F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 17 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
No. 03-4166
FRIEDRICH PETER ARTEZ,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:01-CR-180-S)
Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellant.
Jeanne T. Lund, Draper, Utah, for Defendant-Appellee.
Before EBEL, ANDERSON, and SEYMOUR, Circuit Judges.
EBEL, Circuit Judge.
Friedrich Peter Artez (“Defendant”) was indicted for possession of an
unregistered short barrel shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871.
Defendant moved to suppress the shotgun as the fruit of an unlawful search of his
home. The district court granted Defendant’s motion to suppress, concluding that
the search warrant was invalid because not supported by probable cause and that
the good faith exception of United States v. Leon, 468 U.S. 897 (1984), did not
apply. The government appealed. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291, and we REVERSE the judgment of the district court and REMAND for
further proceedings.
BACKGROUND
In December 2000, Deputy Sheriff Scott Van Wagoner of the Salt Lake
County Sheriff’s Office was contacted by a confidential informant (“CI”) who
claimed to have information regarding an alleged methamphetamine dealer named
Fred Artez (“Defendant”). The CI drove with Van Wagoner and identified a
home located at 1127 East 9430 South in Sandy City, Utah as the home of
Defendant. The CI explained to Van Wagoner that he could not purchase
methamphetamine directly from Defendant but that he could purchase it from
Defendant through an unwitting informant (“UI”).
Van Wagoner verified that Defendant owned the home located at 1127 East
9430 South in Sandy City, Utah and that Defendant owned two of the vehicles
parked in front of the home. Van Wagoner also contacted the Sandy City
Neighborhood Narcotics Unit and learned that they had received a call within the
last two months from an unidentified male claiming that his wife was purchasing
methamphetamine from the residence at 1127 East 9430 South. Van Wagoner
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also discovered through the Sandy City records that several other people, all of
whom had narcotics-related criminal histories, lived at or frequented the
residence. One of these individuals had an active arrest warrant for possession of
drug paraphernalia. Van Wagoner also discovered that Artez had been arrested
twice, once for larceny and once for driving under the influence of alcohol.
With the CI’s assistance, Van Wagoner executed two controlled purchases
of methamphetamine. The two purchases were conducted within approximately
two weeks of each other and were accomplished in essentially the same manner.
Van Wagoner (either himself or with the assistance of another agent) searched the
CI and his or her vehicle for money and contraband. Finding none, Van Wagoner
gave the CI county funds, accompanied the CI to the residence of the UI, and
watched as the CI knocked on the front door and made contact with the UI. Van
Wagoner watched the UI exit the residence and get into the CI’s car, and he
followed the UI to 1127 East 9430 South. 1 Van Wagoner watched the UI exit the
vehicle, initiate contact with an occupant of the residence, and enter the
residence. After approximately twenty minutes, Van Wagoner watched the UI
exit the suspect residence and get into the vehicle, followed the UI back to his or
her home, and watched the UI enter his or her home. Van Wagoner then watched
1
The CI apparently waited at the UI’s home while Van Wagoner followed
the UI to the suspect residence.
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the CI exit the UI’s home. Van Wagoner followed the CI to a prearranged
location, where the CI handed Van Wagoner a quantity of suspected
methamphetamine and said that he or she had “purchased it from [Defendant]
through the unwitting.” Van Wagoner again searched the CI for money and
contraband and found nothing. Van Wagoner later field tested the substance to
verify that it was, in fact, methamphetamine.
Following the two controlled purchases, Van Wagoner conducted several
brief surveillances of the suspect residence, each of which lasted for
approximately thirty minutes. He noticed during these surveillances that several
people arrived and stayed for a short period of time. During his surveillance, he
stayed a distance away from the residence because the CI had informed him that
Defendant kept surveillance cameras outside his residence. Based on his training
and experience, Van Wagoner found the activity he observed indicative of
narcotics distribution.
Van Wagoner prepared an affidavit for a search warrant which relayed all
of this information. Van Wagoner also indicated in the affidavit that the CI was
an admitted narcotics user and that the CI had given Van Wagoner some details
about the pricing, packaging, and effects of methamphetamine, which convinced
Van Wagoner that the CI was knowledgeable about such things. Van Wagoner
stated in the affidavit that he considered the CI to be reliable because the CI had
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never been in custody and came forward out of his or her concern for the safety of
the community.
A warrant for the search of Defendant’s home was issued based on Van
Wagoner’s affidavit. 2 Officers conducted a search of Defendant’s home pursuant
to that warrant. They discovered and seized drug paraphernalia and quantities of
marijuana and methamphetamine. They also discovered and seized a short barrel
shotgun and a variety of other firearms. Based on this evidence, Defendant was
charged with possession of a short barrel shotgun in violation of 26 U.S.C.
§§ 5861(d) and 5871. Defendant moved to suppress the evidence. The district
court granted that motion, holding that the warrant was not supported by probable
cause and that the Leon good faith exception did not apply. The government
timely filed this appeal.
DISCUSSION
A. Probable Cause
1. Standards of Review
A magistrate judge’s task in determining whether probable cause exists to
support a search warrant “is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
2
The warrant also authorized a search of Defendant’s person, but only the
search of the home is at issue in this appeal.
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including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
“Finely-tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no place in the
magistrate’s decision.” Id. at 235.
A magistrate judge’s decision to issue a warrant is entitled to “great
deference.” Id. at 236; United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir.
2001). Accordingly, we need only ask whether, under the totality of the
circumstances presented in the affidavit, the magistrate judge had a “substantial
basis” for determining that probable cause existed. Gates, 462 U.S. at 238-39;
Tuter, 240 F.3d at 1295.
We review de novo the district court’s determination of probable cause and
review its findings of historical fact for clear error. Tuter, 240 F.3d at 1295.
2. Analysis
In Illinois v. Gates, the Supreme Court adopted a “totality of the
circumstances” test to determine when information from an anonymous or
confidential informant can establish probable cause. 462 U.S. at 238; accord
Tuter, 240 F.3d at 1295. The Court explained that an informant’s “veracity,
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reliability, and basis of knowledge are all highly relevant in determining the value
of his report.” Gates, 462 U.S. at 230 (internal quotations omitted). However, “a
deficiency in one [factor] may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some other indicia of
reliability.” Id. at 233. Specifically, “[w]hen there is sufficient independent
corroboration of an informant's information, there is no need to establish the
veracity of the informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th
Cir. 2000).
We conclude in this case that the information contained in the search
warrant affidavit sufficiently corroborated the confidential informant’s tip. We
address each of the corroborating items of evidence in turn.
a. The Controlled Purchases
A tip from an anonymous or confidential informant that narcotics are being
distributed at a particular location may be corroborated through the arrangement
of a controlled purchase at the suspect location. The common formalities
observed by police officers when conducting such controlled purchases are as
follows: the police search the informant (and his vehicle, if appropriate) for
money and contraband prior to the buy; give the informant money with which to
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purchase the narcotics; 3 transport the informant to the suspect residence (or
follow the informant to the residence); watch the informant enter the suspect
residence, disappear while inside the suspect residence, and emerge from the
suspect residence; search the informant upon exiting the suspect residence; and
receive the narcotics from the informant. See, e.g., Avery, 295 F.3d at 1165;
Cook, 949 F.2d at 292; United States v. Wood, 695 F.2d 459, 463 (10th Cir.
1982); United States v. Pinson, 321 F.3d 558, 560-61 (6th Cir. 2003), cert.
denied, 124 S. Ct. 292 (2003); United States v. Pennington, 287 F.3d 739, 742
(8th Cir. 2002); United States v. Genao, 281 F.3d 305, 307 (1st Cir. 2002); United
States v. McKinney, 143 F.3d 325, 327 (7th Cir. 1998); United States v. Gibson,
123 F.3d 1121, 1123 (8th Cir. 1997); United States v. Beck, 122 F.3d 676, 678
(8th Cir. 1997); United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997);
United States v. Smith, 9 F.3d 1007, 1009 (2d Cir. 1993); United States v. Harper,
802 F.2d 115, 120 (5th Cir. 1986); United States v. Rodgers, 732 F.2d 625, 627,
630-31 (8th Cir. 1984).
As these cases make clear, the absence of constant visual contact with the
informant conducting the transaction does not render a controlled purchase
insufficient, nor does the absence of an audio-recording of the transaction.
3
Some courts note that the money is marked, see, e.g., United States v.
Avery, 295 F.3d 1158, 1165 (10th Cir. 2002), and some do not, see, e.g., United
States v. Cook, 949 F.2d 289, 292 (10th Cir. 1991).
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In this case, the controlled purchases orchestrated by Van Wagoner
deviated from these common formalities only in the use of an unwitting informant
as an intermediary between the confidential informant and the suspect residence.
The use of an unwitting informant introduces an additional layer of uncertainty to
the transaction because it leaves open the possibility that the narcotics were
acquired not at the suspect residence but at the location where the confidential
and unwitting informants met before and after the transaction.
Nonetheless, we have approved the use of an unwitting informant in a
controlled purchase situation almost indistinguishable from the one at issue in this
case. In United States v. Richardson, an officer arranged a controlled purchase
using an unwitting informant as an intermediary between a known informant and
the suspect residence. 86 F.3d 1537, 1542-43 (10th Cir. 1996), abrogation on
other grounds recognized by United States v. Pearce, 146 F.3d 771, 774 (1998).
The known and unwitting informants arranged a transaction and designated a
meeting place. Richardson, 86 F.3d at 1542. The officer drove the known
informant to the meeting place and gave him money to purchase cocaine. Id. at
1542-43. The known informant then got into the unwitting’s truck. Id. at 1543.
Upon exiting the truck, the known informant informed the officer that he had
given the unwitting the money and that the unwitting was going to purchase
cocaine from the suspect residence. Id. at 1545. Meanwhile, surveillance officers
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watched the unwitting enter the driveway of the suspect residence, exit the
vehicle, disappear for twenty minutes, and return to his vehicle. Id. The
unwitting returned to the location where the known informant waited and gave the
cocaine to the known informant. Id. at 1543. We held that “the informant’s tip
was corroborated by a controlled narcotics purchase and the observation of Mr.
Richardson’s residence.” Id. at 1545.
Other courts have also approved the use of unwitting informants in
controlled purchases of narcotics. See, e.g., United States v. Jordan, 999 F.2d 11,
12-14 (1st Cir. 1993) (approving use of confidential informant and two
intervening unwitting informants in controlled purchase, even though affidavit did
not “exclude the possibility that [an informant] might have obtained the marijuana
at some place along the drug ‘buy’ route other than [the suspect] residence”);
United States v. Blackwood, 913 F.2d 139, 141 (4th Cir. 1990) (approving use of
confidential informant and intervening unwitting informant).
The two controlled purchases conducted in this case were conducted in a
similar manner to the controlled purchases in Richardson, 86 F.3d at 1542-43,
1545, and the other cases that have approved the use of intervening unwitting
informants. Each controlled purchase utilized at least one unwitting informant as
a middleman between the confidential informant and the suspect location, and
each involved a meeting between the confidential informant and the unwitting
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informant prior to the transaction. 4 Consistent with this authority, we conclude
that the two controlled purchases conducted in this case corroborated the
confidential informant’s tip that he or she, through an unwitting informant, was
able to purchase methamphetamine from Defendant’s residence.
Defendant makes much of the fact that the controlled purchases that
occurred in this case were not conducted pursuant to Mauriello’s Criminal
Investigation Handbook. For example, Defendant claims that the informants were
not in constant contact with Van Wagoner during the transactions, that Van
Wagoner failed to videotape or audiotape the transactions, and that the money
Van Wagoner gave the confidential informant was not marked. We have come
across no authority for the proposition that controlled purchases not conducted
precisely pursuant to that Handbook are therefore denied of corroborative value.
To the contrary, the authority supports our conclusion that controlled purchases
conducted as Van Wagoner conducted these controlled purchases corroborate a
4
The only distinction between Richardson and this case is that in
Richardson, the meeting between the informants occurred in the unwitting
informant’s truck, see 86 F.3d at 1545, and in this case the meeting between the
informants occurred in the unwitting informant’s house. We do not find this
distinction relevant. There is no indication in Richardson that, because the
meeting occurred in a vehicle instead of a house, the officers were able to observe
the meeting. See 86 F.3d at 1545. Accordingly, just as in this case, the manner in
which the controlled purchase was conducted in Richardson left open the
possibility that the narcotics transaction occurred during the meeting between the
informants, not at the suspect residence. Nonetheless, we held in Richardson that
the controlled purchase sufficiently corroborated the informant’s tip. Id.
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confidential informant’s tip that a particular location is being used to distribute
narcotics.
Defendant also objects that the two controlled purchases did not
corroborate the informant’s tip because they did not implicate Defendant
personally but at most implicated one of the several other individuals residing at
Defendant’s home. Defendant misunderstands the analysis governing the issuance
of a warrant for the search of a place. “The test is whether the facts presented in
the affidavit would warrant a man of reasonable caution to believe that evidence
of a crime will be found at the place to be searched.” United States v. Nolan, 199
F.3d 1180, 1183 (10th Cir. 1999) (emphasis added) (internal quotations omitted);
see also Gates, 462 U.S. at 238 (probable cause exists if affidavit demonstrates “a
fair probability that contraband or evidence of a crime will be found in a
particular place” (emphasis added)). The two controlled purchases that occurred
in this case supported Van Wagoner’s suspicion that methamphetamine would be
found at Defendant’s residence. Whether Van Wagoner did or did not have
reason to connect Defendant personally to the transactions is irrelevant to our
probable cause analysis.
In sum, we conclude that the two controlled purchases of methamphetamine
from Defendant’s residence helped corroborate the confidential informant’s tip
that the residence was utilized to distribute methamphetamine.
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b. Tip from a Second Informant
A tip from a second informant can also help corroborate information from a
confidential informant. United States v. Sturmoski, 971 F.2d 452, 455-56, 457-58
(10th Cir. 1992). When Van Wagoner contacted the Sandy City Neighborhood
Narcotics Unit after he received the confidential informant’s tip, he learned that
an anonymous informant had reported within the previous two months that his
wife was buying methamphetamine from Defendant’s home. Although we do not
know for certain that the anonymous tip came from an independent source, we
conclude that the anonymous tip did provide some additional corroboration of the
confidential informant’s tip.
c. Police Surveillance
Police surveillance which “show[s] an unusually high volume of visitors
briefly entering and leaving [a] residence, consistent with drug trafficking[,]” can
also corroborate information from a confidential informant that the residence is
being used to distribute narcotics. United States v. Corral, 970 F.2d 719, 727
(10th Cir. 1992). Van Wagoner conducted several brief surveillances of
Defendant’s residence, during which he observed several visitors staying for short
periods of time. Officer Van Wagoner was highly experienced in the matter of
drug trafficking, and he deemed this activity indicative of narcotics distribution.
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This information provided additional corroboration of the confidential
informant’s tip.
Defendant objects that Van Wagoner’s surveillances were not conducted in
accordance with Mauriello’s Criminal Investigation Handbook. For example, he
argues that Van Wagoner should have recorded the times of the visitors’ arrivals
and departures and, if possible, their names and descriptions. We agree that more
detailed information with respect to the number, identity, and description of
persons entering and exiting Defendant’s residence would have been helpful.
Nonetheless, we believe that Van Wagoner’s observation that a series of visitors
entered the residence and stayed for only a short period of time did provide some
additional corroboration of the confidential informant’s tip when interpreted in
light of Officer Van Wagoner’s extensive experience.
d. Narcotics Histories of Other Residents
Criminal history alone is not enough to support a finding even of
reasonable suspicion, much less probable cause. United States v. Sandoval, 29
F.3d 537, 542 (10th Cir. 1994). “If the law were otherwise, any person with any
sort of criminal record . . . could be subjected to a Terry-type investigative stop
by a law enforcement officer at any time without the need for any other
justification at all.” Id. at 543. However, criminal history, combined with other
factors, can support a finding of reasonable suspicion or probable cause. See
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United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000); United States v.
Myers, 106 F.3d 936, 939 (10th Cir. 1997); United States v. McCranie, 703 F.2d
1213, 1218 (10th Cir. 1983).
In this case, Van Wagoner reported in the search warrant affidavit that four
other individuals who either lived at or frequented the suspect residence had prior
convictions for narcotics-related offenses, including possession and possession
with intent to distribute. He also reported that one of the residents had an active
arrest warrant for possession of drug paraphernalia. This information further
corroborated the confidential informant’s tip that Defendant’s residence was
being used to distribute methamphetamine and that drugs or related contraband
was likely to be found at that location.
5. Summary
In sum, Van Wagoner reported five pieces of information in his search
warrant affidavit: (1) a tip from a confidential informant that methamphetamine
was being distributed at Defendant’s residence; (2) the successful execution of
two controlled buys of methamphetamine from the suspect residence; (3) a tip
from an anonymous informant to a different police unit that methamphetamine
was being distributed at Defendant’s residence; (4) the results of surveillance of
the suspect residence indicating a series of visitors staying for short periods of
time, consistent with drug trafficking activity; and (5) the narcotics-related
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criminal histories of four inhabitants or frequent visitors of the suspect residence,
including an active arrest warrant against one of these individuals for possession
of drug paraphernalia.
Certainly this information did not eliminate the risk that the confidential
informant was lying or was in error. That risk, however, need not be wholly
eliminated. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment, § 3.3(f), at 168 (3d ed. 1996). “Rather, what is needed is that the
probability of a lying or inaccurate informer has been sufficiently reduced by
corroborative facts and observations.” Id. (internal quotations omitted). Viewing
the totality of the circumstances, we conclude that the information contained in
the affidavit sufficiently reduced that probability. Accordingly, the affidavit was
sufficient to give the magistrate a “substantial basis” for determining the
existence of probable cause to search Defendant’s residence. See Tuter, 240 F.3d
at 1295. 5 6
5
Defendant also argued before the district court that the warrant was
unconstitutionally vague because, in addition to naming specific items to be
seized, the warrant also authorized seizure of the “fruits and/or instrumentalities
of the crimes of manufacturing a controlled substance and or distribution of a
controlled substance, and or possession of a controlled substance.” Although it is
not clear that Defendant continues that argument here because he discusses it in
only one sentence buried in his other argument, we conclude that this argument is
without merit. See Anderson v. Maryland, 427 U.S. 463, 479-82 (1976)
(approving warrant authorizing seizure of “other fruits, instrumentalities and
evidence of crime at this (time) unknown,” when phrase, read in context, was
(continued...)
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C. Franks v. Delaware 7
Under Franks v. Delaware, a defendant may request an evidentiary hearing
regarding the veracity of a search warrant affidavit. 438 U.S. 154, 171-72 (1978).
Before the defendant will be entitled to such a hearing, however, the defendant
must allege deliberate falsehood or reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof. Id. at 171. Affidavits of
witnesses should be provided to the court or their absence satisfactorily
explained. Id. Allegations of negligence or innocent mistake are insufficient. Id.
If these requirements are met, then the defendant must show that the remaining
content of the warrant affidavit is insufficient to support a finding of probable
5
(...continued)
limited to fruits and instrumentalities of particular crime).
6
United States v. Tuter and United States v. Danhauer, relied upon by the
district court below to support his order of suppression, are clearly
distinguishable. Tuter involved a search of defendant’s garage for bomb-making
materials. 240 F.3d at 1293-94. But the warrant there was based solely upon an
anonymous caller and the only corroboration was a fifteen-year old criminal
history of the defendant. Id. at 1294. In Danhauer, a confidential informant
stated that the defendant was cooking methamphetamine in his garage. 229 F.3d
at 1004. The only corroboration was defendant’s criminal history, and a positive
urine analysis test previously conducted on defendant’s wife. Id. Neither case
involved controlled buys, direct stake-outs revealing suspicious activity, extensive
drug records of multiple occupants of the house, and probable multiple tipsters of
criminal activity, all of which was present in the case before us.
7
Defendant raises a Franks argument only in conjunction with his
discussion of United States v. Leon. Given our previous discussion, we do not
address the Leon issue. We briefly discuss the Franks issue, however, because it
does potentially impact our Illinois v. Gates analysis.
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cause. Id. at 171-72. “The standards of deliberate falsehood and reckless
disregard set forth in Franks apply to material omissions, as well as affirmative
falsehoods.” Avery, 295 F.3d at 1166.
In this case, Defendant accuses Van Wagoner of intentionally or recklessly
mischaracterizing material facts in the search warrant affidavit and omitting
material facts from that affidavit. His allegations are insufficient to warrant a
Franks hearing. First, Defendant argues that Van Wagoner misrepresented that
the unwitting informant had personally interacted with Defendant. Van Wagoner
reported in the affidavit that “[t]he C.I. handed me a quantity of suspected
methamphetamine and said that he/she purchased it from [Defendant] through the
unwitting.” Defendant presented no evidence that this statement mischaracterized
the information the CI reported to Van Wagoner after the controlled purchase.
Moreover, it is immaterial whether the unwitting interacted with Defendant or
some other individual at the residence. See discussion supra Section A.2.a.
Second, Defendant suggests that Van Wagoner misrepresented that
Defendant maintained surveillance cameras outside his home. Van Wagoner
reported in the affidavit that “the C.I. indicates that [Defendant’s] home has
surveillance cameras.” Defendant presented no evidence that this statement
mischaracterized the information the CI reported to Van Wagoner.
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Third, Defendant accuses Van Wagoner of misrepresenting that the CI’s
decision to come forward was a genuine act of humanitarian concern. Van
Wagoner reported in the affidavit that “the confidential informant came forward
on his/her own out of concern for the safety and well being of the community.”
Defendant argues that the CI had “undoubtedly” been arrested and charged with
various narcotics-related crimes. Defendant presented no evidence to support this
allegation.
Fourth, Defendant argues that Van Wagoner omitted information that
Defendant operated an in-home business that caused the frequent traffic outside
his home and that Defendant rented the basement to an individual with a
narcotics-related criminal history. Franks, however, applies only to intentional or
reckless omissions from the affidavit. See Avery, 295 F.3d at 1166. Defendant
does not allege that Van Wagoner either knew this information or recklessly
failed to uncover the information.
Fifth, Defendant argues that Van Wagoner omitted details about
Defendant’s two prior arrests and omitted the fact that Defendant had recently
received a concealed weapons permit after an extensive background check. It is
true that Van Wagoner stated only that Defendant had been arrested twice before,
once for larceny and once for driving under the influence, but did not state that
the arrests occurred many years ago and did not result in convictions. It is also
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true that Van Wagoner did not mention Defendant’s background check in the
affidavit. However, Defendant has not demonstrated that these omissions were
intentional or reckless, nor has he demonstrated that the affidavit, with this
information, would have been insufficient to support a finding of probable cause.
Finally, Defendant argues that Van Wagoner omitted the fact that
Defendant had no narcotics-related criminal history and that all other adult
residents of Defendant’s home did have narcotics-related criminal histories.
These allegations are gross mischaracterizations of the record. The affidavit
expressly listed all other persons whom Van Wagoner had identified as residents
of the home and listed their narcotics-related criminal histories. He particularly
noted that “[a]ll four persons have arrest histories for possession of, possession
with intent to distribute or possession of narcotics paraphernalia.” Van Wagoner
separately listed Defendant’s criminal history, which involved no mention of
narcotics. In any event, it must again be emphasized that the warrant at issue was
to search the residence and it was not limited just to a search of this Defendant.
In sum, each of Defendant’s numerous allegations are either wholly
unsubstantiated by the record, flatly contrary to the record, or insufficient to
satisfy the Franks standard.
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CONCLUSION
We conclude that the warrant authorizing a search of Defendant’s home
was supported by probable cause. Accordingly, we REVERSE the judgment of
the district court granting Defendant’s motion to suppress the shotgun and
REMAND for further proceedings.
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