Opinion
2:10-cr-0119-GEB.
September 29, 2011
ORDER
Defendant filed a "Motion to Suppress Evidence" on April 4, 2011 and a "Motion for Hearing Pursuant to Franks v. Delaware" on June 23, 2011. (ECF Nos. 33, 46.) The motions were argued on September 2, 2011. For the reasons stated below, the motions are DENIED.
I. Motion to Suppress
Defendant argues in his suppression motion:
Evidence against [him] in this case was seized after a search of a vehicle incident to his arrest that occurred on January 21, 2010 in San Leandro, California, and in a search of his girlfriend's house at 378 Collins Court in Mountain House, California that same day. The arrest was made pursuant to an outstanding arrest warrant issued on January 15, 2010 purporting to establish "probable cause" to arrest [Defendant] for homicide. By the time [Defendant] was arrested six days later, however, any probable cause to arrest [Defendant] for homicide had dissipated — and Officer Bergeron, present at the time of [Defendant's] arrest and directing his arrest, knew such probable cause had dissipated. . . . In addition, Defendant seeks the suppression of the evidence found as the result of the search of 378 Collins Court, discovered pursuant to the execution of search warrant issued without probable cause. It is evident from the search warrant affidavit that no probable cause existed linking any contraband or other evidence related to a homicide with 378 Collins Court.
(Mot. to Suppress 2:17-24, 3:10-13.) The government opposes the motion.
A. Search Incident to Arrest
Defendant moves for suppression of evidence seized after a search of the vehicle he was in when he was arrested pursuant to a state arrest warrant; Defendant argues since the probable cause to arrest him had dissipated his arrest was unlawful and the evidence seized in the search incident to his arrest should be suppressed. Defendant contends: "the Oakland Police Department . . . was aware of new facts that dissipated any good faith belief that probable cause still existed to arrest [Defendant], despite the fact that an arrest warrant had issued [; and t]herefore, [his] arrest was in fact not predicated on probable cause." (Mot. to Suppress 3:2-5.) The Government counters that the probable cause supporting the arrest warrant did not dissipate merely because the District Attorney in Alameda County decided not to file murder charges against Defendant's alleged co-conspirator involved with the homocide. (Opp'n to Mot. to Suppress 2:13-15.)
On January 15, 2010, Homicide Sergeant James Gantt of the Oakland Police Department authored affidavits in support of probable cause to arrest Defendant and Marcus Jones (Defendant's alleged co-conspirator) in connection with the November 3, 2009 homicide of Earnest Prescott. Gantt's affidavits in support of a warrant to arrest each man are nearly identical and relay the same information. Based on Gantt's affidavits, arrest warrants were issued for Defendant and Jones on January 15, 2010.
On January 16, 2010, Jones was arrested; he was charged with drug charges and evasion on January 21, 2010; however, he was not charged in connection with Prescott's murder. On January 21, 2010, Defendant was arrested pursuant to the arrest warrant and the vehicle he was in searched incident to his arrest. Defendant seeks suppression of the evidence discovered during the search of the vehicle he was in before he was arrested.
Defendant argues that when the district attorney's office chose not to charge Jones with Prescott's murder, the district attorney's office "reject[ed] . . . the case" against Jones and this rejection dissipated the probable cause that supported Defendant's arrest warrant. (Mot. 5:7, 7:14-26.) Defendant further argues that the officer directing Defendant's arrest knew of this new information, "yet [he] did nothing to advise either the officers [attempting to locate Defendant] or the magistrate that probable cause no longer existed[.]" Id. 5:5-7. Defendant argues that "[h]ad the magistrate been presented this new information, an arrest warrant for [Defendant] could not have been issued." Id. 7:27-28.
The Government counters that "[t]he decision by the district attorney not to bring charges at this time does not in any way invitiate the probable cause that existed for the arrest of Marcus Jones or the defendant" since "the District Attorney for the County of Alameda has the sole discretion to decide what charges to bring, against whom to bring those charges, and when to bring those charges in the murder of Earnest Prescott." (Opp'n to Mot. to Suppress 4:23-25, 13-16.)
"It is true that when officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate. . . ." United States v. Spencer, 530 F.3d 1003, 1008 (D.C. Cir. 2008). However, the decision by the district attorney's office to charge Jones with drug charges and evasion was an independent decision by the district attorney's office to exercise its "sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek." Dix v. Superior Court, 53 Cal.3d 442, 451 (1991). Defendant offers only assumptions and argument regarding what motivated the district attorney's decision not to charge Jones in connection with Prescott's death on January 21, 2010. This is not a new fact that negates probable cause to arrest Defendant. See Spencer, 530 F.3d at 1008 (stating "a legal conclusion reached by a different judge in a different matter" is not a new fact which negates probable cause). Therefore, Defendant's motion to suppress based on the argument that the arrest warrant was invalid is DENIED.
B. Search of Residence
Defendant also "seeks the suppression of the evidence found as the result of the search of 378 Collins Court, discovered pursuant to the execution of [a state] search warrant issued without probable cause." (Mot. to Suppress 3:10-12.) Defendant argues "[i]t is evident from the search warrant affidavit that no probable cause existed linking any contraband or other evidence related to a homicide to 378 Collins Court." Id. 3:12-13.
The Government counters that the affidavit supporting probable cause for the search warrant for 378 Collins Court contains sufficient probable cause establishing a reasonable nexus between the items to be seized and the place to be searched. (Opp'n to Mot. to Suppress 7:8-10.) The Government further argues that assuming arguendo that probable cause was lacking for the issuance of the search warrant, the officer had an objective good faith belief in the validity of the search warrant. Id. 11:3-5.
Gantt authored an affidavit in support of probable cause to search 378 Collins Court for evidence related to Prescott's murder, including the murder weapon and documents containing accounts of the crime. Defendant argues there was insufficient evidence linking him to 378 Collins Court in Gantt's affidavit to support the issuance of the search warrant for 378 Collins Court. Gantt avers as follows in his affidavit:
On January 21, 2010 at 7:50 AM I received information from OPD Officers . . . that they observed [Defendant] leave from the driveway of 378 Collins Court in Mountain House California. [Defendant] was observed wearing a gray colored two piece jogging style suit.
[Defendant] was subsequently arrested for his outstanding murder warrant. . . .
Based on phone records your affiant has obtained on [Defendant] it appears in the evening his cellular phone consistently hit off phone towers in the City of Mountain House. DMV records and Alameda Corpus records list addresses for [Defendant] at 411 Fairmont Ave # 104 Oakland Ca. and 5049 Shalimar Circle Fremont Ca. 94555. Based on the investigation it appears [Defendant] is not staying at the aforementioned addresses.
(Mot. to Suppress Ex. B.)
"Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness," for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." U.S. v. Leon, 468 U.S. 897, 922 (1984) (citation and internal quotation marks omitted). "Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-923. Suppression of evidence is appropriate "in cases where the issuing magistrate wholly abandoned his judicial role[.]" Id. at 923. "[I]n such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Id. (citations omitted).
Gantt's affidavit set forth details of the investigation, the place to be searched, Defendant's connection to that place, and the items sought there. Whether or not the magistrate's determination that there was a reasonable likelihood that the items to be seized could be found at 378 Collins Court was correct, Gantt had objective good faith in relying on that warrant since his affidavit is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923.
Therefore, Defendant's motion to suppress the evidence obtained after searching 378 Collins Court pursuant to the search warrant is DENIED.
II. Motion for Hearing
Defendant seeks a hearing under Franks v. Delaware, 438 U.S. 154 (1978), arguing Gantt misrepresented key witness statements in his affidavits in support of the arrest warrant for Defendant and the search warrant of 378 Collins Court. (Mot. for Hearing 3:12-14.) The Government counters that Gantt's "affidavits do not contain any false statements intentionally made, or any statement made with reckless disregard for the truth that was material to a finding of probable cause." (Opp'n to Mot. for Hearing 4:20-22, ECF No. 48.)
"[W]here 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 if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request."Franks, 438 U.S. at 155-156.
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of 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 witnesses should be furnished, or their absence satisfactorily explained.Id. at 171.
Gantt's affidavits in support of an arrest warrant for Defendant and a search warrant for 378 Collins Court set forth the same information regarding the investigation of Prescott's murder. The following averments in Gantt's affidavits form the basis of Defendant's arguments:
Sergeant Galindo and I made contact with Trina Bayne inside her residence. Also present were Bayne's friend[] . . . Shawonia Wysinger. Bayne told us that the victim had come over to visit during the evening. Bayne stated that right before the shooting [Defendant] . . . called her home phone and she did not answer it. Wysinger called [Defendant] back seconds later on his cellular telephone . . . and he told her to tell Prescott to come outside. Bayne stated that she walked Prescott out of her apartment. . . .
. . .
Sergeant Galindo and I conducted interviews with Trina Bayne and Shawonia Wysinger. . . . Bayne stated that [Defendant] uses her apartment to package and sell drugs and he and Prescott were partners in the "drug game".
. . .
After speaking with Wysinger and Bayne, they both confirmed that [Defendant] called Bayne's house on the night of the murder and told them to tell Prescott to come outside. Wysinger stated that she was on her cellular phone with [Defendant] when Prescott walked out of the residence. [Defendant] asked Wysinger, "Where's Ern at["] (aka Prescott) and she told him "Ern" was outside. [Defendant] changed his story and said "no stupid I didn't tell you that[.]" Wysinger said then she heard several gunshot[s] coming from outside of the residence, [and] she hung up the phone with [Defendant].
. . .
Your affiant believes [Defendant] on the night of the murder called the victim['s] friends and asked them to have Prescott come from inside their apartment . . . so he could be shot.
(Mot. to Suppress Ex. B.)
Defendant argues that Gantt included incorrect statements from witnesses Bayne and Wysinger in his affidavits. (Mot. for Hearing 5:15-16.) Defendant submits a statement from Bayne in which she identifies errors in Gantt's affidavits; Bayne states: "I did not say that Prescott and [Defendant] were partners in the drug game. I said they were best friends and that they ran together, and did everything together." Id. Ex. A. Defendant argues "[m]ere partners in the drug game versus best friends that did everything is a very different story[,] . . . [t]he former give[s] one a motive for murder[,] the latter cuts against it." Id. 5:21-23.
In response, the Government reproduces portions of the transcript of Gantt's interview with Bayne and also the audio recording of that portion of the interview. (Opp'n to Mot. for Hearing 7:1-22, Attachment 1; Errata to Opp'n 2:8-17, ECF No. 52.) The transcript and recording support Gantt's statements in his affidavits.
Defendant also submits a declaration from a private investigator who spoke with Wysinger and declares: Wysinger said Defendant "did not ask her to send Ern (Ernest Prescott) outside as the search warrant affidavit indicates." (Mot. for Hearing Ex. B.) The private investigator declares that when Wysinger called Defendant back he "asked her where Ern was. She told [Defendant] that Ern was already outside. She asked [Defendant] if he wanted her to go outside and get Ern. [Defendant] replied, `No, don't be stupid.' They hung up the phone and seconds later she heard shots outside." Id. Defendant argues "Gantt twisted the facts in the affidavit . . . [and] presented a neat theory to the magistrate: `that [Defendant] on the night of the murder called the victim friends and asked them to have Prescott come from inside their apartment . . . so he could be shot.'" Id. 5:28-6:2.
In response, the Government reproduces the portion of the transcript of Gantt's interview with Wysinger and the audio recording of the same. (Opp'n to Mot. for Hearing 9:14-17, Attachment 1; Errata to Opp'n 2:8-17, ECF No. 52.) This evidence supports Gantt's affidavits. Specifically, the transcript and recording support Gantt's averments in his affidavits that Defendant told Wysinger to tell Prescott to go outside.
The Government has demonstrated that Gantt's affidavits accurately relayed the witnesses statements; the transcripts and recordings of Gantt's interviews with the witnesses do not show any material misrepresentations. Therefore, Defendant has failed to make a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by [Gantt] in the warrant affidavit[s.]" Franks, 438 U.S. at 155-156. Therefore, Defendant's motion for Franks hearing is DENIED.
IT IS SO ORDERED.