United States v. Burkhalter
| Decision Date | 21 November 2022 |
| Docket Number | 4:18-CR-00036-BCW |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKHALTER, and JOSHUA NESBITT, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
ORDER AND RECOMMENDATION
Pending before the Court are the Motions to Suppress Evidence filed by Defendants Shawn Burkhalter and Joshua Nesbitt. (Docs 1078, 1087). The Government filed its response in opposition (Doc. 1117), to which Mr. Burkhalter and Mr. Nesbitt have timely replied. (Docs. 1147, 1152). This case was referred to the Honorable Lajuana M. Counts, who set a suppression hearing before the undersigned regarding a black LG cellphone (“LG”). (Docs. 128, 1228). The Court held a hearing on this matter on November 16, 2022. (Doc. 1294). The issue is now ripe for consideration. For the reasons that follow, it is recommended that the motions be DENIED.
Shortly before the hearing, the Government filed a Motion in Limine to forbid certain testimony at the suppression hearing. (Doc 1280). Mr. Burkhalter filed suggestions in opposition (Doc 1281), which Mr. Nesbitt subsequently joined. (See Docs. 1292, 1293). At the suppression hearing, the Court addressed the Government's Motion in Limine on the record. (Doc. 1298). For the reasons stated on the record and more fully outlined below, the Court recommends that the Motion in Limine be granted in part and denies it in part.
The Government's Motion in Limine sought to forbid Mr Burkhalter and Mr. Nesbitt from eliciting testimony during the suppression hearing regarding: (1) how the LG was searched; and (2) the contents of the search warrant, until there had been a substantial preliminary showing to justify a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Doc. 1280 at 2-5). Mr. Burkhalter and Mr. Nesbitt argued that testimony regarding the process of searching the LG was relevant because in the motion to suppress they argue that the search of the LG exceeded the scope of the warrant. (Doc. 1281 at 1-2). They further asserted that the Court already determined that the defendants made a substantial preliminary showing to justify a Franks hearing, so testimony regarding the contents of the search warrant was allowable. (Id. at 2).
Federal Rule of Evidence 104(a) mandates that “[t]he court must decide any preliminary question about whether . . . evidence is admissible . . . [but] the court is not bound by evidence rules.” Thus, “the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.” United States v. Henderson, 471 F.3d 935, 938 (8th Cir. 2006) (citations omitted). “The evidence on which the Court relies in ruling on a suppression motion[, however,] must still be sufficiently reliable and probative.” United States v. Golden, 418 F.Supp.3d 416, 422 (D. Minn. 2019) (citing United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986)).
The Court ruled that Mr. Burkhalter and Mr. Nesbitt could elicit testimony about how the LG was searched. The Court determined that this testimony was relevant to Mr. Burkhalter and Mr. Nesbitt's argument that the search of the LG exceeded the scope of the warrant. See Golden, 418 F.Supp.3d at 422. The Government's argument that this testimony should be forbidden was unsupported by any Federal Rules of Evidence, and the cases cited in support of its argument described when the Court should hold an evidentiary hearing, not what testimony could or could not be elicited at a suppression hearing. See United States v. Tsarnaev, 53 F.Supp.3d 450, 46768 (D. Mass. 2014); United States v. Channon, No. 13-966-JCH, 2014 WL 12788057, at *13 (D. N.M. Sept. 22, 2014); United States v. Foster, 15 F.4th 874, 876 (8th Cir. 2021). Thus, the Court denied the Government's Motion in Limine as it pertained to testimony about how the LG was searched.
“[I]n order to merit a Franks hearing, [the defendants] must show both (1) that the affiant . . . ‘knowingly and intentionally' made false statements or made them in ‘reckless disregard for the truth' and (2) if the false information is excised (or the omitted information is included), the affidavit no longer establishes probable cause.” United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (citing Franks, 438 U.S. at 155-56). “A mere allegation standing alone, without an offer of proof in the form of a sworn affidavit of a witness or some other reliable corroboration, is insufficient to make the difficult preliminary showing.” United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998) (citing Franks, 438 U.S. at 171). Specifically, “[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” United States v. Williams, 477 F.3d 554, 557 (8th Cir. 2007) (quoting Franks, 438 U.S. at 171). “The requirement of a substantial preliminary showing is not lightly met.” United States v. Short, 2 F.4th 1076, 1080 (8th Cir. 2021), cert. denied, 142 S.Ct. 626 (2021) (quoting Arnold, 725 F.3d at 898). “Because ‘[t]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant[, t]o mandate [a Franks] hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to crossexamine.'” Williams, 477 F.3d at 558 (quoting Franks, 438 U.S. at 171). “Allegations of negligence or innocent mistake are insufficient.” Id. at 557 (quoting Franks, 438 U.S. at 171).
Mr. Burkhalter and Mr. Nesbitt alleged that the affiant, Detective Vernon Huth, made false statements and omitted relevant information in his affidavit accompanying the search warrant for the LG. (Doc. 1078 at 14-16; Doc. 1087 at 16-20). Specifically, Mr. Burkhalter alleged that the statement “Burkhalter sold small quantities of cocaine and marijuana” was false because a witness, Mr. Charles Leach, stated in an interview that Mr. Burkhalter only used cocaine and marijuana, never sold it. (Doc. 1087 at 17-18). Second, he and Mr. Nesbitt alleged that “Burkhalter and a codefendant, Joshua Nesbitt (‘Nesbitt') robbed . . . and killed Danny Lamont Dean” was false because Mr. Leach exculpated Mr. Burkhalter of Mr. Dean's murder. (Id. at 18; Doc. 1078 at 1415). Third, Mr. Burkhalter alleged that Mr. Anthony Johnson, another witness, never said that “Burkhalter and Nesbitt carried out the Dean murder” because Mr. Johnson actually said “[t]hey got into a clap out at Mama China's and somebody got smoked.” (Doc. 1087 at 18-19). Fourth, they both alleged that “at Burkhalter's direction, Nesbitt shot and killed Anthony Dwayne Johnson” was false because the record only contains evidence that Mr. Burkhalter communicated with an unknown male from jail, saying “go down there real quick . . . [and] take everything.” (Id. at 19; Doc. 1078 at 15-16). Fifth, Mr. Burkhalter alleges that Detective Huth omitted relevant information by not including in the affidavit that Mr. Burkhalter believed he had a parole warrant when he fled from the police, which was the true reason for his flight. (Doc. 1087 at 19-20). Mr. Nesbitt additionally asserts that Detective Huth omitted relevant information when he failed to include that Mr. Nesbitt had only resided in Missouri for a few weeks when Mr. Dean was murdered and was not involved with Mr. Burkhalter at any point prior to that time. (Doc. 1078 at 16).
The Court recommends a finding that Mr. Burkhalter and Mr. Nesbitt did not make a substantial preliminary showing to justify a Franks hearing. There is no indication that Detective Huth knew the statements described above to be false and intentionally submitted them in his affidavit. Arnold, 725 F.3d at 898. There are no sworn affidavits or other reliable corroborating evidence demonstrating that Detective Huth's statements were false, only an unsworn interview with Mr. Leach whose account was not based on first-hand knowledge. (See Doc. 1117 at 42-43). There is no explanation for why a sworn affidavit or other reliable evidence was not submitted with the request for a Franks hearing. Williams, 477 F.3d at 557. Mr. Burkhalter and Mr. Nesbitt's conclusory denials of the information in the affidavit are not enough to meet the difficult preliminary showing required. See id. Additionally, there is no indication that Detective Huth recklessly disregarded the truth when he failed to mention Mr. Leach's interview, Mr. Burkhalter's parole warrant, or how long Mr. Nesbitt lived in Missouri.
Even if the Court excised the alleged false statements and included the information omitted, the Court recommends a finding that the warrant could still establish probable cause. Specifically, there would still be information regarding Mr. Burkhalter's drug trafficking charges via superseding indictment, his flight from police, calls from jail, Detective Huth's training and experience lending him to believe drug traffickers use cellphones to arrange transactions, and marijuana residue found in a baggie in the car Mr. Burkhalter fled from. (See Doc. 1087-1). The Court recommends a finding that Judge Counts did not grant defendants' request for a Franks hearing by setting an evidentiary hearing in this case. She set the evidentiary hearing for this Court to hear argument and testimony regarding the motions to suppress evidence from the LG. (See Doc. 1208 at 12-13). For these reasons, the Court recommends denying the defendants' motion for a Franks hearing, thereby granting the Government's Motion in Limine in part.
On the basis of the evidence presented at the evidentiary hearing, the Court submits the following proposed findings of fact:
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