United States v. Denson
| Decision Date | 05 April 2017 |
| Docket Number | CRIMINAL ACTION NO: 15-12 SECTION: "J"(4) |
| Parties | UNITED STATES OF AMERICA v. GREGORY DENSON |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is a Motion to Suppress and Motion for Franks Evidentiary Hearing (Rec. Doc. 353) filed by Defendant Gregory Denson ("Defendant"), an opposition thereto (Rec. Doc. 358) filed by the United States of America ("Government"), a Motion to Strike Pleading in Opposition (Rec. Doc. 360) which the Court construed as a sur-reply filed by Defendant, another sur-reply filed by Defendant (Rec. Doc. 361), and a sur-reply filed by the Government (Rec. Doc. 370). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.
On January 23, 2015, Defendant and six co-defendants were indicted in a multi-count conspiracy. (Rec. Doc. 1.) The Government alleges that Defendant was the ring leader of a crew that committed multiple armed and violent home invasions of individuals they suspected to be drug dealers. (Rec. Doc. 311 at 3.) The Government further alleges that one of the crew members was caught and arrested during an attempted home invasion. Id. Defendant is charged with bonding that crew member out of jail, killing him, and having his crew assist in dumping the body into the Industrial Canal. Id.
The instant motion arises out of a search of Defendant's home. On May 6, 2014, a Louisiana state trooper ("trooper" or "affiant") presented an application for a search warrant in a sworn affidavit to a magistrate judge ("magistrate") in the Orleans Parish Criminal District Court. (Rec. Doc. 353-2 at 2.) The affidavit requested a warrant to seize: "Any and all items that were taken in residential burglaries to include but not limited to TV's, X-boxes, jewelry, coins, passports, Sony video game systems and laptop computers." Id. The affidavit also requested the warrant to search the property to seize items that had been used in the burglaries. Id. The affidavit includes five separate paragraphs, each referencing a different confidential informant ("CI"), and detailing the information provided by each CI. Although the affidavit states that each CI provided information that was slightly different, the information provided by all CIs was consistent. All five CIs provided information about Defendant's participation in multiple burglaries. Two of the CIs, including a CI ("CI-1") who the affidavit states was a reliable informant who had provided information in the past, informed law enforcement that items from the burglaries were located in Defendant's home.
The magistrate issued the search warrant, and the warrant was executed the same day. (Rec. Doc. 353-2 at 1; Rec Doc. 353-3 at 1.) The search yielded four televisions, an X-box, $10,000 in cash, a purse, and jewelry. (Rec. Doc. 353-3 at 1.) Defendant filed the instant motion requesting that the Court suppress the evidence obtained during the search. (Rec. Doc. 353.) Defendant also requests an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). On March 23, 2017, the Court heard oral argument on the matter. The Court denied Defendant's motion to suppress and request for a Franks hearing in open Court, and advised the parties that it would issue written reasons.
Defendant makes two arguments in favor of suppression. First, Defendant argues that the affidavit presented to the magistrate is hopelessly tainted by intentional misrepresentations and omissions. In particular, Defendant argues that the affidavit falsely states that two of the CIs provided the affiant with the location of other items that had been stolen by Defendant. These statements, argues Defendant, are misleading because no evidence exists to support the statement that the recovered items were connected to Defendant. Second, Defendant argues that the affidavit is so bare bones that it fails to establish probable cause.
The Government argues that Defendant failed to meet his burden of demonstrating that the statements in the affidavit are untruthful or that the affiant made the statements with the intent to mislead the magistrate. The Government argues that, considering the totality of the circumstances, the affidavit created probable cause for the search because it relied upon the information provided by CI-1, who had provided information to the Government in the past, and was reinforced by four other CIs (CI-2 through CI-5) who provided corroborating information. Further, the Government avers that there is nothing fundamentally false or inaccurate about the affidavit's reference to CI-2 and CI-5 because both CIs had, in fact, provided information that led to the recovery of items pursuant to search warrants prior to the affidavit being created.
In a motion to suppress, the defendant bears the burden of making specific factual allegations of illegality, producing evidence, and persuading the court that evidence should be suppressed. United States v. John Rockwell, No. 07-128, 2007 WL 2122432, at *1 (E.D. La. July 19, 2007) (citing United States v. Evans, 572 F.2d 455, 486 (5th Cir. 1978)). The Fifth Circuit utilizes a two-step process to evaluate a defendant's motion to suppress when a search warrant is involved. First, the court mustdecide whether the Leon good faith exception to the exclusionary rule applies. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015) (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999)). The Leon good faith exception provides that evidence is admissible when it is obtained by law enforcement officials acting in objectively reasonable good faith reliance upon a search warrant, even if the affidavit on which the warrant was based was insufficient to establish probable cause. United States v. Leon, 468 U.S. 897, 922-23 (1984); United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). "'[A] warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has 'acted in good faith in conducting the search.'" Leon, 468 U.S. at 922 (citing United States v. Ross, 456 U.S. 798, 823 n.32 (1982)).
The court's analysis ends if the good faith exception applies. Moore, 805 F.3d at 593. If the good faith exception does not apply, then the court proceeds to the second step and determines "whether the affidavit established probable cause that the evidence to be seized would be found in the place to be searched, justifying the issuance of the warrant." Id. (citing United States v. Aguirre, 664 F.3d 606, 613-14 (5th Cir. 2011)); see also United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004). "Probable cause may be established through 'direct observation' or 'normal inferences as to where the articles sought would be located.'"Moore, 805 F.3d at 593 (citing United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)).
A Franks hearing is an evidentiary hearing conducted to determine the veracity of an affidavit used to obtain a search warrant. United States v. Richardson, 478 F. App'x 82, 84 n.1 (5th Cir. 2012). The affidavit supporting a search warrant enjoys a "presumption of validity." Franks v. Delaware, 438 U.S. 154, 171 (1978). Therefore, a defendant is only entitled to a Franks hearing upon making a "substantial preliminary showing," Id. at 155, that "(1) allegations in a supporting affidavit were deliberate falsehoods or made with a reckless disregard for the truth, and (2) the remaining portion of the affidavit is not sufficient to support a finding of probable cause." United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006). When demonstrating the first prong, the showing "must be more than conclusory." Id. at 171. A defendant has not met the Franks standard "in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination. Franks, 438 U.S. at 170. Even if the first prong is met, the Court "excis[es] the offensive language from the affidavit and determine[s] whether the remaining portion would have established probable cause." United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002). If the Court determines that the affidavit would have establishedprobable cause without the excised portion, then the defendant is not entitled to a Franks hearing. Id. This second prong "is often determinative." United States v. Brown, 298 F.3d 392, 395 (5th Cir. 2002).
The Leon good faith exception applies unless one of the following four scenarios is present:
(1) the issuing-judge "was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth"; (2) the issuing-judge "wholly abandoned his judicial role" in such a manner that "no reasonably well trained officer should rely on the warrant"; (3) the underlying affidavit is "bare bones" ("so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"); or (4) the warrant is "so facially deficient . . . that the executing officers cannot reasonably presume it to be valid[.]"
Mays, 466 F.3d at 343 (quoting United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005)). Here, Defendant argues that the search at issue suffers from two of these defects and that Leon's good faith exception should not be applied. First, Defendant argues that the magistrate was misled by information in the affidavit that the affiant knew to be false or would have known to be false except for his reckless disregard of the truth. Second, Defendant argues that the affidavit is a bare bones affidavit. For the reasons described below, the Court finds neither argument availing.
Defendant's argument that the magistrate was misled revolves around the affidavit's reference to two of the CIs. The first is a...
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