United States District Court, D. Oregon
Billy J. Williams, ACTING UNITED STATES ATTORNEY, District of Oregon, Geoffrey A. Barrow ASSISTANT UNITED STATES ATTORNEY, Pamala R. Holsinger, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, Attorneys for Plaintiff.
Todd Bofferding, Attorney at Law, Hood River, Oregon, Attorney for Defendant
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Defendant Rubio Gualberto Tzui-Uc moves to suppress evidence seized in two separate searches. He also moves to exclude his identification by a confidential source (CS). An evidentiary hearing was conducted on July 8, 2015. For the reasons discussed below, I deny the motions.
On March 6, 2014, the grand jury returned an indictment charging Defendant, along with several co-defendants, with conspiracy to distribute and possess with intent to distribute, heroin, methamphetamine, and cocaine, and to use communication facilities in furtherance of drug trafficking, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), 846, 952, and 960. Trial is set for August 17, 2015.
As part of its investigation into the drug distribution conspiracy, law enforcement agents used a CS to engage in a controlled buy of cocaine from Defendant. They then obtained a search warrant for a storage unit where they found and seized approximately three pounds of methamphetamine. Several months later, shortly after the grand jury returned the indictment, law enforcement agents obtained a search warrant for Defendant's residence where they found and seized small quantities of marijuana, methamphetamine, and cocaine, as well as cell phones, financial records, a drug ledger, and a digital scale. More detailed facts relevant to the specific issues raised by the motions are noted below.
I. Summary of the Motions
Both Defendant himself, and Mr. Bofferding at Defendant's request, filed motions to suppress. Defendant also filed a supplemental memorandum in support of the motions. Together, the motions and the supplemental memorandum raise the following issues: (1) whether recordings by the CS are admissible; (2) whether showing the CS an Oregon Department of Motor Vehicles (DMV) driver's license photograph of Defendant was unduly suggestive; (3) whether the search of the storage unit was supported by probable cause; (4) whether the affidavit in support of the search warrant of Defendant's home contained stale information; (5) whether the affidavit in support of the search warrant of Defendant's home described the residence with particularity; and (6) whether Defendant is entitled to a Franks hearing.
II. Request for a Franks Hearing
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that, under certain circumstances, a defendant is entitled to an evidentiary hearing where he can attack the veracity of a search warrant affidavit or challenge the omission of material facts in the affidavit. When a defendant seeks a Franks hearing because of
allegations of material false statements or omissions in an affidavit supporting a search warrant, a defendant must make a substantial preliminary showing that false or misleading statements were (1) deliberately or recklessly included in an affidavit submitted in support of a search warrant; and (2) necessary to the finding of probable cause.
United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (internal quotation marks omitted).
More specifically, five requirements must be satisfied before a defendant is entitled to a hearing under Franks:
(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause.
United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (internal quotation marks omitted); see also United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008) (to "justify a Franks hearing, a defendant must make specific allegations, allege a deliberate false statement or reckless disregard for the truth, and support the claim with a detailed offer of proof"); United States v. Ruddell, 71 F.3d 331, 334 (9th Cir. 1995) (the "lack of an affidavit or sworn statement offering proof of deliberate falsehood... is enough in itself to defeat [a] demand for an evidentiary hearing.").
Defendant's supplemental memorandum requesting a Franks hearing fails to identify which statements in which search warrant affidavit he contends are false or misleading and fails to identify any material omissions. In a reply memorandum filed July 7, 2015, he cites to approximately twenty-four allegedly false statements and notes two alleged omissions.
Although the reply memorandum attempts to cure the deficiencies in Defendant's initial supplemental memorandum, it fails to do so and fails to support Defendant's request for a Franks hearing. First, the reply memorandum cites to the Government's response, ECF 508, to Defendant's motions and not to any actual statements made in either of the search warrant affidavits. While this may be a shortcut method of citing to the warrant affidavits, in many cases the citation to the page and line in the Government's response is not, in fact, to a quote from an affidavit. For example, Defendant cites to page 4, lines 4 and 5 of the Government's response, challenging the statement that the "CS told law enforcement that a Hispanic male known as 'Rubio' worked for [co-defendant] Orozco-Lopez as a drug courier." Def.'s Reply at 2. But, this statement in the Government's response is provided as factual background and is not represented to be a statement made by the search warrant affiant. Although the Government later notes that Drug Enforcement Administration (DEA) Special Agent Morgan Matthies presented "the above facts" in an affidavit in support of the search of the storage unit, Defendant's citation to a background passage in the Government's response memorandum is not a sufficiently specific challenge to a statement in a warrant affidavit.
Second, even if the citations to the Government's response are sufficient, Defendant's reply memorandum is unsupported by an affidavit or declaration of Defendant stating that the statements are false or misleading. Thus, he fails to meet the requirement of providing a detailed offer of proof. Third, the vast majority of Defendant's challenges are not to statements made by the affiants. His challenges are predominantly to what the CS knew or said or what Orozco-Lopez said. Accordingly, he fails to challenge the veracity of the affiants. The request for a Franks hearing is denied.
III. Recorded Phone Calls & Body Wire
At the evidentiary hearing, Matthies testified that the investigation into the drug distribution conspiracy began when the CS provided information to law enforcement that Orozco-Lopez was distributing methamphetamine and cocaine. As part of that investigation, agents set up a controlled buy for the CS to purchase one ounce of cocaine from Orozco-Lopez, allegedly as a sample for a later purchase of six kilograms of cocaine. The process of arranging the controlled buy included phone calls between the CS and Orozco-Lopez. The CS consented to the recording of ...