Opinion
3:23-cr-00007-WHO-1
09-05-2023
UNITED STATES OF AMERICA, Plaintiff, v. TIZEYAH OBRYANT, Defendant.
ORDER DENYING MOTION TO SUPPRESS
Re: Dkt. No. 29
WILLIAM H. ORRICK, UNITED STATES DISTRICT JUDGE
Defendant Tizeyah Obryant was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now moves to suppress evidence of the firearm as the fruit of an unlawful search and also moves for a Franks hearing. Because the search warrant affidavit demonstrated probable cause that evidence of a crime would be found at the location searched, and because the attesting officer did not intentionally or recklessly make false or misleading omissions in the warrant, both motions are denied.
BACKGROUND
On April 13, 2022, there was a shooting on the 100 block of Kiska Road in San Francisco, California. Affidavit of Officer Christopher N. Leong (“Affidavit”) [Dkt. No. 29-3] at -175. Video surveillance footage, reviewed by San Francisco Police Department (“SFPD”) Officers Christopher Leong and “Officer Coyne,” showed a gray Honda CR-V pulling out of a parking spot at 136 Kiska to follow another car, and then showed the front passenger in the CR-V rolling the window down and shooting a gun several times at the other car in front of 124 Kiska. Id. at -17577. Using surveillance cameras and records checks, SFPD Officers Leong, Coyne, and Ochoa determined that the driver of the CR-V was Norea Payton, and the passenger and shooter was Anamaria Keresoma. Id. at -175-76.
Officer Leong then submitted an application for a search warrant to the Honorable Susan M. Breall of the San Francisco Superior Court, attaching an affidavit attesting to probable cause. See id. at -173-82. The affidavit stated that the Honda CR-V was registered to Keresoma at [Redacted] and that “Keresoma has a listed address of [Redacted] via California Driver's License [number] (as of 10-30-2017).” Id. at 175-76. On April 18, 2022, Judge Breall signed the warrant authorizing the search of [Redacted] as well as an address associated with Payton. Id. at -173, -178. On April 19, 2022, officers served the warrant on the CR-V and at Payton's address, seizing a loaded handgun. Arrest Warrant for Tizeyah Obryant (“Arrest Warrant”) [Dkt. No. 295] at -164.
Subsequently, on April 26, 2022, SFPD officers began conducting surveillance on [Redacted] and noticed a man-identified as the defendant, Tizeyah Obryant-exiting the residence and entering a rideshare vehicle. Id. At the time, Obryant was a suspect in a separate shooting that occurred on April 4, 2022, near 11 Bridgeview in San Francisco. Id. at -160-64. The officers stopped the rideshare vehicle to detain Obryant and conducted a pat down search based on “the fact [that] he was a potential suspect in a shooting.” Id. at -164. They seized his house and vehicle keys and “responded to [Redacted] to serve the search warrant . . . transporting] OBRYANT to [Redacted].” Id.
In a declaration attached to this present motion, Obryant explained that he was at [Redacted] because [Redacted], the woman he has been dating since 2018, resided there with their then-two-year-old daughter Declaration of Tizeyah Obryant (“Obryant Decl.”) [Dkt. No. 29-6] ¶¶ 2-3.
Upon arrival, the officers executed the search warrant related to Keresoma for [Redacted] and found two firearms, which were later connected to Obryant through DNA matching. Id. at -164-65. The officers also “conducted a probable cause search” of Obryant's car “based on the fact [that] his was the vehicle believed to be used in the shooting on 04/06/2022.” Id. at -164. Obryant subsequently denied involvement in either shooting. Id.
Obryant was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Dkt. No. 1]. He now moves to suppress the evidence of the firearms seized during the search of [Redacted]. (“Mot.”) [Dkt. No. 29]. The government opposed. (“Oppo.”) [Dkt. No. 30]. Obryant replied. (“Repl.”) [Dkt. No. 33]. Obryant also filed a supplemental brief “based on recently discovered information.” (“Supp. Br.”) [Dkt. No. 34]. I held a hearing at which Obryant, his counsel, and counsel for the government appeared.
LEGAL STANDARD
I. MOTION TO SUPPRESS
The Fourth Amendment to the United States Constitution, which protects against unreasonable searches and seizures, provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. “A search warrant affidavit will demonstrate probable cause ‘if, under the totality of the circumstances, it reveals a fair probability that contraband or evidence of a crime will be found in a particular place.'” Blight v. City of Manteca, 944 F.3d 1061, 1066 (9th Cir. 2019) (quoting United States v. Celestine, 324 F.3d 1095, 1102 (9th Cir. 2003)); see also USA v. Alvarez, No. 3:20-CR-00086-WHO-1, 2020 WL 4701179, at *3 (N.D. Cal. Aug. 13, 2020) (same). “Probable cause determinations are ‘commonsense, practical' questions, and a ‘fair probability' is less even than a preponderance of the evidence.” United States v. Flores, 802 F.3d 1028, 1044 (9th Cir. 2015) (quoting United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc)).
“Probable cause to believe that a suspect has committed a crime is not by itself adequate to secure a search warrant for the suspect's home.” United States v. Kvashuk, 29 F.4th 1077, 1085 (9th Cir. 2022), cert. denied, 143 S.Ct. 310 (2022) (citation omitted). “But ‘the nexus between the items to be seized and the place to be searched' can rest on ‘normal inferences as to where a criminal would be likely to hide' evidence of his crimes.” Id. (quoting United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976) (per curiam)); see also Gourde, 440 F.3d at 1071 (“[A] probable cause determination may be based in part on reasonable inferences.” (citing Illinois v. Gates, 462 U.S. 213, 240 (1983)). “Probable cause to believe that a person conducts illegal activities in the place where he is to be searched is not necessary; the proper inquiry is whether there was probable cause to believe that evidence of illegal activity would be found in the search.” Kvashuk, 29 F.4th at 1086 (quoting United States v. Elliott, 322 F.3d 710, 716 (9th Cir. 2003)).
“Reviewing courts are obligated to give deference to a magistrate judge's determination of probable cause.” Alvarez, 2020 WL 4701179, at *3 (citing Gates, 462 U.S. at 236). “The magistrate judge's determination should be upheld as long as the affidavit provided ‘a substantial basis' for determining that probable cause existed.” Id. (citing Gates, 462 U.S. at 239); see also Kvashuk, 29 F.4th at 1085.
II. FRANKS MOTION
A hearing held under Franks v. Delaware, 438 U.S. 154 (1978) “determines ‘the validity of the affidavit underlying a search warrant.'” United States v. Norris, 942 F.3d 902, 909 (9th Cir. 2019) (quoting United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir. 2017)). In determining whether to grant a motion to hold a Franks hearing, courts assess whether a defendant has made “a substantial preliminary showing that: (1) ‘the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant,' and (2) ‘the false or misleading statement or omission was material, i.e., necessary to finding probable cause.'” Id. at 909-10 (quoting United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017)); see also Kleinman, 880 F.3d at 1038 (affirming the defendant must make a substantial preliminary showing of both prongs to warrant a hearing); United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000) (same). The defendant “bears the burden of proof on both elements.” Alvarez, 2020 WL 4701179, at *7 (citing United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002)). “To mandate an evidentiary hearing, the challenger's attack must be more than conclusory. . . . [Allegations of deliberate falsehood or of reckless disregard for the truth . . . must be accompanied by an offer of proof.” Id. (quoting Franks, 438 U.S. at 171).
For the first prong, the defendant must make a substantial preliminary showing that the statements or omissions are false or misleading, and that the affiant made the statements intentionally or recklessly. See United States v. Meling, 47 F.3d 1546, 1553-54 (9th Cir. 1995) (reasoning the defendant showed the initial affidavit contained omissions but not that they were made intentionally or recklessly); see also Bennett, 219 F.3d at 1124 (analyzing both the omission and the recklessness of the affiant). “A negligent or innocent mistake does not warrant suppression.” Perkins, 850 F.3d at 1116 (citing Franks, 438 U.S. at 171).
For the second prong, the “key inquiry” to determining whether an allegedly false statement or omission materially affected the probable cause determination “is whether probable cause remains once any misrepresentations are corrected and any omissions are supplemented.” Norris, 942 F.3d at 910 (citing Perkins, 850 F.3d at 1119). “‘Probable cause to search a location exists if, based on the totality of the circumstances,' a ‘fair probability' exists that the police will find evidence of a crime.” Id. (quoting Perkins, 850 F.3d at 1119).
DISCUSSION
I. MOTION TO SUPPRESS
As a preliminary matter, the government does not contest that Obryant had a cognizable Fourth Amendment interest in and reasonable expectation of privacy at [Redacted]. See Mot. 4:65:4; Repl. 2 n.1. “[T]o claim the protection of the Fourth Amendment,” a person must show that she “has a legitimate expectation of privacy in the invaded place.” Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). An overnight houseguest “has a legitimate expectation of privacy in his host's home,” including where the guest is provided “with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 98-99; see also United States v. Hunter, No. 18-CR-00542-RS-1, 2019 WL 2353121, at *2 (N.D. Cal. May 31, 2019) (finding legitimate expectation of privacy where defendant was a “regular overnight guest” “in a romantic relationship” with the homeowner).
Here, Obyrant's partner and daughter lived at [Redacted], he visited them frequently, he slept over “on multiple occasions” during which time he “had access to all rooms in the house and . . . parked [his] vehicle there,” he purchased food and clothes for his daughter to use at the residence, he “kept clothing and personal belongings” there, and he often commuted from [Redacted] to his job. See Obryant Decl. ¶¶ 2-7. This is sufficient to establish that Obryant, as an overnight guest, had a reasonable expectation of privacy in [Redacted] such that the protections of the Fourth Amendment apply. See Olson, 795 U.S. at 98-99; Hunter, 2019 WL 2353121, at *2.
A. Probable Cause
Obryant argues that the search of [Redacted] was unlawful because the affidavit in the search warrant did not establish probable cause to search that residence, though he does not contest that there was probable cause to conclude that Keresoma was linked to April 13 shooting. See Mot. 5:7-6:15. According to Obryant, because the affidavit did not explicitly state that Keresoma resided at [Redacted], and did not otherwise establish a nexus between the location and the alleged crime, there was no “substantial basis” from which to conclude probable cause existed to search the residence.
Based on the “totality of the circumstances” outlined in the affidavit, there was “a fair probability” that evidence of the April 13 shooting would be found in [Redacted]. See Blight, 944 F.3d at 1066. The affidavit provided that the officer observed a passenger later identified as Keresoma shooting the gun; the vehicle carrying the shooter and driver was registered to Keresoma; Keresoma listed her address on an official government document as [Redacted]; the officers regularly saw Keresoma's vehicle parked near 136 Kiska and the shooting occurred outside 124 Kiska, which are within the same block as [Redacted]; and there was significant gang activity, including regular “violent activity,” in the vicinity of the shooting and [Redacted]. See Affidavit at -175-77. That is more than enough to connect Keresoma, [Redacted], and the alleged shooting: it establishes Keresoma's connection with the residence (on an official government document), shows the proximity of the residence to the shooting, and shows that Keresoma's car-used in the shooting-was often seen near the residence.
Obryant asserts that probable cause to believe an individual resides in a location cannot be established from DMV records alone, particularly one dated four years before the warrant. See Mot. 5:7-6:15. I am persuaded by the reasoning of Esteem v. City of Pasadena, where a court in the Central District clarified that the proper question is not the “staleness” of the DMV records, but rather whether there was probable cause to believe the individual continued to live at the house. No. CV04-662-GHK (MANX), 2007 WL 4270360, at *5 (C.D. Cal. Sept. 11, 2007). Second, the cases discussed by the parties each found probable cause that an individual resided at the search location where there was a DMV record and some additional fact-though neither provides the clear rule sought by Obryant, that DMV records alone are never sufficient. See Id. (finding probable cause that the individual resided as the location to be searched, where the address was listed in his DMV records and Field Interview Cards showed that he told police six times he lived there); United States v. Gibson, No. CR 11-00734 WHA, 2012 WL 1123146, at *4, 6 (N.D. Cal. Apr. 3, 2012) (applying the rule for warrantless probation searches that requires an officer to have probable cause to believe the probationer lives in the search location, and finding probable cause based on DMV records, a criminal history report, and the officer's observations that the defendant spent time nearby). And third, here the affidavit does cite supporting facts in addition to the DMV records-Keresoma's car was regularly seen on the same block as [Redacted], and the crime also happened on that same block, both of which Obryant failed to address in his motion or at the hearing. Though perhaps less strong than the Field Interview Cards in Esteem and the criminal history report in Gibson, these facts and observations sufficiently connect [Redacted] with both Keresoma and the alleged crime. They are sufficient to establish probable cause that Keresoma lived at [Redacted] and that the location would hold evidence of the shooting. See Blight, 944 F.3d at 1066 (looking to the “totality of the circumstances” in the affidavit to establish probable cause rather than singling out one fact); see also District of Columbia v. Wesby, 583 U.S. 48, 60 (2018) (requiring courts to consider “the whole picture” presented by the affidavit (citation omitted)).
Obryant asserts in reply that the government's basis for probable cause improperly relies on a California statutory requirement that individuals must notify the DMV within ten days of changing addresses. See Cal. Veh. Code § 13007. This statutory rationale is not in the “four corners” of the affidavit and so was not considered by Judge Breall when assessing probable cause, so neither do I consider it here. See Crowe v. Cnty. of San Diego, 608 F.3d 406, 434 (9th Cir. 2010).
In discussing the Franks motion, Obryant points out that the affidavit cited two prior police reports, one of which provided [Redacted] as Keresoma's address. Infra Part II. That report parallels the criminal history report Gibson in terms of supporting that Keresoma lived at the searched address-though I do not consider it in the probable cause assessment because its facts were not specifically included in the affidavit. See Crowe, 608 F.3d at 434.
At any rate, “[d]irect evidence linking criminal objects to a particular site is not required” to establish a fair probability of finding evidence at that location as required for probable cause. United States v. Parks, 285 F.3d 1133, 1142 (9th Cir. 2002) (citation omitted); Elliott, 322 F.3d at 716 (“[T]he proper inquiry is whether there was probable cause to believe that evidence of illegal activity would be found in the search.” (citing Gates, 462 U.S. at 235)); cf. Liston v. Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997), as amended (Oct. 9, 1997) (explaining that, where an affidavit did not connect the house to the crime, “probable cause to search the residence . . . depended entirely on the strength of the evidence that [the individual] currently resided at that address” (emphasis omitted)).
Rather, the issuing judge looks to “the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide” evidence or contraband. Parks, 285 F.3d at 1142 (citation omitted); United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985) (same); see also Kvashuk, 29 F.4th at 1085 (“‘[T]he nexus between the items to be seized and the place to be searched' can rest on ‘normal inferences as to where a criminal would be likely to hide' evidence of his crimes.” (citation omitted)); Spearman, 532 F.2d at 133 (affirming probable cause finding despite no “direct observation” connecting the crime to the location because affidavits “must be interpreted in a commonsense fashion” including by looking to the type of crime, nature of items, opportunity for concealment, and normal inferences about hiding stolen property). Here, the crime was a shooting; the items sought were firearms and related instrumentalities and documents of ownership, see Affidavit at -177-78, which are small and easily movable; and it would be “normal” and reasonable for the magistrate to infer that a suspect may hide such small, valuable, and important items in their home.
Given the “totality of the circumstances,” the affidavit provided a substantial basis from which to conclude there was a fair probability that evidence or contraband related to the April 13 shooting would be found at [Redacted]. See Blight, 944 F.3d at 1066. Accordingly, there was probable cause to conduct the search.
B. Good Faith Exception
If any aspect of the warrant were deficient, so long as the officers' reliance on the warrant in their execution of the search was “objectively reasonable,” then the “‘good faith' exception to the exclusionary rule” applies. United States v. Barnes, 895 F.3d 1194, 1201 (9th Cir. 2018) (quoting United States v. Leon, 468 U.S. 897, 922, 924 (1984)). The good faith exception itself has four exceptions for which “the officer will have no reasonable grounds for believing that the warrant was properly issued.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (quoting Leon, 468 U.S. at 922-23). “Three of the four situations focus on warrants with defects that should be immediately apparent to law enforcement officials, such as warrants that are ‘so facially deficient . . . that the executing officers cannot reasonably presume it to be valid,' warrants resulting from recklessly or knowingly misleading the issuing judge, or warrants that are the product of ‘bare bones affidavits.'” Barnes, 895 F.3d at 1201 (quoting Underwood, 725 F.3d at 1085). “The fourth situation is where the judge wholly abandons his or her judicial role.” Id. (quotation marks omitted) (quoting Underwood, 725 F.3d at 1085).
The officers' reliance on the warrant was reasonable for all the reasons addressed above: the warrant outlines the facts of the shooting, explains the connection with Keresoma and her vehicle, provides a sufficient nexus between the residence and Keresoma as well as the shooting, and therefore establishes a fair probability that evidence of the shooting will be found at the residence.
None of the exceptions to the good faith exception apply here. See Barnes, 895 F.3d at 1201. First, the warrant is neither “facially deficient” nor “bare bones”-as discussed, the affidavit provides a sufficient factual basis to connect Keresoma, the shooting, and [Redacted], providing the executing officers with a reasonable basis to presume validity. Second, as addressed infra Part II, Officer Leong did not recklessly or knowingly mislead Judge Breall in obtaining the warrant. And finally, there are no allegations that Judge Breall abandoned her judicial role in authorizing the warrant; the record supports finding that she carefully considered the statements and the basis for probable cause.
Accordingly, even if there were not probable cause to search [Redacted], the good faith exception would apply because it was objectively reasonable for the officers to rely on the warrant in executing the search. The evidence will not be excluded and the motion to suppress is DENIED.
II. FRANKS
Obryant also requests a Franks hearing, arguing that Officer Leong acted intentionally and recklessly by omitting from the affidavit that he knew Keresoma did not live at [Redacted]. But Obryant does not make a “substantial preliminary showing” of either prong of the Franks standard. Norris, 942 F.3d at 909-10.
First, Obryant does not show that Officer Leong intentionally or recklessly omitted information from the warrant or that any omissions were false or misleading. See id.; Meling, 47 F.3d at 1553-54 (requiring that the defendant make a substantial preliminary showing that the statements or omissions were false or misleading and made intentionally or recklessly). Obryant notes that the affidavit refers to two police reports, references that were used to connect Keresoma with the driver of the car during the April 13 shooting and to establish that she was his girlfriend. Affidavit at -176. Neither report was attached to the affidavit, but both were submitted by the parties for this motion. One report, dated September 2020, refers to Keresoma as a “witness” and lists [Redacted] as her home address and the location of the occurrence (it also lists [Redacted] as the home address for two other individuals in the report). [Dkt. No. 29-4]. The other report, dated April 2020, refers to Keresoma as a “victim” and lists [Redacted] as her home address and the location of the occurrence. [Dkt. No. 30-3]. Obryant argues that by failing to tell the judge that Keresoma listed [Redacted] as her address in the September 2020 report, the officer intentionally or recklessly omitted information, and those omissions were misleading.
But the affidavit specifically stated that the vehicle carrying the driver and shooter was “registered to Anamaria Keresoma out of [Redacted].” Affidavit at -175. Leong did not omit any mention of this second address from the affidavit, nor did he shy away from the fact that Keresoma was affiliated with two different residential addresses-which strongly suggests that Leong attempted to provide the judge as much information as possible and counsels against finding that the omission of specific information from the September 2020 report was intentional or reckless. See Perkins, 850 F.3d at 1116 (distinguishing between intentional or reckless choices and “negligent or innocent mistake[s]”). And because the judge was informed that Keresoma had listed two different addresses on government documents-and still found probable cause to search [Redacted]-it was not misleading to omit a second mention of the same address.
Obryant points out that the September 2020 police report provided more recent information than did Keresoma's driver's license, which was updated in 2017-but the affidavit says that the Honda CR-V was registered to [Redacted] and “had a temporary license plate,” from which it would be reasonable to infer that the car was new and recently registered to [Redacted], as counsel conceded at the hearing. In other words, the affidavit did contain other information recently linking Keresoma and [Redacted]|, yet the judge still found probable cause to search [Redacted] based on the driver's license record (and other indicia of probable cause, as discussed below). It was not misleading, then, to omit additional details from the September 2020 report about [Redacted]. See Meling, 47 F.3d at 1553-54.
For that reason, Obryant's “recently discovered evidence” does not change the probable cause finding. See Supp. Br. The submitted document shows that Keresoma listed [Redacted] as her residential address on her registration for the CR-V on March 25, 2022. See id Ex D. But besides providing a specific date, the exhibit provides no more information than what Judge Breall already had, because she was told that the car was registered to [Redacted] and was registered recently. It was not misleading, then, to omit this cumulative information from the affidavit.
For the same reason, the omission of the information from the September 2020 police report was not “material”; probable cause remains even if the affidavit were supplemented with the requested information. See Norris, 942 F.3d at 909-10; see also Crowe, 608 F.3d at 435 (“A misrepresentation based on an omission is material only where the omitted facts ‘cast doubt on the existence of probable cause.'” (citation omitted)). As discussed, the affidavit provided that an officer saw Keresoma as the passenger in the vehicle and that the passenger was the shooter, that the vehicle was registered to Keresoma, that Keresoma's vehicle was regularly parked near 136 Kiska and the shooting occurred around 124 Kiska-both of which were physically proximate to [Redacted]-that there is regular gang activity and “violent activity” in the vicinity of the shooting and [Redacted], and that Keresoma listed her address on a government document as [Redacted]. See Affidavit at -175-77. This information indisputably connects Keresoma, [Redacted], and the shooting. Informing the judge that Keresoma again identified her residence as [Redacted] does not affect the fact that the shooting occurred within a block of [Redacted] and that her car was regularly parked on that same block, nor does it change that she registered [Redacted] as her home address with the DMV. Accordingly, even if the judge had been told of the September 2020 report, under the totality of the circumstances there was still a fair probability that [Redacted] held evidence of the crime. See Norris, 942 F.3d at 910.
The government points out that Keresoma recently renewed her license and again listed [Redacted] as her address-while that supports the finding that [Redacted] is indeed her residence, it does not affect the probable cause determination, which looks solely “to the information and circumstances contained within the four corners of the underlying affidavit.” Crowe, 608 F.3d at 434.
Therefore, Obryant fails to meet his burden to make a substantial preliminary of either prong of the standard, see Kleinman, 880 F.3d at 1038; Alvarez, 2020 WL 4701179, at *7, and his request for a Franks hearing is DENIED.
CONCLUSION
For those reasons, the motion to suppress and motion for a Franks hearing are DENIED. The next status conference is set for October 5, 2023, at 1:30 p.m. The Court assumes that it will set trial at that hearing absent a change of plea.
IT IS SO ORDERED.