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United States v. Johnson

United States District Court, D. New Mexico

October 8, 2019



         Defendant David Johnson filed a MOTION TO SUPPRESS THE SEARCH WARRANT AND REQUEST FOR EVIDENTIARY HEARING (Doc. No. 60) (“Motion”), challenging the veracity of the affidavit supporting the warrant that authorized the search of Defendant's apartment. The Motion is fully briefed. See UNITED STATES' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO SUPPRESS THE SEARCH WARRANT AND REQUEST FOR EVIDENTIARY HEARING (Doc. No. 62) (“Response”); DEFENDANT'S REPLY IN SUPPORT OF HIS MOTION TO SUPPRESS THE SEARCH WARRANT AND REQUEST FOR EVIDENTIARY HEARING (Doc. No. 70) (“Reply”). The Court granted the United States leave to file UNITED STATES' SURREPLY REGARDING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE PUSUANT TO FRANKS (Doc. No. 77) (“Surreply”). See Doc. No. 76. Defendant asserts that the warrant affidavit contained false statements and that the affiant made those statements recklessly or intentionally. He further asserts that absent those false statements, the affidavit is insufficient to support probable cause. Accordingly, Defendant claims he is entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978). For the reasons stated below, the Court will deny Defendant's request for a Franks hearing.


         On May 23, 2018, a New Mexico Second Judicial District Court Judge signed a search warrant for the eastern most apartment on the second floor of the Zuni Princess Apartments, located at 7301 Zuni Rd SE, Albuquerque, NM 87108. Doc. No. 60-2 The judge issued the warrant based on an affidavit submitted by Albuquerque Police Department (“APD”) Detective D. Irwin. Doc. No. 60-1. In the affidavit, Detective Irwin averred that he was part of the Central Narcotics Unit of the APD Special Investigations Division, and that he was experienced in the investigation of felony narcotics crimes, including undercover investigations involving the use of confidential informants. Id. at 1.

         Detective Irwin stated in the affidavit that a confidential informant (“CI”) had contacted him within the last three weeks and informed him that the CI could purchase heroin from a black male who lived in the easternmost apartment on the second floor at 7301 Zuni Blvd SE. Id. at 2. Detective Irwin conducted two controlled buys using the CI, the second within the 72 hours preceding his application for the warrant. Id. He stated that before each of the controlled buys he searched the CI for money or drugs and had found none. Id. Detective Irwin drove the CI to the apartment and then gave the CI money to purchase the heroin. Id. Detectives watched the CI walk from Detective Irwin's vehicle to the easternmost apartment on the second floor, knock and enter, and then emerge after a few minutes and return to Detective Irwin's undercover vehicle. Id. After re-entering the vehicle on each occasion, the CI gave Detective Irwin a plastic baggie containing a brown substance that later field tested positive for heroin. Id. Detective Irwin then searched the CI again and found no more drugs or money. Id. Both times, the CI told Detective Irwin that “Daywoo” sold the heroin to the CI. Id.

         Detective Irwin stated that he identified “Daywoo” as Defendant through “independent investigation, ” and that the CI positively identified Defendant through a photograph. Id. He also noted that the CI voluntarily approached the officers to offer information on drug trafficking, and that the CI was being paid for the information and knew that false statements could result in termination as a CI and possible prosecution. Id. Detective Irwin stated that information from the CI had been corroborated and demonstrated to be factual. Id.

         Based on these facts, Detective Irwin requested a search warrant for the easternmost apartment on the second floor of the Zuni Princess Apartments at 7301 Zuni Rd SE, Albuquerque, NM 87108. Id. at 1. He stated that the view of the apartment to be searched was obstructed by a tree when looking from Zuni, but that its door faced south, was painted “read, ” and appeared to be made of wood. Id. The apartment building was tan stucco with red trim, a red roof, and a brown sign in the southwest corner of the parking lot that read “Zuni Princess Apartments, 7301 Zuni S.E.” in white letters. Id. Detective Irwin requested permission to search and seize “[a]ny and all firearms, ammunition, casings, and firearms equipment, ” among other things. Id.

         On May 31, 2018, APD officers executed the search warrant. See Return & Inventory, Doc. No. 60-3. Officers found Defendant and an unidentified female in the apartment. Officers did not locate any heroin or currency, but they found and seized methamphetamine, drug paraphernalia, scales, marijuana, and a firearm. Id. APD arrested Defendant at the time of the search.

         On July 18, 2018, a New Mexico state grand jury indicted Defendant on charges of trafficking by possession with intent to distribute and possession of a firearm or destructive device by a felon. Doc. No. 60-12. On July 25, 2018, the United States charged Defendant in federal court with being a felon in possession of a firearm and ammunition. See Criminal Complaint, Doc. No. 1. The State subsequently dropped the charges against Defendant. On August 23, 2019, Defendant moved to suppress the evidence obtained during the search of his apartment and requested a hearing on the veracity of the search warrant affidavit. Doc. No. 60.

         Legal Standard

          The Fourth Amendment provides that “no [w]arrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “[P]robable cause to issue a search warrant . . . exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime.” United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998). But when, as here, a defendant challenges the truthfulness of facts contained in the warrant affidavit, courts must undertake an analysis of the effect of the allegedly false information. Under Franks, when a defendant challenges the veracity of an affidavit supporting a search warrant, courts assess the need for a hearing using a two-prong test. Franks, 438 U.S. at 155. In such cases, a hearing should be held if (1) “the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, ” and (2) “the allegedly false statement is necessary to the finding of probable cause.” Id. at 155-56. Importantly, “[t]he truthfulness at issue is that of the affiant, not the affiant's sources (other than government employees, see United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010)); and honest errors by the affiant are not grounds for suppression.” United States v. Sanchez, 725 F.3d 1243, 1247 (10th Cir. 2013); see also Campbell, 603 F.3d at 1228 (explaining that “negligence or innocent mistakes are insufficient to justify the exclusion of evidence.”). Indeed, “[not] every fact recited in the warrant affidavit [must] necessarily [be] correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily.” Sanchez, 725 F.3d at 1247 (quoting Franks, 438 U.S. at 165).


         Defendant claims the affidavit included deliberately or recklessly misstated facts. Specifically, Defendant asserts that: (1) the affidavit does not contain sufficient information about the veracity of the CI; (2) the two controlled buys described in the affidavit did not in fact occur; (3) the street address of Defendant's apartment was incorrect in the warrant affidavit; (4) the geographic description of the apartment unit was not sufficiently particular; and (5) APD's failure to follow its Standard Operation Procedures (“SOPs”) supports a substantial showing that the search warrant affidavit contains intentional or recklessly false statements. Mot. at 9-16. The Court held a hearing on September 30, 2019. After considering the parties' arguments, the Court concludes that Defendant's request for a hearing on the veracity of the search warrant affidavit fails on the first prong of the Franks test.

         1. Veracity of the CI

         First, Defendant asserts that the CI's statements were uncorroborated and are insufficient to support probable cause. Mot. at 9. A probable cause determination includes an examination of the veracity, reliability, and basis of knowledge of the informant. See Campbell, 603 F.3d at 1234. “Generally, [courts] evaluate whether these factors as revealed by the facts in the affidavit create a fair probability that contraband or evidence of a crime will be found in a particular place on consideration of the totality of circumstances.” Id. ...

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