Opinion
Case No. 1:03 CR 139 W
May 4, 2004
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR HEARING
This matter is before the court on defendant's request for a Franks hearing. Although initially captioned as a motion to suppress, the substance of defendant's motion challenged the veracity of the affidavit supporting the search warrant that was executed at the defendant's residence. Accordingly, the defendant's motion is more appropriately considered a request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After thorough review and consideration of the pleadings submitted by the parties the court enters the following memorandum decision and order.
DISCUSSION
"Under Franks, a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks v. Delaware, 438 U.S. at 155-56) cert. denied, 525 U.S. 863 (1998); see United States v. Avery, 295 F.3d 1158, 1166 (10th Cir.).cert. denied 537 U.S. 1024 (2002); United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). The "substantial showing" required of the defendant has been clearly set forth by the Supreme Court:
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. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant, Finally, if these requirements are not met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.Franks, 438 U.S. at 171-72.
Based on the information before the court, the defendant has failed to show that he is entitled to an evidentiary hearing under the requirements set forth in Franks, First, although the defendant has suggested that some of the items in the affidavit are incorrect or should not apply to him, the defendant has not met his burden of establishing a threshold showing that the affiant intentionally or recklessly (1) omitted material information from the affidavit, or (2) included false statements in the affidavit, "In the context of a Franks challenge, the focus is the credibility of the affiant." United States v, Corral-Corral, 899 F.2d 927, 934 (10th Cir. 1990). Moreover, "[i]t is not enough to show . . . that an affiant's negligence or innocent mistake resulted in false statements in the affidavit." United States v. Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993). There is nothing before the court to suggest that the affiant deliberately omitted material information from the affidavit that would have impacted a probable cause determination, or that he intentionally or recklessly included false statements in the affidavit. In addition, and significantly, the defendant has failed to furnish or support his claim with any affidavits or sworn or other reliable statements of witnesses.
Moreover, even if the defendant had made the requisite allegations of deliberate falsehood or of reckless disregard for the truth, and even if the allegations had been accompanied by the appropriate offers of proof, the defendant would still not be entitled to a hearing because the information would not have impacted the probable cause determination. For example, with regard to defendant's claim that he was not the owner of the residence on two of the dates listed in the affidavit, even if the court were to eliminate those portions of the affidavit, the affidavit would continue to support a finding of probable cause.
Similarly, the defendant's claim that some of the information in the affidavit was stale is of no consenquence. First, the court notes that "[t]he determination of whether information is stale depends on the nature of the crime and the length of the criminal activity, not simply the number of days that have elapsed between the facts relied upon and the issuance of the warrant." United States v. Le, 173 F.3d 1258, 1266-67 (10th Cir. 1999) (quoting United States v. Mevers, 106 F.3d 936, 939 (10th Cir.), cert. denied, 520 U.S. 1270 (1997)); see also United States v. Brinklow, 560 F.2d 1003, 1005 (10th Cir. 1977) (providing timeliness is not determined by counting the number of days or months between the occurrence of facts relied upon and the issuance of the warrant), cert. denied, 434 U.S. 1047 (1978). The Tenth Circuit has provided that where the offense in question in "ongoing and continuing[,], the passage of time is not of critical importance." United States v. Sturmoski 971 F.2d 452, 457 (10th Cir. 1992): see United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (providing the passage of time is of diminished significance where the activity is protracted and continuous). Moreover, even if the court were to conclude that some of the items were too far removed to be probative of current criminal activity, the affidavit nonetheless contained sufficient current information to support a finding of probable cause.
Finally, the court disagrees with defendant's claim that the affiant's description of the September 15, 2003, controlled purchase was unclear or ambiguous and therefore could not support a finding of probable cause. Although the affiant used the phrase "on this date" rather than listing the actual date of September 15, 2003, the court does not find that the phrase "on this date" rendered the information ambiguous or unreliable. Any question concerning the actual date could have been resolved by referring to the date identified and listed at the bottom of the affidavit.
The case agent and affiant, Ryan Reed, submitted an affidavit indicating that this was, in fact, the case. His sworn statement indicates that the phrase "on this date" refers to September 15, 2003, which was the date of the controlled purchase of narcotics from the defendant at his residence, and that the search warrant was obtained and executed on September 15, 2003.
Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion for a Franks hearing is DENIED.