United States District Court, D. New Mexico
Erlinda O. Johnson Attorney for Mr. Ramos-Castillo.
Matthew T. Nelson, Kristopher N. Houghton Assistant United
MEMORANDUM OPINION AND ORDER
VAZQUEZ, UNITED STATES DISTRICT JUDGE.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Franks v. Delaware
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
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).
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.
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)).
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).
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.
Good Faith Exception
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’s