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United States v. Ramos-Castillo

United States District Court, D. New Mexico

September 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MANUEL RAMOS-CASTILLO, Defendant.

          Erlinda O. Johnson Attorney for Mr. Ramos-Castillo.

          Matthew T. Nelson, Kristopher N. Houghton Assistant United States Attorneys.

          MEMORANDUM OPINION AND ORDER

          MARTHA VAZQUEZ, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant Manuel Ramos-Castillo’s Motion to Suppress Evidence Derived as a Result of the Unlawful Search and Seizure of 20270 U.S. Highway 84, Hernandez, New Mexico and Memorandum in Support Thereof [Doc. 45], filed December 27, 2018, and Defendant Ramos-Castillo’s Supplemental Argument in Support of Defendant’s Motion to Suppress Evidence [Doc. 77], filed July 3, 2019. The government filed Responses [Docs. 49 and 80] on January 24, 2019 and July 18, 2019, respectively. Mr. Ramos-Castillo filed Replies [Docs. 54 and 81] on February 6, 2019 and July 23, 2019, respectively. The Court held an evidentiary hearing on Mr. Ramos-Castillo’s Motion to Suppress Evidence [Doc. 45] on June 21, 2019, and the parties filed their closing arguments on July 1, 2019. Docs. 73 and 74. Having reviewed the briefs, testimony, exhibits, relevant law, and being otherwise fully informed, for the reasons set forth below, the Motion to Suppress Evidence [Doc. 45] will be GRANTED in part, and the Supplemental Argument in Support of Defendant’s Motion to Suppress Evidence [Doc. 77] will be DENIED.

         PROCEDURAL HISTORY

         On October 23, 2018, Mr. Ramos-Castillo was charged in a one-count Indictment with Possession with Intent to Distribute 1 Kilogram and More of Heroin, in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A). Doc. 20. On December 27, 2018, he filed a Motion to Suppress Evidence based on a search and seizure of his property at 20270 U.S. Highway 84 in Hernandez, New Mexico, including the vehicles parked there. Doc. 45 at 1. The government filed a Response in Opposition on January 24, 2019. Doc. 49. Mr. Ramos-Castillo filed his Reply [Doc. 54] on February 6, 2019, and the Court held an evidentiary hearing on June 21, 2019, during which it heard testimony from Agent Matthew Salcido, a Deportation Officer with Immigration and Customs Enforcement (ICE), Defense Investigator Paula Sanchez-Knudsen, and Defendant Manuel Ramos-Castillo. That same day, Mr. Ramos-Castillo filed an Unopposed Motion for Order to Supplement his Motion to Suppress Evidence [Doc. 71], which the Court granted on July 3, 2019. On July 1, 2019, both parties filed written closing arguments following the hearing on Mr. Ramos-Castillo’s Motion to Suppress. Docs. 73 and 74. On July 3, 2019, Mr. Ramos-Castillo filed his Supplemental Argument in Support of his Motion to Suppress Evidence [Doc. 77], in which he brought an argument under Franks v. Delaware. The government then filed a Response [Doc. 80] on July 18, 2019, and Mr. Ramos-Castillo filed a Reply [Doc. 81] on July 23, 2019. The Court will first address the supplemental Franks argument and then address the remaining suppression issues.

         BACKGROUND

         This case concerns the search and seizure of Mr. Ramos-Castillo’s property based on a search warrant. The following represents the Court’s findings of fact, based on the parties’ briefing, the testimony of witnesses at the evidentiary hearing on June 21, 2019, and the exhibits.

         On Sunday, September 9, 2018, a Source of Information (SOI) reported walking his/her dog in Alcalde, New Mexico when the dog discovered a package. Doc. 45-1 at 6. The SOI inspected the package and observed that it was a six-by-six inch package wrapped in plastic. Id. The SOI unwrapped the package and observed a black substance contained within, which the SOI believed to be illegal drugs. Id. The SOI transported the suspected illegal drugs to the Espanola State Police (NPSP) Office, where an officer advised the SOI to return with the package the following day, which was a Monday. Id. The next day, the SOI returned to the NMSP Office and made contact with Lieutenant Chris Valdez, who took custody of the package. Id. The SOI advised Lt. Valdez that a male subject came to his/her house late the previous night asking if he/she had found a package wrapped in cellophane, stating that the package belonged to his daughter. Id. The SOI then asked the man to leave his/her property. Id. Although Lt. Valdez asked the SOI if he/she knew the man’s identity, the SOI declined to identify the man. Doc. 49 at 2. However, Lt. Valdez knew that Leon Salazar was the SOI’s neighbor, and that Mr. Salazar had previous drug trafficking convictions. Id.

         Lt. Valdez weighed the suspected illegal drugs and noted a weight of approximately 646 gross grams. Doc. 45-1 at 6. He then transferred the package of suspected heroin to Region III Agent Janice Madrid, who field-tested the suspected drugs, which indicated a positive response for the presence of heroin. Id. at 7.

         On September 11, 2018, Agent Madrid and NMSP Region III Narcotics Task Force Agent Gabe Trujillo interviewed Leon Salazar at his scheduled probation meeting. Doc. 45 at 3. As of that date, Mr. Salazar had been reporting to the Espanola District Office of the Probation and Parole Division of the New Mexico Corrections Department for mandatory meetings with his Probation Officer (PO) for months. Id. at 4. That day, upon his arrival, he was taken into a back room. Id. at 4. When his PO left, he was questioned by Agents Madrid and Trujillo. Doc. 49 at 4.

         During the questioning, the agents attempted to obtain information regarding the heroin recovered by the SOI. The agents told Mr. Salazar that they were not looking to arrest him, but rather that they were looking for the “main man.” Doc. 77-2 at 12. They attempted to instill fear in Mr. Salazar, telling him that people will be targeting him, referring to his family and his nice car. Id. In an attempt to get information, Agent Madrid told him that “there’s only going to be one time in your life where the bus comes through and you can pick your seat because the next time the bus comes through, I’m going to assign the seat…I have no problem taxing you both.” Id. at 13–14. She also warned him that it could potentially go to the U.S. Attorney’s Office. Id. at 15. She told him that she was not there to promise him anything but that she could “easily forget about [him].” Id. at 19. She also told him that they could clear his name, that they could get the money and help him pay off the drugs, and that they “just need[ed] to know facts about how much [he owed] and stuff.” Id. at 25.

         Mr. Salazar eventually admitted that he would sell a “tripa” (or three grams) for $180. Id. at 30. He stated he got it from a “young kid” of about 24 or 25 years old at his trailer. Id. at 32– 33. He said the young man who provided the drugs was the brother of Jesus. Id. at 34. He estimated that he was slightly taller than himself and was approximately 130 pounds. Id. at 35– 36. He stated that his new white Lexus was outside the trailer which he had given as collateral for the $23, 000 he owed for the heroin he had received two weeks prior, and that there was also a silver-grey car which he believed was a newer Toyota, as well as a white Chevy and a Civic. Id. at 31–32, 36; Doc. 77 at 10. He described the property as one trailer with several rental trailers, with a chicken coop in the front. Id. at 39. He stated he did not know where the drugs were kept, but offered to take the Agents by the property. Id. at 35, 39.

         On September 14, 2018, Mr. Salazar again met with Agents Madrid and Trujillo at the probation office. Doc. 49 at 6. This time, his PO sat in on the interview. Doc. 80 at 9. The Agents showed Mr. Salazar several photographs and he positively identified photographs of Jesus and Manuel Ramos-Castillo, and stated that they were the individuals he was describing in the September 11 interview. Doc. 49 at 7. However, during that interview he also initially went back on some of what he had revealed to the Agents at the previous meeting. He stated that he wanted to help them but he did not want to get in any more trouble and that he was “innocent.” Doc. 80-1 at 7. When Agent Trujillo asked whether the information Mr. Salazar had previously provided was “off, ” he replied that he would help if he could, and that he was not trying to get into any more trouble. Id. Agent Madrid also asked if the previous interview was the only day he was going to tell the truth, and said to him: “Because now you sit here, because he’s [the PO] sittin’ here, I don’t know why, if you’re lying because he’s in here or what.” Id. at 11. Mr. Salazar began recanting his statements, saying that he did not get any heroin, and that any heroin he had gotten was three years ago. Id. at 17. However, he then returned to his initial version of events, and stated that the heroin that was recovered was obtained from “[t]hat trailer [he] took [them] to.” Id. at 28. He admitted that he had picked the heroin up about two weeks prior. Id. at 30. He said the deal took place in his truck, that he did not go inside the trailer, and that there was no money exchange because he did not have money. Id. at 32.

         On September 17, 2018 Drug Enforcement Agency (DEA) Special Agent (SA) Christopher Godier filed a sworn affidavit in support of a search warrant for the Subject Residence before United States Magistrate Judge Laura Fashing. Doc. 77-1 at 2. The warrant application was signed and approved by Judge Fashing that same day. Id. at 1. The affidavit provided the precise GPS coordinates for the Subject Residence, listed as being on the east side of U.S. Highway 84 in Hernandez, New Mexico. Id. at 3 The affidavit described that a package of suspected heroin was found by a SOI and provided to NMSP Lt. Valdez, and that the package field-tested positive for 646 grams of heroin. Id. at 6–7. The affidavit summarized Agent Madrid and Trujillo’s meeting with Mr. Salazar on September 11, 2018, and that following the interview, Mr. Salazar traveled with the Agents to point out the Subject Residence as well as the vehicles that he had described would be there, including his white Lexus. Id. at 7. It also summarized the September 14, 2018 meeting, in which Mr. Salazar identified photographs of Jesus and Manuel Ramos-Castillo. Id. It confirmed that Jesus Ramos-Castillo was a defendant in a fifteen-defendant drug trafficking case where he was convicted of Use of a Telephone to Facilitate a Drug Trafficking Offense, in violation of 21 U.S.C. § 843(b), and Aiding and Abetting, in violation of 18 U.S.C. § 2, was sentenced to 42 months custody, and removed from the United States thereafter. Id.

         Agent Godier concluded that there was probable cause to believe that evidence of distributing and possessing with intent to distribute heroin would be found at the Subject Residence, and further stated that AUSA Kristopher Houghton reviewed the affidavit and stated that he believed the proposed warrant was “in proper form and is supported by probable cause.” Id. at 8. The affidavit also included several attachments. Attachment A listed the GPS coordinates and the address of the premises, and stated that “the only premises to be searched is the light blue, green-roofed, single-wide trailer, as well as the yard, and driveway appurtenant to that trailer.” Id. at 9. It also contained an aerial photograph with a highlighted area outlining the area described, including the trailer, surrounding yard and driveway, and smaller structures within the highlighted area. Id. There was also a photograph of a side view of the trailer, and a description of a white Chevy pickup truck and silver Toyota pickup truck to be searched if parked on the premises. Id. at 10. Attachment B outlined the items to be seized, to include money, records including ledgers, account books, and other identifying information, customer or dealer lists, telephone and address books, indications of ownership or control of the premises, indications of ownership or control of the vehicles, cellular phones and bills, financial records, financial instruments, transportation records, and firearms or other dangerous weapons. Id. at 11.

         Several days later, on September 24, 2018, at approximately 5:20 p.m., Agents Trujillo and Madrid, SA Godier, and other agents executed the search warrant at the Subject Residence, where Mr. Ramos-Castillo was present. Doc. 45 at 10. Mr. Ramos-Castillo was 23 years old at the time, had graduated high school with mostly C’s and D’s, admitting that “[s]chool was pretty hard for [him], ” is a native Spanish speaker with English as his second language, and was employed at Los Alamos National Laboratory as a custodian. Doc. 72 at 167–68. That day was the first time he ever had any contact with law enforcement. Id. at 168. There were approximately eight to ten law enforcement officers present, including DEA agents, uniformed NMSP officers, and Region III narcotics agents. Doc. 72 at 16. Most of the federal agents were in plain clothes, although at least one agent, Larry Pantoja, wore a tactical uniform as a SWAT member. Id. at 17. Agent Salcido testified that although he wore plain clothes, he wore a tactical vest with police markings on the front and back, and carried both a sidearm and long arm that day. Id.

         At the Subject Residence, Agent Godier knocked and the door swung open. Id. at 18. Agent Salcido testified that once the door is open, they are in a compromised position, so at that point, they went forward with the entry. Id. He stated that it was possible that Agent Godier tested the door and it was open, so he pushed it open and the Agents went in, but that he was at the back of the stack and did not recall whether Agent Godier knocked on the door first. Id. at 67.

         He testified that Agent Godier saw Mr. Ramos-Castillo immediately and gave him verbal commands to show his hands. Id. at 20. At that time, Mr. Ramos-Castillo was wearing boxer shorts and was not wearing a shirt. Id. at 68. He testified that “it appear[ed] that the Defendant [wasn’t] obeying commands.” Id. at 21. According to Agent Salcido, Mr. Ramos-Castillo failed to obey the verbal commands and just stood there and yelled back, “You can’t be in my house, You need to have a warrant.” Id. He testified that Mr. Ramos-Castillo was not combative but he was not compliant either. Id. Mr. Ramos-Castillo testified that he heard a “boom” and suddenly there were officers inside his home yelling “search warrant” at him, and he just “froze up.” Id. at 170. He said that the agents approached him immediately and he put his hands up and asked to see the search warrant. Id. at 173. Agent Godier then proceeded to “go hands-on” by restraining Mr. Ramos-Castillo and putting him in handcuffs. Id. at 21. Agent Salcido could not recall if Agent Godier had a weapon on him. Id. However, he testified that he had his weapon drawn and was covering Agent Godier. Id. at 21–22. He testified that while Agent Godier attempted to restrain Mr. Ramos-Castillo, Agent Godier fell and his helmet hit the glass portion of a nearby nightstand. Id. at 22. He testified that Agent Godier had no choice but to restraint Mr. Ramos-Castillo and take him to the ground, and that they have to restrain everyone in a high-risk narcotics search warrant. Id. at 23–24. He stated that despite Mr. Ramos-Castillo not appearing agitated or raising his voice, they had to make a split-second decision. Id. at 24. Mr. Ramos-Castillo testified that one of the agents “got [his] arm and he slammed [him], slammed [his] head against the entertainment center” in his room. Id. at 174. His head was cut on his forehead and in his hairline, and he sustained a shoulder injury from being slammed against the entertainment center. Id. at 174, 177; Def. Exs. H, H-1 He testified that the agent fell on top of him and that he was immediately handcuffed after being slammed to the floor. Id. at 174–75. As they handcuffed him, they turned him as his face was in the glass, which caused cuts to his head. Id. at 177. Noticing Mr. Ramos-Castillo’s cuts from the glass, one of the officers cleaned the blood on his face. Id. at 175; see also Def. Exs. F, G (depicting a piece of toilet paper with blood near the broken entertainment center). Mr. Ramos-Castillo testified that the blood dripped down his face to his nose before it was cleaned. Id. at 176. He reported that his head was throbbing like a migraine and his shoulder and knee were in pain as well. Id.

         At that point, Agent Salcido walked past to clear the bathroom. Id. at 23. After detaining Mr. Ramos-Castillo immediately upon entering the Subject Residence, Agents Godier and Pantoja picked him up and moved him into the living room to sit on the couch. Id. Mr. Ramos-Castillo had several abrasions on his head which were bleeding as a result of being taken to the ground by Agent Godier. Id. at 69. He testified that he was handcuffed throughout the encounter behind his back, despite alerting the agents that it was hurting his shoulder. Id. at 178.

         Agent Salcido testified that Agent Pantoja, an EMT, examined the two small abrasions that were bleeding and verified that they were not significant enough to require Band-Aids. Id. at 38. But Mr. Ramos-Castillo testified that Agent Pantoja “looked at” him but did not do any further examination or testing. Id. at 178–79. He testified that his head was spinning and throbbing, and his thoughts were racing. Id. at 182.

         At that point, the agents were questioning Mr. Ramos-Castillo; Agent Salcido estimated that it had not been more than one or two minutes since they began the execution of the search warrant. Id. at 26. Mr. Ramos-Castillo asked to see the search warrant, and was told by Agent Godier that it does not arrive that fast. Id. at 26–27. Despite asking to see the warrant several times, it was never shown to Mr. Ramos-Castillo. See Gov. Ex. 2, 2a. Agent Salcido told Mr. Ramos-Castillo that they were “going to search every little piece of this residence. And the--, and everything around here because that’s what the warrant entails.” Id. at 19. He testified that at the time the warrant was executed, he was not aware exactly what the warrant covered, but had “just the basic knowledge of what was going on.” Doc. 72 at 105. He also stated that at the time, they were not asking for permission to search, as they had a warrant, and that it was his understanding that they had a warrant to search the whole property, so that was their intention. Id. at 106. He testified that he was not aware that the warrant did not cover the chicken coop. Id. Agent Salcido also testified that he does not know whether the search warrant was ever shown to Mr. Ramos-Castillo, and that he does not know why it was not shown to Mr. Ramos-Castillo when he requested to see it. Id. at 121. Mr. Ramos-Castillo testified that at that time he believed that the agents did in fact have a search warrant for the entire property. Id. at 184.

         Agent Salcido testified that at one point during the questioning of Mr. Ramos-Castillo he asked all agents to leave the room so that it was just him, Agent Godier, and Agent Madrid. Doc. 72 at 29. He stated that having “so many agents around a defendant that’s about to give a voluntary statement would lend towards its involuntariness.” Id. He testified that at some point he dropped his long arm and his vest, and he believed that the other agents also dropped their long arms. Id.

         Throughout the questioning, Mr. Ramos-Castillo was told that he should just tell the agents where the narcotics were hidden so they would not have to destroy his house and property. Gov. Ex. 2, 2a. Several times throughout the interview he answered that he did not have anything inside his house, which Agent Salcido testified was a clue that there was something hidden somewhere outside the residence. Doc. 72 at 33. Agent Salcido opined that this was a “quasi admission” that there was nothing inside the house but possibly something outside. Id. He testified that the conversation took place in a relaxed environment and that no uniformed officers had entered the trailer at that point, and no agents had brandished their firearms. Id. at 36–37. However, he also testified that Agent Pantoja had previously been in the trailer and that he was wearing his tactical uniform. See id. at 17, 23.

         The agents repeatedly asked Mr. Ramos-Castillo where the narcotics were located, and repeatedly told him they would “tear up” his whole property if he did not show them. See Gov. Ex. 2, 2a. Eventually, he was taken from the couch in his trailer to his Toyota truck outside, where he was seated on the tailgate and the questioning continued. Id. At one point, Mr. Ramos-Castillo asked the agents if they would tie his shoe, as he was handcuffed, and Agent Madrid responded that his shoe was going to come off, and an unknown uniformed officer then interjected and stated, “It’s gonna end up coming off in jail, ” and they continue with the interrogation. Id. at 31; Doc. 72 at 85.

         Agent Salcido testified that after the initial entry, none of the agents had their long rifles; however, he stated that all agents still had their sidearms thereafter including during questioning, including himself, Agent Madrid, Agent Godier, and Sergeant Shelton. Doc. 72 at 104. Throughout the course of the interrogation, there were 45 different times that the agents asked or demanded that Mr. Ramos-Castillo take them to the drugs. Def. Ex. T; Doc. 72 at 88–90. The agents also made a total of 28 statements to Mr. Ramos-Castillo about tearing his property up, destroying his property, or other threats along those lines if he did not show them where the drugs were hidden. Id.; Doc. 72 at 102. Throughout the questioning, the agents, and Agent Madrid in particular, were very close to Mr. Ramos-Castillo’s face. Doc. 72 at 199. Eventually, Mr. Ramos-Castillo stated, “I’m f***ed…I’m gonna go to jail anyway, I’m gonna be f***ed with my job…” Gov. Ex. 2, 2a at 15; Doc. 72 at 111. After over twenty-five minutes of this repeated questioning, Mr. Ramos-Castillo led the officers to the location where the narcotics were stashed, in a cooler in the ground under dirt and plywood inside his chicken coop. Id; Doc. 72 at 53.

         The fence to the chicken coop was located approximately 60 feet from Mr. Ramos’s trailer. Doc. 72 at 154. The chicken coop had a gate, was enclosed with chicken wire fencing, and had coops made of plywood, wood, and chicken wire. Gov. Ex. 4r–v. The chicken coop has only one entrance, which is through a gate. Doc. 72 at 139. There is no fence that encloses both Mr. Ramos- Castillo’s trailer and the chicken coop, and there were no “no trespassing” signs on his property. Id. at 146, 212. Mr. Ramos-Castillo guided the agents into the coop and indicated where the narcotics were located, under plastic grates. Id. at 52. Inside the cooler, agents located a plastic bag containing approximately one kilogram of heroin. Id. at 54. Agent Salcido testified that they did not search any other areas of the coop, but rather went straight to the area to which Mr. Ramos-Castillo directed them. Id. at 55.

         In the chicken coop, there appeared to be trash from food items, including a soft drink cup, chip bags, alcohol containers, and beer bottles (some of which were still full). Id. at 110, 140, 148, 162; Def. Ex. R. Inside the coop, there were also chairs and other items on which people could sit such as buckets and tires. Id. at 140, 147–48, 186. Mr. Ramos-Castillo stated that he would go into the chicken coop in the morning and then spend time there in the afternoons, and would sometimes eat lunch there. Id. at 186, 209. He stated that he would hang out there with friends on the weekends, having drinks, sitting around and talking. Id. He reported spending over two hours there on a daily basis. Id. He kept an old air-conditioner-a swamp cooler-in the coop. Id. at 187. He testified that the individuals to whom he rented the other trailers on his property knew that they could not go into his chicken coop because it was his area that he had fenced off and gated. Id. at 172. He stated that he considers his chickens to be his pets, that he has been raising chickens since the age of 10, and that he would breed them. Id. at 183–84, 186.

         SUPPLEMENTAL FRANKS ARGUMENT

         In Mr. Ramos-Castillo’s supplemental Franks argument in support of his motion to suppress, he argues that the evidence seized pursuant to the warrant must be suppressed because the affidavit in support of the warrant application contained material omissions and misrepresentations. Doc. 77 at 1. He first argues that the Affiant, Agent Godier, omitted relevant and material information about the informant, Leon Salazar, including his criminal history and promises made to him by law enforcement. Id. at 6–10. He also argues that law enforcement failed to corroborate the information provided by Mr. Salazar. Id. at 10–14. Additionally, he argues that the Affiant omitted information regarding Mr. Salazar’s September 14, 2018 recantation of statements made on September 11, 2018. Id. at 14–15. Finally, Mr. Ramos-Castillo argues that the Good Faith Exception does not apply in this case. Id. at 15–17.

         In its Response, the government argues that the Court should disregard Mr. Ramos-Castillo’s supplemental argument because it is procedurally defective as he failed to request the proper remedy under Franks: a hearing. Doc. 80 at 1. The government nevertheless maintains that Mr. Ramos-Castillo has not made the requisite “substantial preliminary showing” for a Franks hearing, and further argues that the affidavit still establishes probable cause even if the alleged material omitted information is included. Id. The government in turn addresses each of Mr. Ramos-Castillo’s claims of omitted information. Id. at 6–13.

         In his Reply, Mr. Ramos-Castillo requests that the Court hold an evidentiary hearing pursuant to Franks, and then suppress all evidence. Doc. 81 at 3. He again argues that the material omissions in the affidavit vitiate probable cause in the warrant. Id.

         I. Legal Standard

         a. Franks v. Delaware

         In Franks v. Delaware, the Supreme Court determined that a defendant may challenge the veracity of a search warrant under the Fourth Amendment under certain circumstances. 438 U.S. 154, 155–56 (1978). First, to merit a hearing, a defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth” was included in the warrant affidavit. Id. The Tenth Circuit has held that this rule applies to omissions as well as affirmative misstatements, if the omissions are “so probative they would vitiate probable cause.” DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990) (citing Stewart v. Donges, 915 F.2d 572, 582 n. 13 (10th Cir. 1990)). There is a presumption of validity for an affidavit supporting a search warrant. Franks, 438 U.S. at 171. Nevertheless, “recklessness may be inferred from omission of fact which are ‘clearly critical’ to a finding of probable cause.” DeLoach, 922 F.2d at 622 (citing Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990)) (citation omitted). However, a challenge to the affidavit must be “more than conclusory”:

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 material witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.

Franks, 438 U.S. at 171. The veracity inquiry is to focus only on the affiant and not any nongovernmental informant. Id. The Court in Franks noted that truthfulness in the affidavit does not require that every single fact is “necessarily correct” but rather that “the information put forth is believed or appropriately accepted by the affiant as true.” Id. at 165. Furthermore, courts have noted that there is no rule requiring the affiant to include “every shred of known information” in a warrant affidavit, and “the omission of a particular detail, without more” is insufficient to meet the requirement under Franks. United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015) (citing United States v. Colkley, 899 F.2d 297, 300–01 (4th Cir. 1990)). Furthermore, a “failure to investigate a matter fully, to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for the truth.” Id. (quoting Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (citation and internal quotations omitted)). The Tenth Circuit has noted that the defendant should offer “evidence that the allegations of the affidavit are false” and that speculation alone will not suffice. United States v. Long, 774 F.3d 653, 662 (10th Cir. 2014).

         Second, if the above requirements are met, and if, when the challenged material is set aside (or the omitted material is considered), the information in the warrant affidavit nonetheless supports a finding of probable cause, no Franks evidentiary hearing is required. Franks, 438 U.S. at 171–72. However, if without the challenged content (or considering the omitted content) a finding of probable cause is not supported, then the defendant is entitled to a Franks hearing under the Fourth and Fourteenth Amendments. Id. at 172.

         b. Probable Cause

         Probable cause is required to support a search warrant. United States v. Biglow, 562 F.3d 1272 (10th Cir. 2009). Probable cause to issue a search warrant exists if the supporting affidavit provides facts sufficient to “lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime.” United States v. Sanchez, 555 F.3d 901, 914 (10th Cir. 2009) (citing United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998)). This requires more than a “mere suspicion” but does not require evidence sufficient to convict. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). A magistrate judge who receives a warrant application must determine whether probable cause exists by making a “practical, common-sense decision based on the totality of the circumstances as set forth in the affidavit.” Sanchez, 555 F.3d at 914. This determination should consider the totality of the circumstances including the “veracity” and “basis of knowledge” of persons supplying information. Illinois v. Gates, 462 U.S. 213, 238–39 (1983). No. single factor is determinative, and courts may not engage in a “divide-and-conquer” analysis to determine if probable cause existed.” United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (citing United States v. Arvizu, 534 U.S. 266, 274 (2002) (stating that the factors may not be considered in isolation from one another)).

         The Supreme Court has recognized that “[r]easonable minds frequently may differ” with respect to finding probable cause in an affidavit, but the preference for warrants is “most appropriately effectuated by according ‘great deference’ to a magistrate’s determination.” United States v. Leon, 468 U.S. 897, 914 (1984) (citation omitted). Reviewing courts should afford a magistrate’s probable cause determination great deference, unless there is no “substantial basis for concluding that probable cause existed.” Danhauer, 229 F.3d at 1006 (quoting Rowland, 145 F.3d at 1204 (quotations omitted)); see also United States v. Sharbutt, 120 F. App’x 244, 248 (10th Cir. 2005) (“[A] valid probable cause determination requires only a substantial basis to find that evidence of a crime was probably present in the place to be searched.”) (citation omitted). A substantial basis requires that “[s]ufficient information [] be presented to the magistrate to allow that official to determine probable cause, ” and the determination “cannot be a mere ratification of the bare conclusions of others.” Leon, 468 U.S. at 915 (citation omitted).

         Furthermore, deference does not preclude an inquiry into whether an officer knowingly or recklessly included false information in the affidavit on which the probable cause determination was based. Id. at 914. Courts must ensure that magistrate judges perform a “’neutral and detached’ function and not serve merely as a rubber stamp for the police.” Id. (quoting Aguilar v. Texas, 378 U.S. 108, 111 (1964)). Nevertheless, magistrate judges are permitted to draw “their own reasonable conclusions” as to the likelihood of evidence being found at a particular place based on the affidavit and the “practical considerations of everyday life.” Biglow, 562 F.3d at 1280.

         c. Good Faith Exception

         Even if the search warrant was not supported by probable cause, the evidence seized as a result of the execution of the search warrant should not be suppressed if the executing officer acted on an objective good-faith belief that the warrant was properly issued. Danhauer, 229 F.3d at 1006 (citing Leon, 468 U.S. at 922). When a court reviews the reasonableness of an officer’s reliance upon a search warrant, it should examine the underlying documents to determine whether they are “devoid of factual support.” Id. (quoting United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993)). A court should consider “all of the circumstances, assume that the officers have a reasonable knowledge of what the law prohibits, and determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient.” United States v. Beltran-Lopez, No. CR 10-2309 LH, 2010 WL 11618908, at *7 (D.N.M. Dec. 6, 2010) (citing United States v. Tisdale, 248 F.3d 964, 972 (10th Cir. 2001)). The ultimate question is, under an objective standard, whether a reasonably well trained officer would have known that the search was illegal despite the magistrate‚Äôs ...


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