U.S. v. Garnett

• Decision Date: 19 December 1996
• Docket Number: Civil Action No. 96-50021.
• Citation: 951 F.Supp. 657
• Parties: UNITED STATES of America, Plaintiff, v. Darren Everett GARNETT, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

951 F.Supp. 657

UNITED STATES of America, Plaintiff, v. Darren Everett GARNETT, Defendant.

Civil Action No. 96-50021.

United States District Court, E.D. Michigan, Southern Division.

December 19, 1996.

David W. Wright, Bloomfield Hills, MI, for Defendant.

Nancy A. Abraham, U.S. Attys. Office, Flint, MI, for Plaintiff.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

GADOLA, District Judge.

The defendant was charged on October 4, 1996 by a superseding indictment with five counts, including felon in possession of a firearm, aiding and abetting another felon to possess a firearm, and the making of a false statement in connection with the acquisition of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e), 2, and 922(a)(6). On November 12, 1996, the defendant filed a motion to suppress evidence seized pursuant to a search warrant executed at 6080 E. Grand River Avenue in Brighton, Michigan. For the following reasons, this court will deny the defendant's motion.

FACTS

On February 9, 1996, Michigan State Police Trooper Steven D. Rau¹ prepared an affidavit for a search warrant, which he presented to an Assistant Prosecutor, who reviewed and approved the affidavit. That same day, the affidavit was submitted to Judge Michael K. Hegarty of the 53rd District Court of Michigan in Livingston County and a search warrant was issued. The principal basis for seeking the search warrant was information supplied in January and February, 1996, by a confidential informant ("C/I") to Trooper Rau that in a building rented by the defendant at 6080 East Grand River Avenue, the defendant was selling alcohol to minors and was also engaged in narcotics trafficking. The warrant authorized the sheriff or any peace officer of the county "to seize, secure, tabulate and make return according to law" the following items:

[a]lcoholic beverages, receipts or records pertaining to the possession, ownership, and or sales of alcoholic beverages, [m]arijuana, controlled substances, narcotic paraphernalia, [m]aterials for diluting controlled substances, scales and weighing equipment for controlled substances, lists and records pertaining to the possession, ownership and/or ownership and/or residency of the above place to be searched, guns and ammunition, officially recorded police currency, currency and coins, paging devices, telephone answering machines, [c]omputer and computer files, records pertaining to controlled substance trafficking and the sales of alcoholic beverages.

The warrant was "anticipatory," in that it could only be executed upon the occurrence of triggering events, to wit: Trooper Rau's admittance into the building located at 6080 East Grand River Avenue on the evening of February 9, 1996, Trooper Rau's observance of under aged subjects purchasing alcoholic beverages and his witnessing of these illegal purchases being facilitated by the defendant.

Trooper Rau's affidavit to establish probable cause for the search may be fairly summarized as follows:² First, Trooper Rau averred that a C/I told him that the defendant and Mark Neal ("Neal") were operating an underground nightclub at the 6080 E. Grand River Avenue address, charging admission and selling alcoholic beverages to all paying persons, irrespective of their age. Trooper Rau asserted that the C/I had supplied accurate and truthful information on three prior occasions, and that Trooper Rau was able to confirm the veracity of the C/I's information through discussions with Sergeants Robert Swackhamer and David Bergsma.³ Second, Trooper Rau stated in his affidavit that within 96 hours of February 9, 1996 (the date the search warrant was issued and executed), Trooper Rau was contacted by the same C/I "who stated a purchase of marijuana from the 6080 E. Grand river [sic] address had occurred and would be possible again" and that Trooper Rau thereafter was successful in sending the C/I to complete a controlled purchase of marijuana from the defendant at that location. According to the affidavit, during the controlled sale, the defendant informed the C/I that "he would be getting more marijuana in the near future." Third, Trooper Rau avowed in the affidavit that he was informed by the same C/I that the defendant and Neal owned and possessed firearms.

The defendant filed a motion on November 4, 1996, to suppress evidence seized pursuant to the search warrant. In his motion, the defendant argues that the search warrant contained false information, was overbroad and lacked probable cause. Each one of these arguments will be addressed in turn.

ANALYSIS

1. Whether the Defendant Is Entitled To An Evidentiary Hearing To Show the Affidavit Contained False Information

The defendant's first contention is that the search warrant was false in the following three respects: (1) the affidavit reflected that the defendant rented the entire premises at 6080 East Grand River Avenue, but in truth the defendant rented only the second floor and basement while the business, R U Safe, rented the main floor; (2) the affidavit's reference to information received from a C/I that marijuana was being sold from the main floor at 6080 East Grand River Avenue was fallacious; and (3) the affiant's assertion regarding statements made by the C/I that the defendant owned or possessed firearms was untrue.⁴ The defendant requests an evidentiary hearing to demonstrate that the affidavit contained false information.

The test to determine if the defendant is entitled to an evidentiary hearing to show the affidavit contained false statements is two-pronged: first, the defendant must make a substantial preliminary showing that the affiant has intentionally or recklessly included a false statement in the warrant affidavit, and second, the defendant must make a substantial preliminary showing that the false statement is material, in the sense that it is necessary to find probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). See also United States v. Skinner, 972 F.2d 171, 175 (7th Cir.1992). In Franks, 438 U.S. at 171, 98 S.Ct. at 2684, the Supreme Court expounded on how the defendant satisfies this two-pronged test:

[t]o 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 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. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not any nongovernmental informant. Finally, and if these requirements are met, and if, when material that is subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments to his hearing. Whether he will prevail at the hearing is, of course, another issue.

With respect to the affidavit supporting the search warrant, "there is a presumption of validity." Franks, 438 U.S. at 171, 98 S.Ct. at 2684.

Although the defendant in the case at hand has pointed precisely to the paragraphs in the affidavit which are allegedly false, the defendant has not made a substantial preliminary showing that the affiant, Trooper Rau, intentionally or recklessly included the allegedly false statements in his affidavit. See e.g. United States v. Ayen, 997 F.2d 1150 (6th Cir.1993); United States v. Cummins, 912 F.2d 98 (6th Cir.1990); United States v. Giacalone, 853 F.2d 470 (6th Cir.), cert. denied, 488 U.S. 910, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988).⁵ The defendant's mere conclusory allegations that the affidavit contains three fabrications does not suffice to grant him an evidentiary hearing. It is incumbent upon the defendant to claim that Trooper Rau knew the statements to be false and to offer proof (e.g. affidavits or sworn or otherwise reliable statements of witnesses) which demonstrates Trooper Rau's deliberate state of mind. See United States v. Ruddell, 71 F.3d 331, 334 ("The lack of an affidavit or sworn statement offering proof of deliberate falsehood, as required by Franks, is enough in itself to defeat [defendant's] demand for an evidentiary hearing."). Absent the requisite showing of intentional perjury, the defendant's request for a suppression hearing to impugn the veracity of the affidavit must be denied.

Assuming arguendo, that the defendant had shown that the affiant, Trooper Rau, acted with reckless disregard, the defendant must nevertheless be denied an evidentiary hearing because the defendant has not satisfied the second prong, requiring that the three alleged falsehoods, taken together, be material. This court finds that if the allegedly false information in the affidavit was set aside, the remaining content of the affidavit would be sufficient to establish probable cause. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. Specifically, probable cause for the warrant would be established through the affidavit's detailed explanation of a very recent controlled purchase by a C/I from the defendant, the C/I's tip that the defendant was operating an underground nightclub, the officer's surveillance of over 50 cars near the building, and the fact that the warrant was anticipatory.

2. Whether The Search Warrant Was Overbroad

Defendant's second allegation is that the warrant was overbroad because it...