United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.
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.
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.
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).
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.
Veracity of the CI
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. ...