibbons also explained that he had attempted to contact Defendant about the smell but had been unsuccessful. Officer Fitzgibbons reported observing, on four separate occasions, Defendant enter the apartment complex with another person, who shortly thereafter left without Defendant. Officer Fitzgibbons did not report receiving any complaints of pedestrian traffic to Defendant's apartment.

Detective Saunders obtained an arrest warrant based on the physical evidence found in Defendant's apartment, and Defendant was arrested when he returned to his apartment on the evening of April 24. Defendant was subsequently indicted on three counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841 or aiding and abetting the same in violation of 18 U.S.C. § 2.

Defendant then moved to suppress the evidence seized from his apartment, arguing that the affidavit used to obtain the search warrant contained insufficient information to support a finding of probable cause. The district court held a suppression hearing at which Detective Saunders testified. In his testimony, Detective Saunders referred to Officer Fitzgibbons' police report, which had not been provided to the defense. The court ordered Officer Fitzgibbons' report and certain other materials to be released to defense counsel for review and continued the suppression hearing to October 25, 2006. On that date, Defendant informed the court that he intended to file a motion for a Franks hearing, based mainly on inconsistencies between the search warrant affidavit and Officer Fitzgibbons' report. The court therefore continued the October 25 hearing until it had made a ruling on the request for a Franks hearing.

The court subsequently granted the motion for a Franks hearing, and the hearing was conducted on March 30, 2007. Detective Saunders and Officer Fitzgibbons testified for the government; Defendant presented no witnesses. At the end of the Franks hearing, the government requested that the court continue the hearing and allow the government to reopen its case-in-chief so that it could elicit testimony from the apartment manager. The court denied this request, finding that the government was on notice as to the substance of the hearing based on the record of the case.¹

After considering supplemental briefing submitted by both parties, the district court granted Defendant's motion to suppress. As discussed in more detail below, the district court found that Officer Fitzgibbons and Detective Saunders acted with reckless disregard for the truth in their preparation of the affidavit. The court then held that, after the false statements were purged, the affidavit did not provide a sufficient basis for a finding of probable cause. The court rejected the government's argument that the good faith exception to the exclusionary rule applied to the execution of the search warrant. The government appeals.

DISCUSSION

A search warrant must be voided and the fruits of the search suppressed where a court (1) finds that the affiant knowingly or recklessly included false statements in or omitted material information from an affidavit in support of a search warrant and (2) concludes, after excising such false statements and considering such material omissions, that the corrected affidavit does not support a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). On appeal, we review de novo the ultimate determination of reasonableness under the Fourth Amendment, but accept the district court's factual findings unless clearly erroneous. United States v. Avery, 295 F.3d 1158, 1167 (10th Cir.2002). Specifically, we review for clear error the district court's findings regarding the truth or falsity of statements in the affidavit and regarding the intentional or reckless character of such falsehoods. See United States v. Allerheiligen, 221 F.3d 1353 (table), 2000 WL 1055487, at **3-4 (10th Cir.2000) (unpublished); United States v. Elkins, 300 F.3d 638, 649 (6th Cir.2002); United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988). Whether a corrected affidavit supports a finding of probable cause is a question of law that we review de novo. See United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir.2005).

The government contests the district court's finding of falsity as to several key statements in the affidavit as well as the court's related finding that these statements were included in the affidavit with reckless disregard for the truth. The government also argues that the district court excised more of the affidavit than was necessary to remove the statements it found to be false. We address in turn each statement the district court found to be false, then address the court's finding that the affidavit was prepared with reckless disregard for the truth.

First, the district court found to be false the affidavit's representation that "Officer Fitzgibbons ... has been employed by [the apartment complex] for approximately 1½ months." (R. at 305.) The undisputed evidence establishes that Officer Fitzgibbons had actually been employed by the complex since February 2006, and the government does not dispute the district court's finding that this representation in the affidavit was false. Rather, the government argues that the beginning of this sentence, which stated that Officer Fitzgibbons worked for the apartment complex as a courtesy officer, was true and should not have been excised. However, given the lack of any explanation by the government as to how this fact would support a finding of probable cause, we conclude that any error in the excision of this sentence was harmless.

Next, the court found the assertion that "[t]he management related...