United States v. Bullard, Case No. 8:02CR10 (D. Neb. 4/18/2002)
| Decision Date | 18 April 2002 |
| Docket Number | Case No. 8:02CR10. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CLAYTON BULLARD, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Report and Recommendation (Filing No. 17) issued by Magistrate Judge Thomas D. Thalken recommending denial of the Motion to Suppress and request for Franks hearing (Filing No. 11) filed by the Defendant, Clayton Bullard. Bullard filed a Statement of Objections to the Report and Recommendation (Filing No. 18) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Bullard is charged in Count I of a two-count Indictment with: possession with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine ("PCP"), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1) (Count I); and possession with intent to distribute cocaine, in violation of §§ 841(a)(1) and 841(b)(1) (Count II). Bullard seeks a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) and an order suppressing all evidence obtained as a result of the search of his person, vehicle, and residence at 3442 Corby Street, Omaha, Nebraska.
Following an evidentiary hearing, Magistrate Judge Thalken issued a Report and Recommendation in which he determined, with regard to the Franks issue: the information that Bullard argued was omitted from the search warrant affidavit was not required in the affidavit; and, with regard to the alleged omission, Bullard failed to demonstrate any misrepresentation or reckless disregard for the truth. With regard to the probable cause issue, the search warrant affidavit contained sufficient information to support a finding of probable cause to believe illegal narcotics were present at 3442 Corby Street. On the basis of these determinations, Magistrate Judge Thalken recommended that Bullard's Motion to Suppress be denied.
Bullard filed Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 18.) The Objections are supported by a brief.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Bullard has objected.1 The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
The Magistrate Judge set out in his "findings of fact" the portion of the search warrant affidavit that supported the determination that probable cause existed. (Filing No. 17.)
Briefly, law enforcement officers obtained information from a confidential informant which officers incorporated into their affidavit and application for a search warrant. Douglas County Court Judge Joseph Caniglia signed the search warrant. The search warrant, authorizing the search of Bullard's person and the premises at 3442 Corby Street, was executed on December 18, 2001. Incriminating evidence was found that led to the filing of the Indictment. (Exhibit 1.)
At the evidentiary hearing, Bullard offered evidence previously filed with the Court. (Filing No. 12; TR 3:4-14.) Bullard's evidence included an Affidavit of Clayton Bullard stating that he knew the informant was Corey Dailey,2 who was at Bullard's residence on December 17, 2001. Bullard stated that Dailey was under the influence of "some kind" of controlled substance at the time. Bullard also included an Affidavit of Ralph Dorsey who stated that he knew Dailey well, and that he was aware that Dailey was under the influence of various named and unnamed controlled substances on December 14, 15, 16, and possibly December 17, 2001. Dorsey also testified in his Affidavit that Dailey told him he needed to "`get somebody'" because of his pending felony charges. Finally, Bullard submitted an Affidavit of his attorney, Alan Stoler, who stated that he obtained and attached to his affidavit Dailey's criminal record. The attachment shows three pending drug charges, one drug conviction, and several convictions for false information. (Filing No. 12.)
Also, the Court has considered the transcript of the hearing conducted by the Magistrate Judge on February 27, 2002 (Filing No. 16). The Court also carefully viewed the evidence. Based on the Court's de novo review of the evidence, Judge Thalken's factual findings will be adopted.
Bullard objects to the Magistrate Judge's Report and Recommendation with the following arguments regarding the Franks issue: the Magistrate Judge's findings are contrary to the facts and the law; crucial facts were omitted from the search warrant affidavit with the intent to make, or in reckless disregard as to whether they render, the affidavit misleading; and, if the omitted facts were included, probable cause could not be determined based on the affidavit. With regard to the probable cause issue, Bullard objects that the four corners of the search warrant affidavit did not include sufficient information to support a finding of probable cause.
Bullard objects to the denial of a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), arguing that the affidavit in support of the search warrant omitted information regarding the confidential informant ("CI") that should have been made available to the issuing judge. Bullard argues in his brief that the omitted details consist of the CI's criminal record and his drug use during the same time period he provided information about Bullard. Bullard argues that the omitted information would have led to a determination that the CI was not reliable, and therefore, the issuing judge would not have determined that probable existed for issuance of the search warrant.
To obtain a Franks hearing within the context of the alleged omission, Bullard must show: (1) facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) the affidavit, if supplemented by the omitted information, would not support a finding of probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001); United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995). This "substantial preliminary showing" is "not lightly met." United States v. Hively, 61 F.3d 1358, 1360 (8th Cir. 1995). Mere allegations of negligence or innocent mistake are insufficient to make this substantial preliminary showing, United States v. Najarian, 915 F. Supp. 1441, 1455 (D.Minn. 1995), but "recklessness may be inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been `clearly critical' to the finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986 (citation omitted)). If the affidavit is sufficient to establish probable cause with the false material removed or with the omitted material included, no evidentiary hearing is required. United States v. Crook, 936 F.2d 1012, 1014 (8th Cir. 1991). Probable cause exists when the application for a search warrant "presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Riedesel, 987 F.2d 1388, 1390 (8th Cir. 1993).
Bullard challenges the CI's reliability, an important factor for a probable cause determination. United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996). Credibility is considered together with reliability under a totality-of-the-circumstances approach. Id.
It is not necessary to reveal a confidential informant's pending charges to a judge who determines whether probable supports issuance of a search warrant. United States v. Hall, 171 F.3d 1133, 1143 (8th Cir. 1999). The Eighth Circuit stated that it has concluded, "as a matter of law, that courts issuing search warrants are aware of the possibility that a confidential informant may be seeking leniency in his or her own situation." Id. (citing United States v. Gladney, 48 F.3d 309, 315 (8th Cir. 1995)). Regarding the informant's general criminal history, it is not required to inform an issuing judge of criminal history where the informant's tips have been at least partly corroborated. United States v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990); United States v. Parker, 836 F.2d 1080, 1083 (8th Cir. 1987). Regarding the CI's drug use as stated in the affidavits submitted by Bullard, there is no evidence that law enforcement officers knew of any such drug use at or near the time the CI provided information and, therefore, Bullard cannot meet the required showing that the information was allegedly omitted with an intent to make, or in reckless disregard of whether the omission makes, the affidavit misleading. Cf. Hall, 171 F.3d at 1143-44 ().
Therefore, the Court finds that Bullard has failed to make a "substantial preliminary showing" needed to receive a Franks hearing. The evidence presented does not amount to a substantial showing that the affidavit omitted information with the intent to make the affidavit misleading or in reckless disregard of the meaning of the affidavit. The decision of Judge Thalken regarding the denial of a Franks hearing will be upheld.
"To be valid, a search warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is probable cause may be found in the place to be searched." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998). "The...
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